Acommonly heard argu-ment from defenders of the UN withdrawal from the KR trials
- mainly ultra-reactionary US politicians and gullible NGOs - is that the Cambodian
government broke an "agreement" or "memorandum of understanding"
reached with the UN in July 2000.
For example, ADHOC's report "Human Rights Situation in Cambodia 2001" states,
"... there are still a number of discrepancies between the Memorandum of Understanding
and the Khmer Rouge Tribunal Law ... if the government does not incorporate the terms
of the MoU into the Khmer Rouge Tribunal Law, why did the government agree with the
United Nations upon the Memorandum in the first place[?]"
The short answer to ADHOC's question is: "It didn't." No MoU has been agreed.
After several rounds of negotiations, the last in July 2000, there was agreement
on a number of questions, and some remaining disagreements. The agreements were not
written into any document formally accepted by both sides, but most of them were
eventually incorporated into the law establishing the Extraordinary Chambers.
Shortly after the departure of the UN delegation, quotations began circulating from
a document usually described as an "agreement" between the Cambodian government
and the UN. Calling the document "changes agreed upon by United Nations Under
Secretary-General Hans Corell and the Minister of the Council of Ministers Sok An
on July 7, 2000", the Phnom Penh Post published the entire document on the internet.
In fact, the document was really the UN's proposal for an MoU, not an agreed text.
It was presented to the Cambodian government for its consideration as the UN delegation
was leaving Phnom Penh. The government's task force for the KR trial pointed out
in a letter published in the November 24-December 7, 2000, Phnom Penh Post that an
agreement could not have been signed on July 7, since the talks had concluded on
July 6, and that none of the documents circulating bore the signature of either party:
all were drafts, working documents.
This was acknowledged by the UN in New York at the conclusion of the talks in July.
A "Statement Attributable to the Spokesman for the Secretary-General" noted:
"Mr Corell provided his Cambodian counterpart, Mr Sok An ... with a draft Memorandum
of Understanding ..." (My emphasis.)
But when political axes are sharpened, facts that raise their heads risk decapitation.
Moreover, the contempt for facts displayed by ADHOC and other critics has been encouraged
by an obfuscation carried out by Corell's UN Office of Legal Affairs (OLA).
Corell and the OLA have regularly referred to "the MoU to be signed between"
Cambodia and the UN. This is accurate in the sense that an MoU would need to be signed
before the UN participated in the trials. But lawyers choose their words carefully,
and in this case they chose for ambiguity: The phrase can also be misinterpreted
to suggest that an MoU has already been agreed and is merely awaiting the formality
of signing.
Interestingly, Corell expressed both of these two quite different ideas in his February
8, 2002, press conference. In his prepared statement (essentially the content of
his letter to the Cambodian government), he said: "During that period [July
2000-August 2001], the United Nations provided numerous suggestions aimed at assisting
the Government in establishing a credible process and worked closely with Minister
Sok An in drawing up an agreement on the establishment and operation of the Chambers."
(Emphasis added.)
In fact, there is little evidence of the OLA doing anything more than sending an
occasional rude letter during that time. But the words I have italicized are an admission
by Corell that the MoU, far from being finished in July 2000, still needed "drawing
up".
However, in the same statement, Corell also said just the opposite. He described
the draft memorandum, which he had presented to the Cambodian government as he was
leaving Phnom Penh, as "the text of the agreement to be signed", which
he claimed had been "subjected ... to a detailed scrutiny" by both parties
before his departure.
Some may find it hard to believe that the UN Deputy Secretary-General for Legal Affairs
would deliberately misrepresent the status of the negotiations. They should read
the transcript of his February 8 press conference. Asked by a reporter to "be
more specific about what particular standards and procedures" he objected to
in the KR trial law, Corell first spouted several sentences of meaningless waffle.
Finally, however, he ventured: "But there are several issues, which we had raised
to the Government. One of them, for example, is that the accused would not be allowed
to appoint counsel of their own choosing."
If Corell had read Sok An's January 22 letter to him, as he said he had, he would
have known that it stated quite explicitly that Cambodian law already guaranteed
defendants this right, and that the Cambodian government was willing to have it specified
in the MoU as well, if that was felt necessary. Corell has not issued a correction
of his untruth, and the "government refusal to allow defendants to choose their
counsel" is already becoming a media-NGO article of faith along with "the
MoU agreed in July 2000".
The UN can also be accused of misrepresenting the disagreement about the status of
any eventual MoU. At the February 8 press conference, Kofi Annan's spokesman, Fred
Eckhard, said that the UN's letter withdrawing from the negotiations gave as one
of its two reasons: "Second, the Government rejected the United Nations proposal
that the assistance that the United Nations would provide will be governed by the
agreement between the United Nations and Cambodia. Cambodia insists that only its
own rules would govern such assistance."
This was a double untruth. First, the Cambodian government has said repeatedly that
the KR trial law would govern the trials, and the MoU would govern UN assistance
and participation. Secondly, Eckhard's summary misrepresented the UN letter, as Corell
described it. The disagreement was not over what document would govern UN assistance,
but what document would govern the conduct of the trials.
Cambodia, Corell complained, wanted to reduce the MoU "to the status of a technical,
administrative document subordinate to the Law". That would "deprive it
of its substantive role of ensuring that international standards of justice ... would
be maintained" in the trials.
Leaving out loaded words like "subordinate", the government position, presented
by Sok An at his February 12 press conference, is that the law and the MoU deal with
different areas: the trial procedures and UN participation, respectively. This is
not a downgrading of UN concerns, because most of those were already incorporated
in the KR trial law. But it does mean that the MoU would mostly deal with technical
matters of co-operation.
This was not previously regarded as a problem by the OLA - or at least not by Kofi
Annan. His spokesman's statement in July 2000, at the conclusion of the negotiations
in Phnom Penh, said:
"Because the outstanding substantive issues were resolved by the Secretary-General
and Cambodian Prime Minister Samdech Hun Sen [in a meeting in February 2000], the
discussions focused on technical issues involved in forming the tribunal ..."
(Emphasis added.)
The UN wants two bites at the cherry. First it negotiated on the content of the KR
trial law, which resulted in the "supermajority" arrangement and other
compromises. Then it demanded to be allowed to overrule the law with an "agreement"
to which Cambodians never consented and which the Secretary-General previously described
as mainly technical. Echoed by some NGOs, the OLA says the government's refusal to
accept this double-dealing means the government is breaking an agreement.
These are the people, it is necessary to recall, who claim to represent international
standards of justice.
Allen Myers is an Australian currently resident in Cambodia who has been involved
with this issue since the late 1980s, when he joined the international campaign to
have the KR removed from Cambodia's UN seat.
