Logo of Phnom Penh Post newspaper Phnom Penh Post - Public disclosure or damage control?

Public disclosure or damage control?

Public disclosure or damage control?


The Extraordinary Chambers in the Courts of Cambodia building on the outskirts of Phnom Penh is the workplace for the international and Cambodian staff. Cambodian staff hiring has been criticized in a UNDP audit report.

Faced with mounting pressure, uncontrollable leaks and a growing PR nightmare, the

UNDP and the war crimes tribunal released a series of critical audit reports this

week which portray the Cambodian side of the Extraordinary Chambers in the Courts

of Cambodia as an administrative failure.

The three reports didn't address the court's judicial activities.

With two top Khmer Rouge leaders detained and charged since July, the judicial side

of the court has been making major progress.

But the combined weight of the three reports dating back as far as January had many

people asking if the administrative side of the court can't operate transparently,

can the legal side be expected to.

Even Peter Foster, the United Nations Assistance to the Khmer Rouge Trial (UNAKRT)

spokesman, acknowledged: "The efficiency and effectiveness of the administration

is obviously directly related to the efficiency and effectiveness of the judicial


"People keep asking me why we subjected ourselves to this at this point,"

said Helen Jarvis, head of the press office of the ECCC.

"Although it is a risk to wash one's dirty linen in public, in the long run,

we think it will be better for the court," she said.

The first audit - in January - lashed out at the entire hiring procedure of the court

and recommended that "taking into account the serious lapses in the recruitment

process to-date, all the recruitments of staff made by ECCC to-date should be nullified

and a new recruitment exercise launched."

But the third report, an August human resources report, called that recommendation

"draconian and unrealistic" and said it would "obviously be extremely

harmful to the interests of the ECCC as an institution, depriving it of its staff

just as it begins its judicial activities."

  • The key findings of the January audit of the ECCC's human resource management


  • Monitoring and oversight by the project board was ineffective
  • Salary scales for Cambodian ECCC staff were too high
  • Staff were hired without meeting the minimum qualifications required for posts
  • There were weaknesses in performance evaluation process
  • There was an unjustified increase in staffing level in 2007 budget

The disclosure of the documents was precipitated by a spate of critical articles

in the international press, which was getting the documents leaked to them outside


Jarvis said the problem was "people who wanted to use the UNDP audit's findings

selectively had access to the document, but people who wanted to get an overall view


The public release of the audits followed an editorial in the Wall Street Journal

by John Hall, an associate professor of law and director of the Centre for Global

Trade and Development at the Chapman University School of Law in California, titled

"Khmer Rouge Tribunal Could Turn into another UN Scandal."

"The tribunal is in serious trouble, and to think otherwise would be delusional,"

Hall said. "But the problems are not necessarily fatal so long as addressed

aggressively, honestly and decisively," he said in an email.

"The tribunal needs aggressive life-saving surgery, not merely a band-aid,"

he said. "But the Cambodians are not solely to blame for what has unfolded.

The diplomatic community and the U.N. have turned a blind eye to the all-too-obvious

corruption and managerial catastrophe at the tribunal...It is time for the international

community to show determination and integrity rather than political expediency. Without

such bold leadership, the tribunal is facing catastrophic failure."

Jarvis complained that when Hall visited Cambodia earlier this year, he approached

the court in a "highly unethical" way. "He came as an academic expert

in international law and didn't request any interviews on the issues he decided to

go public on," she said. The diplomat community in Cambodia watching the tribunal

expressed no great concerns over the audits.

The ECCC "has made solid progress in implementing the recommendations of recent

reviews," said an Australian Embassy spokesperson.

Brad Adams, Asia director of Human Rights Watch, said that while local diplomats

tend to think the kind of errors uncovered in the UNDP audit and UN expert assessment

are just "normal" for Cambodia, diplomats outside Cambodia are more concerned

because they have to justify the expenditure of taxpayers money. The tribunal has

a budget of $56.3 million, much of it from foreign donors and the UN.

"I actually had an ambassador tell me in June that, 'this is just the way things

are done in Cambodia. Every government department charges kickbacks, so this is not

a big deal,'" Adams told the Post via email on October 4. "It is this level

of cynicism that has infected the lack of standards on all levels from the beginning."

Foster, said the ECCC has taken steps to improve recruitment procedures for national

staff to ensure transparency and effectiveness. They have introduced a new personnel

manual and a code of conduct which has a new rule that prohibits "ECCC staff

from receiving or soliciting payments other than salaries for the performance of

official duties."

"It looks like damage control is in full swing," Hall told the Post.

Adams said the rule was unnecessary because bribes are already prohibited by Cambodian

law and UN procedure. "This new statement adds nothing." He said the introduction

of this new rule is tacit acknowledgement of the validity of kickback allegations

made in January 2007 - that Cambodian staffers had to pay a portion of their salary

to the official who got them hired.

Mark Ellis, executive director of the International Bar Association in London, said

in a telephone interview that although the audit reports place another question mark

over the overall effectiveness of the court, he didn't think the reports would hurt

the judicial process.

"I don't think we are in a situation now where you could look at the audits'

findings where they currently stand and have the defense use them as a means of acquittal,"

he said.

"But perception is important, and if the public, especially the Cambodian public,

think the court is simply a political pawn and that the focus is not on justice but

politics then this is not a positive step."

Ellis also said the International Criminal Tribunal for Yugoslavia had been seriously

affected by kickback-style problems. In the early days of the ICTY, the issue of

"fee splitting" arose - where a defendant was hiring a lawyer who would

then pay a portion of the fees they received from the tribunal back to the defendant's


"That is an example of behavior that would really undermine the credibility

of the tribunal," said Ellis. "But there is no suggestion that that is

what is happening here."

Jarvis said important procedural things like the personnel manual should have been

prepared before the court started work, but there wasn't time. The manual has been

underway since last year, she said.

"We didn't have a year to do procedures, we were meant to be operational. We

had to just jump in and we recruited the first two or three rounds of people before

we had procedures in place. I think it is fair to say that the Cambodian government

did not get any assistance from the UNDP or the UN side of the court on all these

management issues, we just got an audit which was not necessarily the most productive

way of dealing with it."


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