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Three-shell sleight-of-hand smears the ECCC

Three-shell sleight-of-hand smears the ECCC

Iam married to Helen Jarvis, the head of public affairs for the ECCC (Extraordinary

Chambers in the Courts of Cambodia). However, nothing in this letter is in any way

"inside information." Indeed, my complaint is not that journalists need

better information, but that they don't know what to make of the information they


Cat Barton's "Kickback claims stain the KRT" (Post, February 23, 2007)

falls into that category. She has conflated two quite distinct things: allegations

of ECCC staff being forced to give kickbacks to government officials; and an audit

commissioned by the United Nations Development Program (UNDP) on hiring of Cambodian

ECCC staff.

In doing this, Barton reproduces the deliberate confusion engendered by the February

14 press release of the Open Society Justice Initiative (OSJI). That press release

began by referring to "corruption allegations" and then continued:

"Cambodian financial operations at the ECCC are the subject of ongoing external

investigation. Serious allegations that Cambodian court personnel, including judges,

must kick back a significant percentage of their wages to Cambodian government officials

in exchange for their positions on the court are undermining the credibility of the


The juxtaposition of the two sentences would be taken by most readers to mean that

there are ongoing investigations of the "serious allegations" mentioned

in the second sentence. But that was false; there are no ongoing investigations of

anything, and no investigations of any sort into the "serious allegations."

What exist are periodic audits of Cambodian ECCC financial operations, which were

established at the same time as the ECCC. A separate audit commissioned by UNDP,

far from being ongoing, was completed 12 days before the OSJI press release was issued,

as Barton's article notes. It also was unrelated to any accusations of kickbacks

or "corruption": the question, as stated by UNDP, was whether hiring procedures

were sufficiently transparent.

One wonders how OSJI would respond to a press release stating: "There are ongoing

investigations by prosecutors in New York. Serious allegations that OSJI falsified

charges against the ECCC undermine OSJI's credibility." That would be just as

accurate, and misleading, as the passage above from OSJI's press release.

Instead of rephrasing the OSJI sleight of hand, Barton might have asked a question

that immediately springs to mind: Why did OSJI issue such a false public statement?

The possible answers can be broken down into two categories: (1) OSJI didn't know

it was false; (2) OSJI knew it was false but thought it could get away with it.

If we accept (1), it follows that George Soros, the world's most successful gambler,

spends not insignificant parts of his winnings paying the salaries of incompetents.

I cannot disprove that he does this, but it seems highly unlikely.

This leaves the option that OSJI thought it could get away with it. One argument

in favor of this view is that no journalist seems even to have noticed the OSJI misstatement,

let alone asked the reason for it. But did option (2) have anything going for it

besides journalistic inexperience or laziness? Did OSJI have another reason to proceed

in this way?

There was only one "investigation" (ie audit) that was not established

along with the ECCC itself. That was the audit of hiring transparency.

But when OSJI issued its press release, that audit's report had not been released.

It still has not been released as I write. So why did OSJI, on February 14, cite

an audit of hiring transparency as evidence of concern about "kickbacks"?

Did OSJI know in advance that the audit report on hiring practices was going to say

something that could be interpreted to support its charges? We will see when the

report is released.

The company hired to conduct the audit was Candide Consulting, based in Kuala Lumpur.

Questions that might be of interest to an investigative journalist include: Was the

auditor hired through an open competitive tender? Was the ability to speak Khmer

a factor in selecting the auditor? If somebody (who?) decided that a Cambodian court

could be audited solely in English, did that person investigate the English competency

of the proposed auditor? (Anyone wondering why I pose that question should look at

Candide Consulting's web site, www.candide consulting.com.) Why was a firm selected

that lists its experience as in financial services, education, manufacturing, and

several other areas, but not in the public service or court systems? Were the procedures

used to hire Candide Consulting more or less transparent than the procedures used

to hire Cambodian ECCC staff?

An additional question for UNDP might be: Did the funds that paid for any of the

audits come from donations to support the ECCC? If not, where did they come from?

A further question might be of interest to NGOs that complain about delays in trying

the Khmer Rouge: How much working time of ECCC staff is diverted into answering the

questions of and preparing reports for auditors?

Barton's article includes a summary of an article alleging ECCC kickbacks that appeared

on January 31 in the anti-CPP Khmer newspaper Samleng Yuvakchun Khmer, followed by

the statement that OSJI had called for an investigation "into the allegations."

The implication was that OSJI had called for an investigation specifically of the

allegations in the SYK article. In fact, the OSJI press release did not mention the

article, even though, on the day it was issued in New York, OSJI in Phnom Penh distributed

an English translation of it.

Moreover, Barton's summary is wrong on an interesting point of the SYK article. She

wrote that the story "claimed Cambodian ECCC officials - including judges -

were paying 30 percent" of their salaries in kickbacks. But OSJI's translation

of the SYK story did not just "include" judges in its claims. It made the

claims only about the judges (and co-prosecutor, who is also a judge in the Cambodian

legal system). There was no mention of any other "officials."

The Cambodian judges were not appointed by the administration of the ECCC. They were

appointed by royal decree. So if either UNDP or OSJI was acting on the basis of the

SYK article, they logically should have called for an audit of the palace, not of

the ECCC.

Clearly, OSJI's attempt to imply, without quite saying so, that the January 31 SYK

article was the source of its charges about court employees generally was just as

false as its attempt to base them on "ongoing investigations".

The whole to-do looks more and more like a three-shell trick. Where (and what?) are

the charges? You look under the UNDP shell and there's nothing there. Try the OSJI

shell, cries the huckster, but when you look under it there's only an arrow pointing

to the SYK shell. And that shell is also empty. A journalist who unraveled the connections

between the three shells would be doing a real public service.

Finally, as regards "corruption": I don't know who, if anyone, at the ECCC

gives up part of their salary involuntarily to anyone. (I do know that the government

would be entitled to collect a percentage as income tax but has decided not to do

so, presumably not to further lower the status of Cambodian staff relative to UN

staff, who are also tax-free and receive twice the salary of Cambodians, plus various


People in Cambodia are often asked for payments by people who wouldn't be able to

demand them if the world were a better place. If anyone employed by the ECCC is being

pressured illegitimately to give up part of their salaries, that ought to be stopped.

But anyone in such a situation who gives up something is a victim of corruption,

not a source of it. OSJI and UNDP seem unaware of this distinction.

Allen Myers - Phnom Penh


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