[Published in the March 1-14, 2002, Phnom Penh Post.]
A commonly heard argument 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 cooperation.
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 focussed 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.