Sok An, head of the Council of Ministers and the government’s lead negotiator with the UN on the Khmer Rouge war crimes trial, distributed to reporters Tuesday the last two letters he wrote to UN legal counsel Hans Corell.
The letters, dated Nov 23, 2001, and Jan 22, 2002, focus mostly on technical details. Reading the letters, it is difficult to tell whether Sok An was putting forth a good-faith effort to move forward, as he claims, or obstructing the trial’s progress, as Corell has contended.
But the letters do provide a glimpse into the back-and-forth negotiations that went on for 4 1/2 years—and now seem to have ended with Corell’s unexpected announcement last Friday that the UN, frustrated by what it said was Cambodia’s unwillingness to cooperate, was pulling out of the proposed trial.
The two letters show only one side of the correspondence.
Sok An felt it would be inappropriate to release Corell’s replies, a source close to the minister said. But in his announcement, Corell described the contents of his letters to Sok An, sometimes quoting them, making it possible to reconstruct the dialogue between the two men.
The main reason Corell cited for ending UN participation was the Cambodian government’s insistence that its own law on the tribunal (referred to as the “Extraordinary Chambers”) supersede its yet-to-be-finalized agreement with the UN (referred to as the “Articles of Cooperation”) as the governing document for the trial proceedings.
The Cambodian law, drafted with UN consultation, was passed on Aug 10, 2001, against the UN’s wishes. “We asked the Government not to present the Law to Parliament before we had reached an agreement. In spite of that, the Government went ahead and presented a draft law to Parliament,” Corell said.
Sok An apparently sent a copy of the law to Corell on Aug 30. Corell said he replied on Oct 10 and “stated that there remained for the United Nations a number of issues of concern,” primarily the disagreement over which document would supercede the other. Sok An characterized this letter as having a “sharp tone.”
Sok An replied on Nov 23. “While the Articles of Cooperation may clarify certain nuances in the Law, and elaborate certain details, it is not possible for them to modify, let alone prevail over, a law that has just been promulgated,” he wrote.
Corell considered this position stubborn, but it is not clear that Sok An meant to be obstinate. It is possible the two men merely differed in their perceptions of the two documents.
Sok An called the law that passed the National Assembly a major achievement in setting out “the jurisdiction and competence of the Extraordinary Chambers as well as their composition, organizational structure and decision-making procedures.”
He considered the UN agreement a complementary document which would outline the UN’s role in the trial. As such, the two documents would not conflict.
But Sok An saw no reason for any negotiation on the wording of the Cambodian law. This became clear in the Jan 22 letter, in which Sok An answers in detail Corell’s questions about specific provisions in the law.
For example, Corell appears to have asked why a reference to the 1973 Convention on Internationally Protected Persons was deleted from the original draft law. Sok An answers that it was discovered that Cambodia is not a signatory to that particular convention.
Corell apparently wanted clearer wording that defendants could choose their own lawyers; the law states only that they are entitled to legal representation. Sok An said this could be clarified in the Articles of Cooperation.
But when Corell apparently wanted to change the law’s wording on amnesties, Sok An stood firm. Corell apparently wanted to add a sentence that no pardons or amnesties, past or future, would be recognized by the tribunal. Ieng Sary, one the top Khmer Rouge leaders, received a pardon for defecting to the government in 1996.
Sok An maintained that the change Corell wanted would have made the Cambodian law unconstitutional.
“I wish to point out that in our third round of negotiations this second sentence was not brought to the table as a proposed addition to our Draft Law….It is of some surprise to me that you raise this point again, as I understood that our two delegations had reached consensus in March 2000….The Royal Government of Cambodia could never have agreed to introduce wording into the Law that would conflict with the Constitution,” Sok An wrote.
Corell saw Sok An’s attempt to smooth over these details as proof of his intractibility. At Friday’s press conference in New York, Corell said he was dismayed when the Cambodian law was passed before the UN agreement was reached, but that he gave the government one last chance to change its position.
Corell’s perception of Sok An’s Nov 23 letter was that “I received a message that there is no way that the Law will be changed or amended. We can have [only] some marginal adjustments.”
Based on that message, the UN made its decision to pull out.