His Excellency Hans Corell
Under Secretary-General for Legal Affairs
The Legal Counsel
United Nations
Fax: (1212) 963-4879 23rd November, 2001
Your Excellency,
Your letter of 10 October, with its sharp tone and comments on the Khmer Rouge Law as well as an attached revised draft of the Articles of Cooperation has been the subject of my attention over the past few weeks, and we are currently working on our detailed response to the points raised.
However, I would like now to raise with you a difficulty I see with your letter in its blurring of the distinction between the nature and purpose of the Law and the Articles of Cooperation. The Law, which was adopted by the Cambodian legislature under the Constitution of Cambodia, has determined the jurisdiction and competence of the Extraordinary Chambers as well as their composition, organizational structure and decision-making procedures, while the Articles of Cooperation are to determine the modalities of cooperation between the Royal Government of Cambodia and the United Nations in implementing those provisions of the Law concerning foreign technical and financial support.
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. Given the distinction between the two documents, there is no reason for the text of the Law to be duplicated in the Articles of Cooperation (a point I made during our July 2000 discussions). May I repeat my oft-stated reminder to you that under the Constitution of Cambodia the only official language is Khmer, and hence the only official text of the Law is the Khmer language text promulgated.
As to the draft budget you refer to in your letter, I agree that it would be best discussed between us before being submitted to interested Member States, so I would appreciate receiving a copy from you to begin our consideration. Recent reports of statements by various governments of intention of providing support provide a welcome start towards making the Extraordinary Chambers a reality.
Sincerely,
Sok An
Senior Minister in Charge of the office of the Council of Ministers
STATEMENT FROM THE ROYAL GOVERNMENT OF CAMBODIA
IN RESPONSE TO THE ANNOUNCEMENT OF UN PULLOUT FROM
NEGOTIATIONS ON KHMER ROUGE TRIAL
I have received the letter from His Excellency Hans Corell dated 8 February in which he conveys the message that the United Nations will no longer negotiate with the Royal Government of Cambodia towards the establishment of the Extraordinary Chambers. I must express my dismay at this completely unexpected announcement.
It is surprising to read that the UN Secretariat believes 'it is not likely that we would resolve it through further negotiations', considering how far both parties have come precisely through the process of negotiation since the two different drafts for the law were placed onto the negotiating table two and a half years ago. It has by no means been an easy task to sail through uncharted waters and design an unprecedented national court with international participation. Compromises were made on both sides along the way, but I believe that the model we designed, and which was promulgated into Cambodian law on 10 August 2001, forms a sound basis. I believe that the Law establishing the Extraordinary Chambers based within the Courts of Cambodia with international participation and meeting internationally accepted standards embodies all the fundamental principles agreed to between the two sides during the negotiations.
Only three weeks ago I wrote to Excellency Hans Corell along these lines, and provided a detailed response to the eleven points he raised concerning the Law, clarifying our position and suggesting, on a number of points, that the concerns could be addressed in the proposed Articles of Cooperation to be signed by both parties -- a document that we have always said would govern the international participation in the Extraordinary Chambers.
As further background to my statement here today, I am releasing my letters to Excellency Hans Corell dated 23 November 2001 and 22 January 2002, as well as other documents, including the English translation of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. Up till now we have respected Excellency Hans Corell's wish for a “gentlemen's agreement" to keep exchanges between us confidential. However, given the present unilateral action on the side of the United Nations to cut off discussions, and given certain misinterpretations of Cambodia's positions that emerge from the UN briefing on 8 February, it seems highly desirable to place the documents on the public record at this stage.
I would like now to respond directly to the two main points in the long and complicated briefing statement given by Excellency Hans Corell on Friday 8 February: Firstly, a general assertion is made that the Extraordinary Chambers "as currently envisaged, would not guarantee ... independence, impartiality and objectivity", and there is an abstract reference to "international standards of justice" but Excellency Hans Corell does not provide a single instance in which the Law on the Extraordinary Chambers contradicts such standards.
The second major point relates to the relationship between the Cambodian Law establishing the Extraordinary Chambers and the proposed Articles of Cooperation to be signed by both parties. In my letter of 2; November I stated that in our view "the Law, which was adopted by the Cambodian legislature under the Constitution of Cambodia, has determined the jurisdiction and competence of the Extraordinary Chambers as well as their composition, organizational structure and decision-making procedures, while the Articles of Cooperation are to determine the modalities of cooperation between the Royal Government of Cambodia and the United Nations in implementing those provisions of the Law concerning foreign technical and financial support'.
We see a clear distinction between the nature and purpose of the Law and the Articles of Cooperation. In no way do we wish to reduce the Articles of Cooperation 'to the status of a technical and administrative document subordinate to the Law' (to use Excellency Hans Corell's words). Neither is it correct to say (as in the Spokesman for the Secretary-General's words) that the Cambodian government has "rejected the UN proposal' that the UN assistance 'will be governed by the agreement between the UN and Cambodia'. In fact, this is precisely what we envisage to be the role for our Articles of Cooperation, as a normal basis for cooperation between a Member State and the United Nations.
A number of Member States of the United Nations, which have been strong supporters of the negotiations towards establishment of the Khmer Rouge trial, have already expressed their keen desire for the process to continue. (Excerpts from these statements will be made available following this meeting).
Let me say clearly that on the Cambodian side the door remains open to a resumption of negotiations with the United Nations. Article 46 of our Law makes perfectly clear that primacy is given to United Nations participation in the process. It is important to understand that the Law adopted by our legislature was itself the outcome of the complex negotiations between Cambodia and the United Nations, and contains within it a number of significant compromises on our part as well as on theirs.
May I conclude by saying that the Royal Government of Cambodia remains committed to seeking justice for the crimes perpetrated by the Khmer Rouge, on behalf of the Cambodian people and of humanity as a whole. We believe that the Law promulgated on 10 August 2001 provides a sound foundation for such a process based within the Courts of Cambodia with international participation and meeting internationally accepted standards, and we earnestly hope that the United Nations will be a part of this process.
Sok An
Senior Minister in Charge of the Office of the Council of Ministers,
Chairman of the Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders
Phnom Penh, 12 February 2002