ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Wednesday, September 25, 2013

A Cop-Out


There is, of course, a difference between a solution and a cop-out. What the UN did to end the strike of the Cambodian staff was the latter: The genius plan to rob Peter (the UN side of the court) to pay Paul (the Cambodian side of the court) (It is not hard to see how arriving at this idea would have taken absolutely elite sophistication in fundraising and finance). This has made two things crystal clear (they were sufficiently clear before but there is absolutely no doubt about them now): (1) the Cambodian government has no commitment to this process and will neither allocate funds from its budget, nor do the fundraising; and (2) as the Cambodians have always said it to be the case, the UN is responsible for all the court’s funding, be it the international side or the Cambodian side.


Lars Olsen seeks to lead us to believe that the Cambodian government will re-pay this loan. I wonder if Lars Olsen believes this himself. Let’s say the Cambodian side does manage to secure finding from Brunei, Malaysia and Singapore. It is difficult to imagine this will be a sizable amount (my projection is under half a million dollars). Let’s say the Cambodian government receives this money in October at which point they will owe their staff for September and shortly after for October. Is Lars Olsen telling us that they will take the combined contribution of Brunei, Malaysia and Singapore and put it towards repayment of this loan? It does look like Lars Olsen is testing our credulity here. How do I know this? The answer to this is very simple: The most recent history of the Cambodian government taking a loan from the UN in the same manner, promising to re-pay it in the same manner, and not repaying it. That loan was taken in March and there is absolutely no record of the Cambodian government’s diligence in trying to allocate or secure funding to re-pay it. This is exactly what will happen this time too: The Cambodian side of the court will be on strike again come December and the UN will shell out yet another loan to break it.   


Perhaps, Lars Olsen can also explain why the Cambodian staff are getting paid for being on strike (they took a 3-week vacation and are now getting paid for it with UN money) but I am sure if asked he will refer us to the Cambodian government for response. Another perfectly orchestrated instance of international money coming into Cambodia and dissipating straight into the quicksand.


The Cambodian staffer interviewed by the Phnom Penh Post (see below) said a number of very curious things. One, unlike it was the case at the outset of the process when the Cambodian staff at least paid lip service to the purpose of the court, now that no longer even warrants a mention. I stand by my statement below that many international staffers have come through this court by taking positions for what they could get in their domestic jurisdictions and often far below, with some working for very little money. They did it to advance the purpose of the court and for professional interest in the subject-matter in deals with. The Cambodian staffer quoted, on the other hand, makes it clear that the only reason the Cambodian staff are there is because “finding relatively well-paying jobs outside of the tribunal would prove difficult.” This brings me to two: The Cambodian staffer describing salaries on the Cambodian side as “relatively well-paying.” This is an outrage. As noted below, these salaries are 10-15 times what they are in the regular courts of Cambodia and are more than competitive in the region, even in countries that stand head and shoulders above Cambodia economically (with the exception of Singapore and Brunei). This statement demonstrates that much the Cambodian staff have cozied up to the salary levels their economy cannot nearly afford, the salaries that they now take for granted.


The UN slonked out again instead of holding its line and compelling the Cambodian government to secure funding for its own staff, as they are obligated to do by the law which governs this court. By doing so the UN, once again, reinforced the well-entrenched Cambodian attitude that if they do nothing, so long as foreigners are involved in the project, they will figure out how to get them out of Dodge (this attitude does not apply when no foreigners are involved in the project).

Ingrates the Victorious

UN loan to bring end to strike

The Khmer Rouge tribunal yesterday announced a new loan from the court’s UN-funded international side to its beleaguered national component that would theoretically end three weeks of strikes over unpaid salaries.
According to court legal communications officer Lars Olsen, the $1.16 million loan will pay national staffers’ back salaries for the months of June, July and August, but only on the strict condition that the Cambodian government agrees to reimburse the tribunal’s international side in full.
“It is important to understand that the UN’s ability to arrange loans to pay national salaries is not limitless. The loans are coming from the international budget for the ECCC, which is itself facing a financial shortfall,” Olsen said in an email. “The only sustainable solution to the lack of funding for the salaries of national staff is for the Royal Government to shoulder its responsibility by meeting its obligation to pay these national salaries.”
Government spokesman Ek Tha declined to comment on the conditions of the loan.
The court’s international side offered the national component a similar “bridging fund” to end an identical strike over unpaid salaries in March. Though the terms of that funding also stipulated that it be paid back, so far the government has made no repayments.
However, tribunal spokesman Neth Pheaktra said in an email yesterday that the Cambodian government “will reimburse this loan when the national side secures its funds for the operations”, but admitted that the loan was not a permanent solution.
“Despite this bridging fund, the national side still lacks around $1.8 million needed to fund its operations from September through the end of this year,” Pheaktra said. “All staff [are] still very concern[ed] of the further financial crisis in the coming month; in consequence, they maybe face … new delayed payment.”
Nonetheless, he added, the court’s Office of Administration had called on striking national staffers to return to their posts today.
One national staffer, who declined to be named, said that court staffers had been willing to put up with the tumultuous funding situation because finding relatively well-paying jobs outside of the tribunal would prove difficult.
Though he would be returning to work today, he said, he was unconvinced that the tribunal had seen the last of its problems.
“Since I have been expecting to be called to return from striking to come to work, and now I have received that call, I am obliged to resume work tomorrow,” the staffer said in an email.
“This does not give me hope that the problem is over, as the stakeholders appear to have taken it for granted all along. The big strike in March robbed the court of its 10 [sitting] days. I hoped that lesson would be learnt but it [wasn’t].”
Program officer Panhavuth Long of the Cambodian Justice Initiative also expressed doubt that the court’s financial problems would be gone for long.
“I would say that it is good news that the staff salaries for June, July and August can be paid, but the funding issue will remain to be a problem,” he said.
“I would say that it is very important that the government do more,” he added. “They have to show whether or not their commitment can be sustained.”

Monday, September 9, 2013

The Striking Ingrates

The Cambodian side of the court is on strike again. This time it is different: Most of them are on strike.

The reason for the strike is what it was before – money. Reportedly, last time the staff on the Cambodian side of the court were paid was May. Not having been paid for 3 months sounds drastic. By Western standards that is. In the Cambodian system salary arrears are not uncommon. The existence of a precedent is, however, no excuse for not paying people. What we do need to be mindful of is that for the last 7 years the staffers on the Cambodian side have been paid 10-15 times the salary they would have received working in the regular courts of Cambodia. This court was set up “in the courts of Cambodia” and from the get-go the idea was that the local staff would simply be transferred to this court from their positions in the regular courts of Cambodia. There was no talk about hiking their salaries 10-15 times. Then, the argument of the Cambodian government went that it would be unfair and demoralizing for the Cambodian staff to be paid that much less than the UN staff. The rates for the local staff were then set at the level of the UN national officers and those have been the salaries they have been getting in the last 7 years. The nagging question here is this: Why would Cambodian civil servants be paid salaries at the level of the UN national officers when they are not employed by the UN? Did the Cambodian government find a lake of oil the size of that of Saudi Arabia and can now afford to pay all its staff UN-level salaries? The answer to that lies in a speech Hun Sen made in 2004. Discussing Cambodia’s commitment to the ECCC he said that Cambodia was not in a position to provide and would not provide anything other than “a building, drinking water and electricity.” That speech sent a clear message to the international community gathered around the idea of a court to try the Khmer Rouge: You are paying for the whole thing. Had the Cambodian government been paying the salaries of the Cambodian side of this court, they would have been very careful with the raises given to its judicial system staff to transfer to the ECCC. But, when the 2004 speech made it clear that the donors would be footing the whole bill (the international donors got stuck with a bill for drinking water and electricity too), the Cambodian government started clamoring for outrageous raises for its staff to ensure they would not be “demoralized.” And that is how the current boon was born. The international donors have been very reluctant to fund the Cambodian side of the court and funding gaps followed as a result. Throughout the process the Cambodian government has not contributed a dime. Now, had the salaries of the Cambodian judicial staff not been so ridiculously inflated, the money contributed to the Cambodian side of the court until now would have been sufficient to keep the Cambodian side of these proceedings going until the last Khmer Rouge suspect in Cambodia died of natural causes. Instead, the boon grew year after year. Each time there would be a funding gap the Cambodian side would clamor and threaten action. This is not at all what happens in the regular Cambodian courts – when people do not get paid for a few months there is usually no clamor and no threats and everyone patiently waits to get paid. But, this court is understood as foreign and the Cambodian side feels that money is owed to it by foreigners, not its own employer, the Cambodian government. When money is owed by foreigners all bets are off in Cambodia. Of course, that simple fact that legally it is the Cambodian government’s responsibility to secure funding for its staff’s salaries, however it does it, is entirely lost on those currently on strike: They are striking against the evil foreigners who refuse to give their government money to pay their salaries. This logic does not work on any rational-thinking level but it works perfectly with the Cambodian mentality: The foreigners are easy to criticize because they will be gone; the Cambodian government is not to be criticized because this is whom the Cambodian side reports to now (judicial independence means absolutely nothing in Cambodia) and whom they will be reporting to long after this process is over.

Perhaps, my favorite is the statements of some on the Cambodian side that the nonpayment of their salaries has put the wellbeing of their families at risk. Let’s see about this argument. When these same people worked in the Cambodian courts for $200 a month, the wellbeing of their families was just fine. Now that many of them have worked for this court for 7 years making $2,000 a month, things have gotten so dire for them that they can no longer afford to slog through a funding shortfall on their savings. Let’s see what we are talking about here when it comes to dollars and cents. A Cambodian court clerk employed by a regular Cambodian court was expecting to make $200 (it is less but let’s say arguendo it was $200). This amount to $2,400 a year which is $28,800 over a 7-year period. Through the boon created by the ECCC s/he instead ended up getting $24,000 a year which is $168,000 over the 7-year period. Difference? $140,000. And the families of the staff of the Cambodian side are still on the brink of starvation every time the paycheck does not come in on time.

Lastly, given the level of qualifications of all Cambodian staff (not most but all) that is grossly under par for this type of process which has resulted in the UN side doing all the work (not most but all; I would like to see a single motion – just one – written by the Cambodian Co-Prosecutor, for example), one would imagine that the Cambodian side would treat this process both as an opportunity to learn the law (not just the international law; its own law that another group of foreign lawyers had written for them) and enjoy the ridiculously inflated and completely undeserved salaries set at the rates (the UN national officer rates for Cambodia) they are not eligible for. But instead they go on strike and blame the international donors for creating this situation, instead of blaming their own employer, the Cambodian government. Then, of course, there is the commitment to what the process is actually about (besides what it might look like it is not about enriching a court clerk by paying him or her an extra $140,000 of 7 years) – adjudication of acts committed during the most egregious period of Cambodia’s modern history. One would think that it is the local staff that would be most committed to this process for this reason, funding shortfalls or not. In reality, however, 3-month Western interns have more of a commitment to it for this reason than the local staff. One might argue that the Western interns are there to earn their stripes and will be correct about that but at least their goal, unlike that of the Cambodian staff, is in concert with that of this process and pushes it forward, not stymies it.          

Friday, September 6, 2013

National Staff Walk-off

Information regarding absent national staff members

The following information is provided to ensure that the general public has access to accurate information about the current situation at the Extraordinary Chambers in the Courts of Cambodia  (ECCC).

The ECCC Office of Administration was in early August 2013 informed by a number of national staff members, that unless a solution was found for the payment of several months overdue salary, they would be absent from work from 1 September 2013 until a solution was found.  Consequently, on Monday 2 September 2013,  a total of 134 national staff members did not report for duty.

The national staff members, judges and officials of the ECCC have not received salary for the months of June, July and August. The current budget shortfall for the national component of the ECCC is about US$ 2.9 million for 2013.

Both the Royal Government of Cambodia and the United Nations are in close dialogue with international donor countries with the aim of securing sufficient funding and have appealed to the donors to come forward with funding.