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.