AGREEMENT TO ESTABLISH INDEPENDENT COUNSELLOR AT THE ECCC

August 14, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law

Related Documents:
Agreement to Establish an Independent Counsellor
Statement of Friends of ECCC on the Agreement to Establish an Independent
Counsellor

On Tuesday August 11, the United Nations and the Royal Government of
Cambodia signed an Agreement to Establish an Independent Counsellor at the
Extraordinary Chambers in the Courts of Cambodia (“Agreement”). The new
position will help strengthen the human resources management at the ECCC and
provide a mechanism to ensure that all allegations of misconduct are
properly investigated and remedied. Pursuant to this agreement the parties
have selected Mr. Uth Chhorn, the current Auditor General of Cambodia, to
serve as the first Independent Counsellor. This agreement was long
anticipated and has been viewed as a positive development from the parties,
the principal donor countries, and the Tribunal itself.

Background and Necessity for the Agreement

The agreement follows several rounds of negotiations between the parties.
The parties met three times prior to the signing of the agreement – on
December 9, 2008, February 23 2009, and April 6-8 2009. During the
negotiations both parties consulted and received the input of the Friends of
the ECCC, an organization comprised of the Ambassadors of the largest donor
countries.

This is an important development for the Tribunal because it strengthens the
human resources management at the ECCC. The Tribunal has been making a
concerted effort recently to hold the proceedings in an expeditious manner
to comport with due process of law requirements. However one of the main
problems the Tribunal and the parties to the proceedings have faced is a
lack of resources. As the international co-prosecutor Robert Petit remarked
in a press conference on June 24 2009, the court is “under-funded and
under-resourced.”

Perhaps more importantly, the new position bolsters the legitimacy of the
Tribunal amid perceptions of corruption and allegations of inappropriate
political tampering by the government of Cambodia. For example, according to
Transparency International’s Corruption Perceptions Index, Cambodia is
perceived to be one of the most corrupt countries in the world, ranking 166
of 180 (the index defines corruption as the abuse of public office for
private gain and measures the degree to which corruption is perceived to
exist among a country's public officials and politicians.)

More specifically, there have been allegations of inappropriate political
tampering by the government of Cambodia with regard to the decision about
whether additional senior leaders of the Khmer Rouge regime should be
prosecuted at the ECCC. The international and national co-prosecutors are
divided on this issue, but it has been reported that Prime Minister Hun Sen
told French President Nicolas Sarkozy that the court should only prosecute
the five Khmer Rouge leaders who have already been indicted. This prompted
Human Rights Watch to accuse the Prime Minister of trying to use his hold
over the Tribunal’s Cambodian personnel to interfere with the court, which
calls into question the Tribunal’s independence. The international
co-prosecutor Robert Petit commented that it is “disturbing” that elected
officials and other parties think they can tell the court what it should do.

Overview of the Agreement

The Agreement will strengthen the human resources management at the ECCC and
help ensure that international due process of law standards are met. The
Agreement specifies that the Counsellor be a person of high integrity and
good reputation. To further ensure independence, the Counsellor will not be
an employee of the ECCC, the United Nations, or a political appointee of the
Royal Government of Cambodia. Consequently, the costs of establishing and
maintaining this position will be shared equally by the United Nations and
the Royal Government of Cambodia.

When an employee or a person affiliated with the Tribunal suspects
misconduct, he or she will report the alleged misconduct to the Independent
Counsellor. Once the Independent Counsellor receives a complaint, he will
investigate the alleged misconduct. If his findings rise to an appropriate
level he will report such findings to the Deputy Prime Minister of Cambodia
as well as the Assistant Secretary-General for Legal Affairs of the UN, who
together will seek to resolve the matter through appropriate consultations.
Throughout the process, the Independent Counsellor will maintain the
strictest level of confidentiality toward the staff of the ECCC and all
persons will be protected from any retaliation for reporting misconduct in
good faith.

Positive Reaction to the Agreement

The agreement was long anticipated and has been received with the full
support of both the ECCC and the Friends of the ECCC.

The Ambassador of Japan and the Charge d’affaires of France, serving as
Co-Chairs of the Friends of the ECCC, released an official statement on
August 12 to lend their full support. They stated that the Agreement can
provide the credible and effective mechanism needed to further strengthen
the administration of the Courts. It also welcomed the appointment of the
Auditor General of Cambodia as the Independent Counsellor. Although this
organization is not party to the Agreement, it was instrumental to the
entire negotiating process as the final Agreement followed detailed
consultations with the Friends of the ECCC.

The ECCC also views this Agreement as a very positive development. The
Public Affairs Office at the Tribunal held a press conference on August 12
to lend its full support for the Agreement. It noted that even though the
ECCC was not party to the agreement, it stands to benefit greatly because
the new position will improve the administration of the Tribunal and help
address allegations of corruption. The Public Affairs Office emphasized that
the Tribunal is looking forward to welcoming the new Independent Counsellor
and will cooperate fully with him as he discharges his duties.

This long awaited Agreement has been received positively by all concerned
parties. It will strengthen the human resources management at the ECCC and
bolster the legitimacy of the Tribunal amid perceptions of corruption and
allegations of inappropriate political tampering by the government of
Cambodia. It is a very beneficial development for the Tribunal and signifies
another important step toward ensuring that justice is achieved at the ECCC.