ECCC ISSUES DRAFT INTERNAL RULES

UNCLAS SECTION 01 OF 02 PHNOM PENH 002046 SIPDIS SENSITIVE SIPDIS STATE FOR EAP/MLS; S/WCI E.O. 12958: N/A TAGS: PHUM KJUS EAID CB SUBJECT: ECCC ISSUES DRAFT INTERNAL RULES ¶1. (SBU) Summary. The Khmer Rouge Tribunal's (ECCC) Rules Committee released the draft internal rules for public comment on November 3, providing two weeks for civil society and others to give feedback on the proposed rules. Informal soundings from sources within the ECCC, the diplomatic community, as well as NGO observers suggests that there are several contentious areas receiving attention, particularly with respect to allowing victims to become civil parties to the proceedings, as well as in absentia trials. The good news is that the draft rules represent a good starting point for the judges' plenary session discussions, which will begin on November 20 and end on Friday, November 24 when the judges hopefully will finalize and vote on the ECCC's internal rules. End Summary. Draft Internal Rules Issued -------------- ¶2. (U) On October 27, the Rules Committee finished the draft internal rules and procedures governing the offices and work of the Extraordinary Chambers in the Courts of Cambodia (ECCC). The draft rules were posted on the court's website on November 3 in the three languages of the court: English, Khmer, and French. The ECCC is allowing two weeks for public comment, which has been forthcoming from quarters within the ECCC, the diplomatic community, as well as civil society and NGO observers. Public comment received so far, however, has not been as great as expected, noted UN public affairs officer Peter Foster, who told us that the Cambodian media and civil society groups have been slow in responding. Foster opined that despite ECCC assurances that the 82-page draft rules would be available for public comment, many reportedly did not believe that it would happen. (Note: Given that many local NGOs have little experience with international law and genocide trials, they have been slow to weigh in on rules drafted by qualified jurists. Our understanding is that the international members of the rules committee did the lion's share of the work in developing the draft. End note.) ¶3. (SBU) According to several sources, the major area for upcoming discussion during the plenary session will likely center on the proposed role afforded to victims and victims associations as civil parties to the proceedings. Opening the door to victims on such a potentially large scale could ;have a significant impact on the court. The Japanese Embassy is particularly sensitive to this point, and raised it at the last Friends of the ECCC meeting, as well as more recently with Emboffs. In addition to the time and administrative burden, the Japanese are worried about the added financial burden to a court that is already struggling with inadequate financing. Rule 27, Section 10 in the draft states that civil parties unable to afford an attorney may be able to seek financial assistance from the ECCC's proposed Victims Unit. This is bracketed language that is open for discussion, but it is clear that the Japanese will oppose it and the Japanese judge reportedly is opposed as well. ¶4. (SBU) Another issue emerging as a topic of debate surrounds in absentia trials, which are allowed under Cambodian law but are not consistent with international standards. We understand that members of the rules committee disagreed on this subject along international/Cambodian lines. One international ECCC source noted that the 1979 in absentia trials of Pol Pot and Ieng Sary following the Vietnamese occupation of Cambodia were roundly dismissed as political show trials and not recognized as legitimate by the international community. The source continued that it was disappointing that the Cambodian judges continue to support in absentia trials, noting that when Cambodian law and international law are contradictory, the ECCC will follow international law as stipulated in the UN-RGC agreement. ¶5. (SBU) The Open Society's Justice Initiative is preparing a commentary on the proposed rules, focusing on a number of areas, including the role of victims in the proceedings and in absentia trials. ADHOC, the Cambodian Defenders Project (CDP),Legal Aid for Cambodia (LAC) and other NGOs are submitting comments to the umbrella human rights group, the Cambodian Human Rights Action Committee, for joint input to be finalized before the ECCC's deadline for submission. Commentary will center on the supermajority decision-making process, victim participation, public access, and rights of the defendants. Dina Nay of the Khmer Institute for Democracy is concerned about protection of defendants' rights and in absentia trials. Comment PHNOM PENH 00002046 002 OF 002 -------------- ¶6. (SBU) The attention focused on victims as civil parties within the draft rules has been attributed to the deputy international co-investigating judge, who reportedly has a strong interest in victims' rights and their role in international tribunals. However, we have heard a consistent message that the draft rules reflect a reasoned attempt to codify the ECCC's internal rules and regulations, and a good point of departure for the plenary session's consideration and debate from November 20-24. There has been some criticism of minor points throughout the document, but we anticipate that victims and in absentia trials will be two main areas of discussion. The pressure will be on the judges to arrive at consensus by the end of the plenary, as the prosecutor's office reportedly is prepared to issue indictments before the year's end. U.S. judge Martin Karopkin plans to call on the Ambassador during the plenary to update us on the ECCC's progress. End Comment. MUSSOMELI