ECCC ISSUES DRAFT INTERNAL RULES

UNCLAS SECTION 01 OF 02 PHNOM PENH 002046

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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
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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


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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