RGC WORRIED ECCC PROSECUTIONS COULD AFFECT PEACE

C O N F I D E N T I A L SECTION 01 OF 03 PHNOM PENH 000103

SIPDIS

SIPDIS

STATE FOR EAP/MLS AND S/WCI

E.O. 12958: DECL: 01/22/2016
TAGS: PREL KJUS PHUM CB
SUBJECT: RGC WORRIED ECCC PROSECUTIONS COULD AFFECT PEACE
AND SECURITY

REF: PHNOM PENH 77

Classified By: Pol/Econ Chief Margaret B. McKean, Reason: 1.4 (b) and
(d)


1. (C) Summary. Former Ambassador David Scheffer's
January 19-21 consultations in Cambodia with DPM Sok An and
members of the ECCC staff suggest there is room for possible
compromise on ongoing discussions over the Extraordinary
Chambers in the Courts of Cambodia (ECCC) internal rules.
However, DPM Sok An underscored RGC concerns that the ECCC's
net of possible indictees may widen too broadly and undermine
Cambodian peace and stability -- a theme he characterized as
a "make or break" point for the CPP. Scheffer and the DPM
reportedly discussed compromise solutions to each of the
outstanding issues facing the internal rules debate and ECCC
Administrator Sean Vissoth reportedly conveyed the DPM's
discussions with Scheffer to the Cambodian side. OSJI,
however, worries that Scheffer may have overstepped his
mandate as his suggestions to DPM Sok An were his alone, and
he did not have the authority to speak on behalf of the
international judges. End Summary.

Scheffer and Sok An Meet, Discuss ECCC
--------------


2. (C) During a January 20 meeting, DPM Sok An and former
ambassador-at-large for War Crimes David Scheffer discussed
the outstanding issues facing the ECCC review committee's
discussion about the Tribunal's internal rules. The meeting
took place at Sok An's private ranch, where Scheffer had an
opportunity to meet with the DPM in a relaxed atmosphere. In
a January 21 telecon with Pol/Econ Chief, Scheffer said that
DPM Sok An was "clearly on board" to push for resolution of
the major issues dividing the international and Cambodian
judges. Sok An told Scheffer that the PM had recently given
public remarks underscoring the RGC's desire to see the top
former Khmer Rouge officials prosecuted. Scheffer
characterized his discussions as good, and that Sok An had
been agreeable on the issues but with his own perspective.
The only other person in the meeting was ECCC Administrator
Sean Vissoth. Scheffer said that throughout the meeting, Sok
An highlighted important points of agreement between the DPM
and Scheffer, urging Vissoth to take detailed notes.


3. (C) The most important issue for the Cambodian
government, according to Scheffer, is RGC fear that
international prosecutor Robert Petit and his staff may
become too overzealous in their investigative work, expanding
the number of potential indictees to an unacceptable degree.
Scheffer said that Sok An's description of his concern on
this point bordered on paranoia, and Scheffer added that he
tried to put the DPM's mind at ease. Both agreed that a
useful compromise would be to add the language from the
UN/RGC agreement on the ECCC to the preamble of the internal
rules, and Scheffer and Sok An reportedly discussed language
centering on the Tribunal's need to be mindful of the RGC's
desire to ensure both justice and security in the ECCC's
work. DPM Sok An underscored that this is a "make or break"
point for the RGC. On the ride back from the DPM's ranch to
the hotel, Sean Vissoth reiterated the optics surrounding the
scope of the ECCC's work must be handled correctly to put at
ease the minds of the CPP Central Committee. (Comment:
While much of the discussion centered on "government"
concerns, it is noteworthy that Vissoth referred to the CPP
Central Committee. End Note.)


4. (C) On the issue of defense counsel, Sok An reportedly
showed no sympathy for the position of Cambodian Bar
Association President Ky Tech, who has made a poor impression
on the international judges during the failed November
plenary as well as in the first week's interaction with the
review committee that ended on Friday, January 19. Ky Tech's
hard-line stance rejecting the appearance of foreign defense
counsel before the ECCC, payment of fees, issues of
reciprocity, and the Cambodian Bar Association's right to
discipline foreign lawyers and clear their public statements
in advance reportedly were rejected by Sok An. However, the
DPM reportedly did allow that he shares Ky Tech's concern
that foreign defense counsel could create a circus-like
atmosphere in the court and that should be avoided. He also
reportedly supported Ky Tech's views that defense counsel and
prosecutors should only issue joint statements outside the

PHNOM PENH 00000103 002 OF 003


courtroom; Scheffer acknowledged that this is not possible.
Scheffer said he pressed Sok An on the issue of defense
counsel, noting that the participation of foreign counsel had
always been anticipated and agreed to by the RGC during the
negotiation process of the ECCC. Sok An reportedly agreed
that this could be finessed by inserting the language in the
ECCC's internal rules, rather than getting an amendment of
the Cambodian Bar Association's rules. (Comment: Sok An had
assured the international donors repeatedly over the past
several years that the RGC would seek an amendment of the
Bar's rules, stressing that this was a technical issue to
overcome and not a difference on substance. The Bar's rules
permit defendants to have foreign lawyers assist them in
their defense, but specifically prohibit foreign counsel from
appearing in court on their client's behalf. It is unclear
if the ECCC's rules allowing foreign counsel to appear will
suffice. Comment continued: Sok An's position on the role
of defense counsel is of note, given that the DPM wrote a
letter to the UN's legal office in early December that was
highly critical of Defense Office head Rupert Skilbeck, and
called for the UN and the RGC to reopen negotiations on the
role of that office -- a request that we understand was
strongly rejected by UN Legal Counsel Nicholas Michel. End
Comment.)


5. (SBU) Another sticking point centers on in absentia
trials, which are permitted under Cambodian law but not
considered good international practice. The Cambodian judges
have insisted that in absentia trials be permitted. Scheffer
confirmed the Cambodian and international judges on January
19 agreed that -- provided a client makes an initial
appearance before the ECCC, defense counsel subsequently may
represent their clients in the courtroom, and video/audio
feed can be provided in the detainee's cell to follow the
proceedings. The point of disagreement, noted Scheffer,
appears to no longer be relevant.


6. (SBU) On the supermajority voting issues and Cambodian
proposals to undermine the UN/RGC agreement redefining how
supermajority voting would work, Scheffer said that this was
a non-starter and could not be walked back. Scheffer added
that DPM Sok An was very supportive of reaffirming the
supermajority rule, but that the DPM offered that he
understood the Cambodian judges' position that they do want
to see a runaway court considering an expanded number of
indictees. Finally, Scheffer and DPM Sok An discussed the
victims unit, an added element to the structure and
administration of the ECCC that some donors and others worry
will eclipse the budget and resources of the Tribunal. Sok
An reportedly noted that the victims unit and their inclusion
as civil parties in the cases before the ECCC is not an
advocacy point of the government, but it is allowed under
Cambodian law and some judges reportedly support the idea.
Sok An said that it is rather meaningless as the likely
defendants have no assets to distribute. Scheffer proposed
that victims' lawyers could be limited to participation in
the opening and closing arguments; Sok An was reportedly
attracted to this proposal.

OSJI's Readout
--------------


7. (C) Pol/Econ Chief met on January 21 with the Open
Society Justice Initiative's (OSJI) Heather Ryan and Tracey
Gurd (please protect) to discuss their reaction to Scheffer's
meetings, as the former Ambassador met with members of the
ECCC staff as well. They registered strong concern that
Scheffer had overstepped the bounds of his mandate and
jeopardized the status of OSJI's mission as a neutral party
to the ECCC's work. Heather Ryan said that OSJI had agreed
to bring Scheffer to Cambodia at the behest of some ECCC
staff members (reftel),but that the former ambassador's
instructions were to urge DPM Sok An to press the Cambodian
judges to abandon their hard-line positions on the remaining
issues in favor of compromise, given that the future of the
ECCC may be on the line.


8. (C) Moreover, OSJI wanted Scheffer to press Sok An on
the issue of political interference, and urge that the RGC
allow the Cambodian judges free rein to make their own
decisions. OSJI and other sources are of the opinion that
some Cambodian judges would likely do a good job minus real
or perceived political interference, and OSJI had hoped that

PHNOM PENH 00000103 003 OF 003


Scheffer could lay down a strong marker with Sok An that the
RGC should make clear to their judges that they have the
freedom to exercise their own opinions. In fact, just the
opposite seems to have happened, with Scheffer encouraging
Sok An and Sean Vissoth to play a strong role in the
decisionmaking of the Cambodian judges. Ryan also noted that
the RGC may have misread the meeting and interpreted
Scheffer's ideas and suggested compromises as having the
weight of the international judges behind him. Scheffer did
not meet with any of the international judges during his time
in Cambodia. The RGC may believe they have a tacit
understanding as to what the international judges will
accept; the international judges may not agree.

Comment
--------------


9. (C) OSJI is very concerned that they may have damaged
their role in ensuring an independent court by supporting
Scheffer's visit, which has encouraged government
intervention in the process and underscored for the Cambodian
judges (if there was any doubt) the importance of DPM Sok
An's office to the ECCC. The most important issue raised by
Sok An centered on the number of indictees that would
ultimately go to trial before the ECCC, which is not
surprising given the RGC awarded Sok An's niece (by marriage)
the key position of co-prosecutor. While international ECCC
staff agree that the categories of senior leadership and
those most responsible will limit the number of indictees
that go before the court, it is also clear that "list of
usual suspects" (i.e., those 5-8 people usually named in any
public forum or academic seminar focused on the Khmer Rouge
period) may be broadened during the course of the
investigative phase. In a country whose judiciary does
nothing with respect to any politically related case without
instructions, it is little surprise that the RGC is reticent
about a legal process that they may not be able to control.
It is unclear to us how preamble language referring to the
UN/RGC agreement, however, could be used to forestall an
indictment if the evidence supports it. End Comment.
MUSSOMELI