Identifier
Created
Classification
Origin
07PHNOMPENH77
2007-01-17 10:12:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Phnom Penh
Cable title:  

UPDATE ON THE ECCC; DAVID SCHEFFER COMING TO

Tags:  PHUM KJUS CB 
pdf how-to read a cable
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DE RUEHPF #0077/01 0171012
ZNR UUUUU ZZH
O 171012Z JAN 07
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7852
INFO RUEHRL/AMEMBASSY BERLIN IMMEDIATE 0143
RUEHOT/AMEMBASSY OTTAWA IMMEDIATE 0534
RUEHFR/AMEMBASSY PARIS IMMEDIATE 0554
RUEHKO/AMEMBASSY TOKYO IMMEDIATE 3122
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 2206
UNCLAS PHNOM PENH 000077 

SIPDIS

SENSITIVE
SIPDIS

STATE FOR EAP/MLS AND S/WCI; USUN FOR JIM DONOVAN

E.O. 12958: N/A
TAGS: PHUM KJUS CB
SUBJECT: UPDATE ON THE ECCC; DAVID SCHEFFER COMING TO
CAMBODIA

REF: USUN NY 16

UNCLAS PHNOM PENH 000077

SIPDIS

SENSITIVE
SIPDIS

STATE FOR EAP/MLS AND S/WCI; USUN FOR JIM DONOVAN

E.O. 12958: N/A
TAGS: PHUM KJUS CB
SUBJECT: UPDATE ON THE ECCC; DAVID SCHEFFER COMING TO
CAMBODIA

REF: USUN NY 16


1. (SBU) Summary. The Open Society's Justice Initiative
(OSJI) has requested and will fund former Ambassador David
Scheffer to visit Cambodia from January 19-21 to intervene
with senior RGC officials on the future of the Extraordinary
Chambers in the Courts of Cambodia (ECCC). Recent OSJI
discussions with members of the ECCC, both international and
Cambodian, indicate a significant difference on views as to
how long the review process for internal rules should take,
with the international judges committed to resolving most, if
not all, the rules and procedures by month's end so that a
March plenary of all the judges can be scheduled. The
Cambodians, according to OSJI sources, foresee this process
unfolding over the course of weeks and even months, with
additional rounds of discussion possible. ECCC staff are
concerned that the international jurists may pull out if the
two sides cannot resolve most differences in short order.
Total outstanding issues have narrowed to approximately a
dozen; there are five substantive points of contention that
affect the independence and legitimacy of the ECCC. OSJI
reported that the decision to bring David Scheffer came at
the behest of some ECCC staff; Scheffer has agreed to come.
End Summary.

ECCC's Review Committee Begins to Work
--------------


2. (SBU) On January 16, Pol/Econ Chief met with Heather
Ryan, OSJI's resident Khmer Rouge Tribunal monitor, and
Tracey Gurd, an OSJI legal officer visiting from New York.
Ryan related that recent discussions with ECCC staff
indicated concerns on the international side regarding the
review committee's prospects for success at the conclusion of
their current session, which began on January 16 and is
scheduled to conclude on January 26. ECCC sources informed
Ryan that their conversations with Cambodian counterparts
suggested that the Cambodian judges had met prior to the
beginning of the session, and had reportedly become even more
entrenched in their position going into the two weeks of
meetings. In addition, said Ryan, OSJI's own soundings among
the Cambodian judges indicated that the Cambodian side views
the two-week review committee session as just the beginning
of what could be a longer process of negotiation and
discussion of the rules -- one that could last weeks or even

months. The international judges, continued Ryan, want to
resolve the differences surrounding the rules during the
two-week session, or come close enough that both sides are
confident that a third plenary session in March will be
successful and the rules agreed upon at that time.


3. (SBU) Ryan was aware that the Group of Interested States
(GIS) had met in New York (reftel). She wondered if the
donors were pushing the Cambodian government and delivering
messages of concern. Pol/Econ Chief confirmed that key
missions were privately conveying strong messages to senior
RGC officials. Ryan noted that ECCC staff had asked OSJI to
invite David Scheffer, former US Ambassador-at-Large for War
Crimes, to visit Cambodia before the review committee's
session ended to discuss the ECCC's future with DPM Sok An
and ensure the two-week session does not end in failure.
Ryan explained that concerned ECCC staff considered Scheffer
as the best choice to intervene, as he is viewed (by the RGC)
as a friend of Cambodia for his work in restarting the
negotiations between the RGC and the UN over formation of the
Tribunal. OSJI/New York agreed to fund Scheffer's travel,
and the latter is scheduled to arrive on January 19 and
depart on January 21; Ryan noted that there is not yet
confirmation that Scheffer will be able to meet with DPM Sok
An.

Sticking Points
--------------


4. (SBU) Ryan mentioned that her discussions with the
ECCC's Marcel Lemonde (international co-investigating judge
and member of the drafting committee for the rules as well as
the review committee) indicate that there remain about a
dozen or so points of difference between the international
and Cambodian sides regarding rules and procedures. Roughly
half of those are potential deal breakers, noted Ryan, as
they impinge on the independence and integrity of the court.
The Cambodian side does not wish to address the role of the
defense counsel office in the rules; rather, they proposed
that all issues pertaining to the defense be decided by the

Cambodian Bar Association. Given the history of political
interference in the Bar, this is an impossible proposition,
noted Ryan. There remains disagreement over the
participation by international defense counsel, said Ryan,
which would call into question the fairness of the process if
Cambodian defendants only had Cambodian lawyers in the
courtroom with them (i.e., the equality of arms issue).
According to Ryan's sources at the ECCC, the Cambodian
proposals suggest that the Cambodian side is seeking control
over the entire process or a way to render it meaningless.
For instance, the Cambodian judges have proposed that if
there is disagreement over whether or not an investigation
will result in an indictment, that the person under
investigation may appeal to the Pre-Trial Chamber. If there
is no supermajority, the case will be dropped. (Note: Under
the RGC/UN Agreement, such cases would go forward to trial;
convictions, however, would require a supermajority. End
Note.) Ryan noted that under such a system, the RGC would
have total veto power over each indictment.


5. (SBU) The Cambodians had also requested that Cambodian
law relating to defamation also be applied to the court's
proceedings. They have reportedly changed their proposal to
perjury, said Ryan, but want perjury cases to be referred to
the Cambodian court system for a determination rather than be
examined by the ECCC. Ryan said that the Cambodian courts
would be unlikely arbiters of such cases in a politically
nonbiased way, and would serve as a deterrent for witness
testimony. The Cambodians continue to insist on in absentia
trials, despite the international judges argument that
absentia trials do not meet international standards and their
use has been rejected by other international tribunals. One
new area where the Cambodian judges have departed from the
draft rules concerns the participation by civil parties.
Although permitted under Cambodian law, the Cambodian judges
recently indicated that they do not favor victims coming
forward as civil parties. Ryan said that there is
speculation at the ECCC that this change of heart reflects
RGC fear of encouraging people to submit new evidence.
(Note: The Japanese Embassy was particularly unhappy over
this provision as well, although for financial and
administrative reasons. Their influence with the RGC may
also be a factor in the Cambodian decision to question the
rules surrounding victims and witnesses as civil parties.
End Note.)

Japan: Still Cautiously Optimistic
--------------


6. (SBU) Pol/Econ Chief conferred on January 17 with the
Japanese Embassy to see if they had heard similar rumblings.
In characteristic style, the Japanese Counselor handling the
KRT, Yoshi Kodama, said he was unaware of any problems,
although he did allow that the UN Administrative Office (and
we can only assume this is Sean Vissoth) is preparing a
compromise document on legal matters to provide to both sides
for consideration during the review committee meetings.
Kodama noted that the Japanese Ambassador would be meeting
with DPM Sok An next week and the progress of the review
committee would likely come up in the discussion.

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


7. (SBU) The first day's discussions on January 16
reportedly went well, according to one international judge,
who allowed that was likely because the two sides only
discussed the "easy stuff." At this stage, we can only wait
and see how the discussions between the international and
Cambodian judges develop, and whether there is room for
compromise. We plan to see David Scheffer and will provide a
readout of his discussions in Phnom Penh. End Comment.
MUSSOMELI