Identifier
Created
Classification
Origin
07PHNOMPENH826
2007-06-15 09:45:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Phnom Penh
Cable title:  

ECCC PASSES INTERNAL RULES

Tags:  PGOV KJUS PHUM CB 
pdf how-to read a cable
VZCZCXRO6300
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0826/01 1660945
ZNR UUUUU ZZH
O 150945Z JUN 07
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8579
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
UNCLAS SECTION 01 OF 04 PHNOM PENH 000826 

SIPDIS

SIPDIS
SENSITIVE

STATE FOR EAP/MLS, DRL AND S/WCI

E.O. 12958: N/A
TAGS: PGOV KJUS PHUM CB
SUBJECT: ECCC PASSES INTERNAL RULES

UNCLAS SECTION 01 OF 04 PHNOM PENH 000826

SIPDIS

SIPDIS
SENSITIVE

STATE FOR EAP/MLS, DRL AND S/WCI

E.O. 12958: N/A
TAGS: PGOV KJUS PHUM CB
SUBJECT: ECCC PASSES INTERNAL RULES


1. (SBU) Summary. On June 12, the judges of the
Extraordinary Chambers in the Courts of Cambodia (ECCC)
approved a set of internal rules governing the court's work.
While both the national and international sides of the court
hailed the passage of the rules as a major step forward in
the court's progress towards the trial phase, some
international judges and ECCC staff privately have noted that
there may be further obstacles ahead. The prosecution plans
to send recommendations forward soon to the investigating
judges, and court members believe that a trial could begin in
early 2008. The judges also have requested that two of their
members be placed in Phnom Penh throughout the proceedings.
Meanwhile, the UNDP audit remains a point of contention as
donors, UNDP, NGOs and the media continue to debate the
significance of the allegations of corruption at the court.
End Summary.

Internal Rules Passed
--------------


2. (U) At a joint press conference on June 13,
representatives of the ECCC announced that the judges and
co-prosecutors had passed the court's internal rules that
will govern the court's judicial operations over the coming
years. While copies of the rules are not yet publicly
available, the announcement is considered a major step
forward in moving the process forward. ECCC staff who
attended some of the deliberations noted that it was clear
the Cambodian side was operating under different set of
instructions than had been the case during the November 2006
plenary -- the last time all the judges and co-prosecutors
met to discuss the internal rules. Another positive step
were noticeable points of disagreement among the Cambodian
judges -- not on key issues, where all the Cambodian judges
held firm -- but on less contentious matters, according to
ECCC sources.


3. (SBU) One international judge said that the second
plenary should have been finished in two days time. Too much
time was spent quibbling over translation issues and
non-substantive points. The two reserve international
judges, Claudia Fenz and Martin Karopkin, were not eligible
to vote so used some of their time to visit a Phnom Penh
court as well as the Supreme Court, and view the proceedings
and conduct of court officials. Karopkin told us that after

the assurances the international judges had received from
their Cambodian counterparts regarding the judiciary's strong
commitment to rule of law and human rights in Cambodia, their
brief visits indicated otherwise. They found the reality of
Cambodia's poor judicial system a challenge to reform and
Karopkin said he understands why Cambodian civil society is
skeptical that the ECCC will inspire widespread change in the
country's broken judiciary. The U.S. judge nevertheless
allowed that their brief snapshot was just that -- a snapshot.


4. (SBU) The ECCC announced that the rules would be
available within 10 days, but Co-Investigating Judge Marcel
Lemonde indicated that he would try to ensure they were
posted earlier (they were not available on the court's
website as of June 15). All indications are that the
agreed-upon rules do not depart significantly from the
earlier version discussed during the March meeting of the
expanded drafting committee. Defense Support Section head
Rupert Skilbeck issued a separate press release on June 13,
praising the passage of the rules but indicating that
"certain rules may not fully comply with international
standards of fair trial." Reporters seeking clarification
from the Defense unit have not received a fuller explanation;
one of the ECCC judges told us that Skilbeck was likely
laying the groundwork for possible defense arguments and
legal objections during the pre-trial stage. Those ECCC
members contacted were satisfied that the rules would allow
for fair trials; otherwise, they would not have agreed to
them. However, some people allowed that the judges could not
foresee every potential abuse or loophole, but that a good
faith effort to not waver on principle was made.


5. (SBU) Two additional developments took place during the
plenary. One was the preview and tour for the judges of the
room designated for the pre-trial chamber as well as further
discussion on the configuration of the trial courtroom. The
pre-trial chamber still requires major work, according to
some judges, who were hoping that the chamber would be near
completion by the time of the plenary. With the
co-prosecutors prepared to begin moving case files to the
co-investigating judges, it is anticipated that the pre-trial
chamber will begin its work soon. The judges are reportedly
unhappy that the main trial chamber (an auditorium) will
retain its stage and the judges will be seated there. The
judges had earlier objected to being placed on the stage and

PHNOM PENH 00000826 002 OF 004


had wanted it removed. It also remains unclear who will sit
where, and whether the defense counsel and the defendant(s)
will be seated below the prosecutors and judges. For
appearances sake, the international judges had wanted the
prosecutors and defense counsel to receive equal treatment.
This remains a point of discussion, and one that some
international judges fear they may lose. Similarly, there
are questions over the robes to be worn by the judges, which
reportedly are the same as those of the Cambodian Supreme
Court judges. One judge commented that while regal in
appearance, he is worried about the symbolism and how that
might be interpreted by the Cambodian public. The
prosecutors are also to wear the same robes as the judges,
which also is worrisome to those international judges
concerned about the symbolism -- they had wanted the judges,
prosecutors and defense to all be considered separate
entities. All sources agree that the dress and the
stage/configuration of the court issues are not substantive
in nature, but there are concerns that some of these
decisions could have a negative impact on the Cambodian
public.


6. (SBU) A second issue relates to the notion of having
resident judges on the international and national side in
Phnom Penh. During the last year, many of the international
judges have been unhappy with what they believe was a lack of
information from the ECCC administration. To improve
information flow during the coming months, the judges
discussed and voted to propose to the ECCC administration
that one international judge (Japanese judge Motoo Noguchi)
and one Cambodian judge (Kong Srim) begin full-time work at
the ECCC assisting on judicial matters (although it remains
unclear how much authority they would have to speak on behalf
of the other judges). There is nothing in the current ECCC
budget that would cover these costs so it remains a proposal
to the administration.

Donor Briefing and UNDP Audit
--------------


7. (SBU) UNDP representative Douglas Gardner briefed
interested donors June 13 on the UN's plans to handle
continued press and NGO pressure to release an internal audit
related to the ECCC. Gardner said the audit had not found
evidence to conclusively support allegations that Cambodian
staff of the tribunal were forced to pay kickbacks. However,
it had revealed poor human resource practises which created
the potential, or the perception, of wrongdoing. Problems
included: staff hired without meeting job requirements,
inadequate documentation of applicant pools or hiring
criteria, lack of performance evaluations, and ineffective
monitoring of salary scales. In short, flaws at the
entry-point meant there was neither sufficient transparency
nor the right people hired. Therefore, it was not surprising
if there were weaknesses, for example in court management.



8. (SBU) Donors (most notably Canada and Australia)
strongly objected to UNDP's plan to release "unilaterally" a
summary of the audit immediately after the successful plenary
session. The Canadian Ambassador said some of the (Malaysian
contract) auditors' recommendations, e.g., firing of ECCC
staff, were "patently ludicrous" and cast into doubt the
seriousness of the audit. She also said that publicly
releasing information on what had been billed as a
confidential audit would cause the Cambodian side to lose

SIPDIS
confidence in the UN's intentions -- and that releasing
something immediately after the hard work of getting to a
successful plenary was questionable timing. Other donors
generally agreed, although the German, UK, and EC
representatives seemed less sanguine that UNDP could continue
to avoid NGO and press pressure to answer additional
questions about the audit. Donors urged UNDP to work
constructively with the Cambodian side to seek agreement on
the remedial steps. Then, a summary of the audit could be
presented in the much-more positive context of a joint plan
to address observed problems. The DCM noted the importance
of the ECCC meeting international standards and said human
resource problems needed to be rectified, but supported a
"joint" approach, if possible.


9. (SBU) Gardner described three main remedial steps, and
expressed the opinion that at least some on the Cambodian
side supported these steps. He said UNDP's base position was
clear: taking a "business as usual" approach was not
possible, remedial steps were necessary, and UNDP would need
to be more interventionist in the future. Remedial steps
were:

-- Requiring that all contract extensions be reviewed, with

PHNOM PENH 00000826 003.2 OF 004


certification that the employee's CV matched the requirements
of the job description and that the employee was performing
the job satisfactorily. As some 131 staff were on short-term
contracts, with most due to expire in June-Sept, this would
allow a gradual review of staff and weeding out of those
unqualified.

--- Requiring appropriate hiring procedures for new recruits:
including evidence that positions were widely advertised,
logging all applications, establishing criteria for
applicants and documenting the process of short-listing,
interviewing, and selection based on merit.

-- Changing the method for calculating salaries of
professional-level Cambodian staff. This would affect 35% of
the staff, who had been selected into positions where it had
been agreed in the RGC-UN MOU that they would be paid 50% of
the wage of international staff. Currently, these wages were
set against gross (i.e., pre-tax) international levels. But,
as the Cambodians were not being taxed, as per a government
decision, these wages should be set against the net internal
level, which would bring them down somewhere between 12% and
20%.


10. (SBU) Gardner also shared a draft of the same statement
with the ECCC judges and staff earlier the same day. One
international legal advisor, who had read the audit report
and who is familiar with the both the deficiencies in the
hiring practices as well as the allegations of corruption,
objected to any inclusion of the corruption reference in the
draft UNDP statement -- which noted that the audit findings
did not produce evidence of corruption. He reportedly argued
that the terms of reference for the auditors did not
specifically focus on corruption; therefore, the auditors did
not interview anyone who had asked for a meeting to discuss
this issue, and some people who had requested to meet with
the auditing team had been refused interviews. Rather, the
team focused exclusively on the hiring problems outlined by
an earlier auditing team. The advisor noted that it would be
misleading to characterize the audit report as having put to
rest any suspicion regarding kickbacks or other corrupt
practices at the court, when the team had not investigated
those allegations. (Note: The issue of corruption remains a
contentious point among some ECCC staff and NGOs, with the
media continuing to raise questions about the court's
handling of this matter. The international judges are aware
of the controversy but do not believe it is within their
purview to weigh in. End Note.)


First Case to Move Forward?
--------------


11. (SBU) Most observers speculate that the first case file
to move to the co-investigating judges will be that of the
head of Tuol Sleng prison -- Khang Khek Ieu (aka Duch),who
has been under temporary detention for seven years. The
Japanese Embassy has told us that they anticipate Duch will
be the first case as it is one with the greatest amount of
documentation, witnesses, the suspect has already confessed,
and it would be easy to bring it to trial. They also believe
that by having an "early success," trying Duch would
immediately raise the international profile of the ECCC and
help in the GOJ's efforts to lobby other donors for
additional funds for the court.

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


12. (SBU) We have heard very positive comments regarding
Co-Prosecutor Robert Petit during the last week and a half,
and one judge went so far as to say that if the ECCC succeeds
in its overall objectives, it will be due in no small part to
Petit. The Canadian co-prosecutor has a strategy and
prosecution plan that he has quietly but adamantly maintained
he will not allow to be influenced by Cambodian politics.
Petit relayed this to the Ambassador early on when the
co-prosecutor began his work; it was reinforced again among
the international judges during the plenary when discussions
about possible RGC interference arose. While everyone is
pleased that the internal rules debate is behind them (some
judges worry that translation differences between French,
English, and Khmer may return to haunt the court),no one is
predicting smooth sailing ahead. The next challenge will be
the reaction, if any, to the initial case(s) forwarded to the
co-investigating judges. Nevertheless, our sources indicate
that once the trial phase begins, there is every expectation
that the court will take on a life of its own and focus more
on the law and its application as opposed to some of the
petty bickering that has characterized this most recent

PHNOM PENH 00000826 004.2 OF 004


meeting of judges as well as last year's failed plenary.
MUSSOMELI