JAPAN'S VIEWS ON WAR CRIME ISSUES

C O N F I D E N T I A L SECTION 01 OF 03 TOKYO 000153

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E.O. 12958: DECL: 01/12/2017
TAGS: PGOV KAWC KCRMJA KJUS KLIG PGOV PHUM PREL AS ID
CB, JA
SUBJECT: JAPAN'S VIEWS ON WAR CRIME ISSUES


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Classified By: Charge d'Affairs Joe Donovan for reasons 1.4 (b) and (d)
.


1. (C) Summary: During a series of meetings on December
21-22, 2006, Senior Advisor to the Office of War Crime Issues
Milbert Shin met with academics, Japan Institute of
International Affairs (JIIA) think tank scholars, and
government officials to discuss progress in the establishment
of the Khmer Rouge Tribunal (KRT) (also referred to as the
Extraordinary Chambers in the Courts of Cambodia (ECCC)),
potential United States Government assistance to the KRT,
nation-building in East Timor, and the International Criminal
Tribunal for the former Yugoslavia (ICTY). Building
democratic institutions, establishing rule of law, and
maintaining stability need to be accomplished before Cambodia
and East Timor can begin the process of accounting for past
human rights violations, said Former United Nations Special
Representative of the Secretary-General and Hosei University
Professor Sukehiro Hasegawa, former Ambassador of Japan to
East Timor Ambassador Hideki Asahi, and Ministry of Foreign
Affairs officials. Turning to the ICTY, completion of all
cases by the end of 2010 is a major priority for Japan,
explained MOFA UN Policy Division Director Shigeki Takizaki.
If the ICTY fails to complete its mission by the end of 2010,
funding for further proceedings should be on a voluntary
basis by concerned countries. Japan is willing to discuss
closer to the 2010 deadline specific procedures and
mechanisms for any unexpected contingencies and to address
residual jurisdiction after the ICTY has completed
adjudicating cases, added Takizaki.

Nation Building Before Tribunals
--------------


2. (C) MOFA Director of the Second Southeast Asia Division,
Akio Isomata, emphasized the need to build democratic
institutions before East Timor begins to think about
accounting for past human rights violations. Japan is
closely following investigations conducted by the recent UN
Commissions of Inquiry, and Isomata acknowledged that such
investigations are important to resolve underlying problems
in essential government institutions; however, he cautioned
against the international community being overly assertive.
The UN Commission of Inquiry Report on the April-June 2006
violence had intentionally not identified individuals
responsible for serious human rights violations in order to
help speed national reconciliation, Isomata asserted.
Indonesia will object if East Timor considers legal
proceedings, he said.


3. (C) Accountability for crimes against humanity is very
important. However, in the near term, Japan is placing more
emphasis on helping build democratic institutions and
establishing the rule of law in East Timor's "fragile"
environment, Isomata explained. Japan has extended
approximately USD 200 million in assistance to East Timor
since 1999 and will dispatch two civilian police officers to
serve as advisors to the UN on the ground, Isomata stated.
He was unclear, however, on whether the two advisors would
have executive police powers. Isomata agreed with S/A Shin's
suggestion that training should focus on the importance of
command and control, including measures for proper weapons
registration and tracking. S/A Shin praised the importance
of Japan's contributions, and agreed that any future inquiry
into past crimes must be conducted in an integrated fashion,
addressing all aspects of the criminal justice system
including a functional police force, the prosecution and
defense bar and the judiciary.


Hope for Khmer Rouge Tribunal
--------------


4. (C) The United States should use the United Nations to
promote a war crimes tribunal in Cambodia and work to avoid
the appearance that any single country, such as the United
States or Australia, is demanding the trial, emphasized
former UN Special Representative of the Secretary-General and
Hosei University Professor Sukehiro Hasegawa. Japan's
historical past and lack of human resources and experiences
limits its ability to influence Cambodian leaders to move

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forward on accounting for crimes against humanity, Hasegawa
said. Japan Institute for International Affairs (JIIA)
Director-General Seki Tomoda said ASEAN should be the most
important actor in pressuring Cambodia to hold a war crimes
tribunal. He added that he was not optimistic ASEAN could
influence Cambodia given ASEAN's policy of not interfering in
other countries' domestic affairs.


5. (C) MOFA Principle Deputy Director of the First Southeast
Asia Division, Atsushi Kuwabara, and Deputy Director, Masaki
Kawaguchi, downplayed the impact of political interference
and stressed the overall positive gains made by the
Extraordinary Chambers in the Courts of Cambodia (ECCC).
Kuwabara recognized that there have been attempts to
influence the process, but did not believe they have risen to
a level that would render the proceedings a sham. He said
the involvement of international judges and the UN in the
hybrid tribunal will make it possible to hold trials at an
internationally acceptable level. Hasegawa believes that
Cambodian judges should be included but the majority should
be international judges to ensure the court can withstand
local government pressure.


6. (C) Japan has sent strong messages urging Cambodian
authorities (including Minister Sok An) to refrain from
interfering with the work of the tribunal, Kuwabara noted.
Citing the importance of the ECCC to the development of
international standards for the Cambodian legal system,
Kuwabara and Kawaguchi expressed hope that the United States
will take a more active role. S/A Shin agreed that the
tribunal can serve the dual purposes of bringing former Khmer
Rouge leaders to justice and instilling the confidence of
ordinary Cambodians in their legal system, but only if the
judges know they can do their jobs without political
interference or the fear of political interference.


7. (C) Kuwabara shared S/A Shin's concerns that the Second
Plenary had failed to agree on internal rules to govern the
KRT in the November plenary, but faulted the complexities of
trying to adopt more than 110 articles in just four or five
days. He was encouraged by the overall good cooperation
between international judges, Cambodian judges, and the UN,
and pointed to disagreements even within the two groups of
judges to refute claims that the Cambodian side was trying to
slow the process. Kawaguchi cited recent problems with
training to demonstrate the broader point that both the
Cambodian side and the international side needed to make
changes in the way they do business. While it was not good
for the Cambodian Bar Association (CBA) to have opposed
training by the International Bar Association, he said, much
of the blame should rest on the international side for not
informing the CBA in an appropriate manner. S/A Shin assured
Kuwabara that international members of the KRT are now aware
that they need to do more to smooth out problems. The
resolution of internal problems would make the role of
political influence more readily discernible, if the tribunal
is nevertheless still unable to move forward, he added. S/A
Shin told Kuwabara that the need to get past the internal
rules has kept international friends of the court from
addressing other issues important to the successful conduct
of cases, such as technical issues related to investigations,
case strategy, document databases, trial software and
staffing.


International Criminal Tribunal for Former Yugoslavia
-------------- --------------


8. (C) S/A Shin met with UN Policy Division Director
Shigeki Takizaki and Akihito Teruuchi at the Ministry of
Foreign Affairs December 22 to discuss the future of the
International Criminal Tribunal for the former Yugoslavia
(ICTY). Shin told Takizaki that in addition to wanting the
court to have completed all trials by 2008 and appeals by
2010, the United States is seeking an exchange of views on
considering procedures and funding for residual jurisdiction
matters that remain after 2010, such as post-appeal review
proceedings. There is a general feeling among staff of the
ICTY that some residual jurisdiction will remain after the
tribunal is completed, said Shin. Also, if the dissolution
of the court does not include a structure to handle

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carry-over cases, some indictees like Radovan Karadzic and
Ratko Mladic might escape justice due to lengthy delays in
bringing them to trial, which would in effect permit such
fugitives to "win the battle of time," Shin warned Takizaki.



9. (C) Careful consideration of procedures after the ICTY
has concluded adjudicating cases is essential to preserving
the legacy of the Tribunal, Shin said to Takizaki. Shin
raised several possibilities for post-2010 proceedings to
Takizaki, including that the ICTY could remain as an
appellate chamber only, or judges could participate without
being in residence. Prosecution and defence counsel could
return to their jurisdictions, only appearing in court to
address post-appeal matters as they arise, further reducing
costs. Teruuchi suggested that the ICTY could pass
jurisdiction on to select local courts that were deemed to
meet international standards.


10. (C) Completion of all cases by 2010 is Japan's major
priority for the ICTY, stated Takizaki. The government of
Japan had never considered the matter of residual
jurisdiction before Shin mentioned it, explained Takizaki,
thanking Shin for bringing the issue to Japan's attention.
With no pre-existing policy on this issue, the Japanese
government welcomes consultation with the United States.
However, it is far too early to begin serious deliberations
on post-completion structures, and involved parties should
focus their efforts on driving the ICTY to completion,
Takizaki stated. The current position of the Japanese
government is that if the ICTY fails to complete its mission
by 2010, funding for any additional proceedings should be on
a voluntary basis by concerned countries. However, Japan
will be open to discussing the trials of late-arriving
fugitives and the matter of residual jurisdiction closer to
the 2010 deadline, but not any sooner, added Takizaki.
DONOVAN