KHMER ROUGE TRIBUNAL: ROCKY ROAD FOR NEW CASES,

C O N F I D E N T I A L PHNOM PENH 000947 SIPDIS STATE FOR EAP, P, D, DRL, IO, S/WCI E.O. 12958: DECL: 11/26/2018 TAGS: PREL KJUS PHUM CB SUBJECT: KHMER ROUGE TRIBUNAL: ROCKY ROAD FOR NEW CASES, STEADY PATH FOR TRIAL OF FIVE KR LEADERS Classified By: AMBASSADOR CAROL RODLEY FOR REASONS 1.4 (B, D) ¶1. (C) SUMMARY: The next weeks will see major developments in the work of the Extraordinary Chambers in the Courts of Cambodia (ECCC),as the Khmer Rouge Tribunal is called. In a confidential development, the Cambodian co-prosecutor reportedly disagrees with the submission of additional case files concerning six more individuals alleged to have committed crimes against humanity. Not all of the six may clearly meet a single definition of "those most responsible" for war crimes as called for in the court's mandate, but all are believed to be notorious for overseeing systems that led to the deaths of tens of thousands of Cambodians during the Pol Pot era. The process of adding more accused can go on a number of tracks. The set-back posed by the co-prosecutor's non-consent is likely reparable. Court sources say that, no matter what the outcome, most of the six are likely to face an initial prosecution and, for any who do not face a full trial, there will be a public reckoning. Separately, the Pre-Trial Chamber (PTC) is set to rule on December 5 on prosecuting Tuol Sleng (S-21) torture prison head Kaing Guek Eav for crimes against humanity based on a theory of "joint criminal enterprise," giving prosecutors more room to make their case against Duch and, significantly, build their case against the other detained KR leaders. END SUMMARY. Rocky Road for New Prosecutions -------------- ¶2. (C) According to sources familiar with the ECCC co-prosecutors office, UNAKRT Prosecutor Robert Petit has confidential case files on six individuals, five of whom are alleged to each be responsible for the deaths of more than 100,000 Cambodians. Petit has been pressing Cambodian co-prosecutor Chea Leang these past few weeks to support an initial submission to the co-investigating judges regarding all six cases. After two weeks of negotiations, sources close to Chea Leang's office state that she answered Petit definitively on November 27 that she could not support any of the cases and that Petit should now feel free to submit his case the Pre-Trial Chamber (PTC). Whether Petit will submit all six cases to the PTC is still an unknown, as ECCC UN sources report one or two cases appear to be of a different character, perhaps with less supporting evidence. ¶3. (C) The ECCC rules state that the PTC can reject such a case submission only if a super-majority of four judges out of seven agree. Most court observers believe the PTC will agree to accept all the cases, at which point the files will go to co-investigating judges Marcel LeMonde and You Bunleng. If there is disagreement at this next stage, the case files would go back to the PTC where a second positive vote is expected by many court watchers. Solution of the initial disagreement between prosecutors will add three months to the court's timetable. A similar dispute about adding new cases at the co-investigating judges' level would add another three to six months to the proceedings. However, by Fall 2009, the court will be in a position to bring forward new accused, according to ECCC and court watcher sources. ¶4. (C) All of the proceedings on new cases are supposed to be conducted in camera and are confidential. The Pre-Trial Chamber may elect not to announce either its consideration of or its judgment on new case files, if it so chooses. However, some in UNAKRT are pushing to give some publicity to the new case file submissions and, if Prosecutor Petit makes his filing to the pre-Trial Chamber early next week, a press release may be issued soon thereafter. Such an announcement, even if vaguely worded, would highlight that co-prosecutor Chea Leang disagreed with the new case submissions. ¶5. (C) Some in the NGO community may choose to highlight co-investigating prosecutor Chea Leang's refusal to support the new cases as evidence of outside political influence. Open Society Justice Institute's (OSJI) Heather Ryan told Pol/Ec Chief November 28 that, if there is an ECCC press release on this topic, the OSJI would then place an op-ed opinion piece alleging that there was indeed outside political influence brought to bear and that the Cambodian co-prosecutor was explicitly told not to agree to the new cases so as to protect Cambodia's peace and stability. Ryan said that OSJI was still considering the timing of this move, which would be based in part on whether there was an ECCC press release. Smooth Going for the Current Five Cases -------------- ¶6. (C) The Pre-Trial Chamber is set to rule December 5 on prosecuting Tuol Sleng (S-21) torture prison head Kaing Guek Eav for crimes against humanity based on a theory of "joint criminal enterprise." Application of this theory to Duch's trial, to start in February 2009, will aid prosecution of the four other Khmer Rouge leaders detained on a raft of charges, including genocide. The ruling will likely kick the can down the road on substance, according to sources, but give prosecutors room to make their fullest case. The PTC is reportedly conscious of its jurisdictional boundaries and does not want to pre-empt the trial chamber's rulings on such a fundamentally important topic as "joint criminal enterprise", a controversial theory of law, but one which would tie together the four Khmer Rouge leaders' joint culpability for up to two million deaths during the 1975-1979 Pol Pot era. RODLEY