KHMER ROUGE TRIBUNAL: UN FORMALIZES OWN

C O N F I D E N T I A L SECTION 01 OF 03 PHNOM PENH 000243

NOFORN
SIPDIS

STATE FOR EAP/MLS, P, D, IO, DRL, S/WCI
USUN FOR SIMONOFF

E.O. 12958: DECL: 04/09/2019
TAGS: PREL PGOV KJUS PHUM KTIA CB
SUBJECT: KHMER ROUGE TRIBUNAL: UN FORMALIZES OWN
ANTI-CORRUPTION MECHANISM AS SOK AN MULLS OVER UN PROPOSAL

REF: A. PHNOM PENH 213

B. PHNOM PENH 168

Classified By: AMBASSADOR CAROL A. RODLEY FOR REASONS 1.4 (B, D)


1. (C) SUMMARY: Deputy Prime Minister and Minister of the
Council of Ministers Sok An continues to deliberate over a
joint anti-corruption mechanism for the Khmer Rouge Tribunal
(KRT) proposed by UN Assistant Secretary General Peter
Taksoe-Jensen of the UN Office of Legal Affairs (UN/OLA),
after Taksoe-Jensen departed Phnom Penh April 8 saying that
he no longer needed to negotiate the issue. After three days
of hard talks, the single remaining difference -- deemed
small by the Cambodians -- revolves around the complaint
reporting mechanism. In a formal statement upon his
departure, Taksoe-Jensen noted that KRT staff should be free
to file complaints with either of two ethics monitors and be
assured confidentiality. Sok An has insisted that a February
23 "Joint Statement" calls for parallel UN and Cambodian
reporting mechanisms and continues to try to keep that
proposal alive. The Ambassador called on Sok An on April 8
to urge him to take the deal offered by Taksoe-Jensen. In
the meantime, the April 8 exit statement of Taksoe-Jensen
outlines an interim UN-only anti-corruption mechanism with a
UN-appointed Ethics Monitor -- a mid-ranking officer at the
KRT. The UN-Cambodian Joint Sessions will continue to meet,
but donors will have to urge more effort if we want to see
the gap closed. END SUMMARY.

Taksoe-Jensen Outlines Three Sticking Points
--------------


2. (C) In a meeting with core donors April 7, Taksoe-Jensen
reviewed three items remaining in a four-page document on an
anti-corruption mechanism on which agreement had almost been
reached. (Post is transmitting a copy of the Taksoe-Jense
proposal to the Desk, along with a Cambodian proposal, both
to be kept close hold.) Earlier, in an April 5 meeting with
the donors, Taksoe-Jensen had acknowledged that he would be
using the February 23 "Joint Statement" as a floor from which
to negotiate (Ref B) and indicated that he had already agreed
with Sok An that a super-majority of the Joint Sessions would
be required to recommend action on a complaint. However,
there was no clear method to handle complaints when the Joint
Sessions was in "deadlock". Taksoe-Jensen said that he
accepted a proposal by Sok An to call in the "heavy-weights"
(senior Cambodian and UN officials) in such cases. A second
point was the handling of cases for which the complaining
party refused to reveal their identity. In those instances,
the Ethics Monitor would not make recommendations for action
to the Joint Sessions, according to Taksoe-Jensen's proposal.
UN KRT Deputy Director Knut Rosandhaug indicated that the
main purpose of receiving such complaints was to have an open
flow of information -- this would provide a sufficient
deterrent effect against anyone contemplating unacceptable
behavior.


3. (C) The third and most crucial point for Taksoe-Jensen
was the availability of multiple channels to file complaints.
Sok An said repeatedly that Cambodians must file complaints
only with the Cambodian Ethics Monitor and UN staff would go
to the UN in a parallel system, he noted. Taksoe-Jensen
insisted throughout the negotiation that any KRT staff member
must have the freedom to choose to file a complaint with
either the Cambodian or the UN Ethics Monitor. For
Taksoe-Jensen, the issue was the availability of an
independent third party to receive grievances, which was part
of any complaints system in developed civil service systems,
he explained to donors. Any complainant would also be able
to request that their identity be protected in a strict
system of confidentiality (to protect against retaliation).
Sok An gave various interpretations to the Cambodian
insistence on reporting lines going to a Cambodian Ethics
Monitor, including that any other method would have a
negative impact on the rest of the Cambodian government
bureaucracy outside the tribunal and that a system allowing
for outside reporting would only create more mistrust at the
tribunal.


4. (C) This third sticking point carried forward into
another negotiating session on the evening of April 7, but no
agreement was reached. Sok An told Taksoe-Jensen he was
still considering the UN's tabled proposal. Taksoe-Jensen
told the Ambassador that he decided to stay another day
because he believed that Sok An might move. In the meantime,
late on April 7, the French Ambassador called on Sok An to
review the bidding and to note that the two sides were close.

PHNOM PENH 00000243 002 OF 003



Sok An Still Wary of UN Proposal
--------------


5. (C) On April 8, the Ambassador called on a relaxed but
tired-looking Sok An to review his successes in the
negotiation with Taksoe-Jensen and to encourage Sok An to
agree to the tabled UN proposal. Sok An stated that the
Cambodian proposal was better because it provided either an
anonymous mechanism to file a complaint or a confidential
mechanism (in parallel). KRT staff had the freedom to choose
under his proposal, he noted. (NOTE: However, he could not
explain how a person could have their identity protected.
End Note.) On the other hand, the UN proposal would only
create deeper mistrust between the UN and Cambodian staff
while Sok An's proposal would help build trust at the court.
At Taksoe-Jensen's request, the Ambassador outlined a
proposed new feature to the UN proposal: the UN Ethics
Monitor would be selected from a UN-provided list of nominees
but the Cambodian government would select the monitor.
Because they would be able to pick the UN Ethics Monitor, the
Cambodian government could trust the system and be confident
that the complaint would be shared, as noted in the
agreement. A Cambodian-chosen monitor would also ensure that
no frivolous complaints would be acted on, said the
Ambassador. In an 80-minute discussion, Sok An kept circling
back to the principles incorporated into his own proposal:
confidentiality of the complaint within the Joint Sessions
(NOTE: but not the identity of the whistle-blower. END
NOTE.),anonymity (through a shared drop-box or similar
system),and the freedom to choose between those two
mechanisms. Sok An could not explain how a whistle-blower
could be afforded protection when filing a complaint in good
faith, if the complaint only went from Cambodian national
staff to the Cambodian Ethics Monitor.


6. (C) Taksoe-Jensen had his last meeting with Sok An the
afternoon of April 8 during which they reviewed their
respective draft proposals. (NOTE: The Cambodian proposal
dated April 8 and which we sent to the Desk appears to be a
later version, different from the one delivered to the UN
team. Post cannot determine if this newer proposal was
officially conveyed to the UN. END NOTE.). However,
according to UN/OLA's officer at the KRT, the Cambodian
proposal continued to have the chief defect that there was no
mechanism whereby any staff member could choose between two
ethics monitors to make a complaint. The proposed Cambodian
parallel complaints mechanism also affords no confidentiality
to the individual making the complaint. An anonymous
drop-box is the only other system offered. At their last
meeting, Sok An and Taksoe-Jensen "explained their different
mechanisms, but did not agree," according to the UN legal
officer present.

RGC Public Stance: Still Negotiating
--------------


7. (C) Taksoe-Jensen told the donors that he would leave a
draft anti-corruption mechanism with Sok An and that it would
be up to Sok An to agree to his "last best offer". However
within a day of the UN's concluding the negotiation phase,
the Royal Government of Cambodia (RGC) has stated that it
"never closed the door for talks," according to Phay Siphan,
Secretary of State and spokesperson for the Council of
Ministers. Phay Siphan told the Phnom Penh Post that "It is
too early to resume talks because each side has drafts in
hand to consider."


8. (C) On the afternoon of April 10, on instructions of Sok
An, ECCC Acting Director Tony Kranh emailed to all the major
donors "the Cambodian proposal." It is not clear if or when
this proposal will be conveyed officially to the UN, as it
reportedly differs in some respects from the proposal Sok An
and Taksoe-Jensen discussed.


9. (C) Phay Siphan told the local press that at least one
KRT donor country's ambassador has urged Taksoe-Jensen to
sign the proposal offered by Sok An. (COMMENT: We believe
that may be the Japanese, whose DCM told Taksoe-Jensen the
Cambodians would never agree to complaints by national staff
being filed to the UN. END COMMENT.) Japanese Ambassador
Katsuhiro Shinohara told the Ambassador April 10 that he
believed the RGC proposal merited further discussion and that
Tokyo would be instructing their UN mission to deliver such a
message. The Ambassador relayed that she strongly supported
the Taksoe-Jensen proposal which she believed met many of the
Cambodian requirements, and that she believed Taksoe-Jensen

PHNOM PENH 00000243 003 OF 003


had negotiated in good faith.


10. (C/NF) In the meantime, Taksoe-Jensen stated that the UN
will have its own UNAKRT Ethics Monitor who will receive
complaints at the KRT. We understand that Senior Program
Management Officer Rajeev Kumra has been named to fill that
position. He has been tasked to forward all complaints
received to the UN Headquarters for review and action, as
appropriate. The Joint Sessions is also supposed to continue
to meet on a regular basis, but we understand that no date
has been set for a next meeting and that, on the Cambodian
side, Chief of Public Affairs Helen Jarvis will be away for
ten days.

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


11. (C) Taksoe-Jensen has been forthright in stating that
there are certain core UN ethics principles that must be
honored in a KRT anti-corruption mechanism. We agree that
the UN should not go below a certain threshold and that the
current Cambodian proposal does not rise to meet that limit.
The Cambodian proposal is however worthy of further
consideration, should it incorporate whistleblower
protections and the concept of reporting grievances to third
parties. It may fall to the donors to push the Cambodians to
take that next step. In the meantime, the judicial process
at the Khmer Rouge Tribunal continues to go ahead smoothly as
Cambodian public hears revelations of the sobering tortures
exacted by Cambodians on Cambodians under interrogation
during the Khmer Rouge era.
RODLEY