KHMER ROUGE TRIBUNAL: SOK AN ENTHUSIASTIC ABOUT

C O N F I D E N T I A L SECTION 01 OF 04 PHNOM PENH 000343

SIPDIS

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

E.O. 12958: DECL: 05/28/2019
TAGS: PREL PGOV KJUS EAID PHUM CB
SUBJECT: KHMER ROUGE TRIBUNAL: SOK AN ENTHUSIASTIC ABOUT
PROPOSED ANTI-CORRUPTION MECHANISM

REF: A. PHNOM PENH 333

B. PHNOM PENH 316

C. PHNOM PENH 264

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


1. (C) SUMMARY: In a palpably relaxed meeting May 22 with
Ambassador at Large for War Crimes Issues Clint Williamson,
Deputy Prime Minister Sok An reiterated his strong support
for a proposed new anti-corruption mechanism at the Khmer
Rouge Tribunal (Ref A). Within minutes of reviewing desired
qualifications for the job of a proposed anti-corruption
"Counselor," Sok An reeled off the names of three Cambodian
candidates. Referring to rules by which international judges
are selected for participation in the Extraordinary Chambers
in the Courts of Cambodia (ECCC),Sok An suggested that the
selection of a mutually agreeable nominee could be based on
Cambodia providing a list of candidates and the UN selecting
one. He was silent on the suggestion that the UN propose any
candidates. Ambassador Williamson reviewed the outlines of
the proposal again, noted that he would consult with UN/OLA
Assistant Secretary General Peter Taksoe-Jensen, and would
convey any immediate responses through Ambassador Rodley.


2. (C) Ambassador Williamson expressed hope that
Taksoe-Jensen could visit Phnom Penh in early June to reach
agreement on the anti-corruption Counselor mechanism, if not
on a name. Ambassador Rodley emphasized the sense of Phnom
Penh-based donors that independence would be a vital quality
of the Counselor and that the selection would need to be
based on multiple candidates. Eager to settle the mechanism
and process for selecting the Counselor, Sok An was also
attentive to the details of the Counselor's anti-corruption
role, acknowledging it was a function -- not a position --
that must be "neutral, independent, and impartial." Sok An
stated the Royal Government of Cambodia (RGC) had already
given extensive reflection to this new anti-corruption
mechanism. At a dinner after the Sok An meeting, Ambassador
Williamson briefed six Phnom Penh Chiefs of Mission on the
outcome and outlined next steps. All eight envoys at the
dinner agreed that the list of Cambodian candidates who were
independent and seen to have integrity was not long and that
some among the donors might suggest candidates directly to
Sok An. END SUMMARY.

Happy With the Proposal, Consulted with Donors Already
-------------- --------------


3. (C) Sok An energetically launched into his second meeting
with Ambassador Williamson, saying that he was happy with the
proposed anti-corruption Counselor outlined in their May 20
exchange (Ref A). He also outlined a "very good discussion"
he had on the afternoon of May 21 with the seven Phnom Penh
donors (Japan, France, the U.K., Australia, U.S., EU and
Germany). "I told the donors that we had a good meeting and
that I essentially agree with the idea (of an independent
Counselor)," he said. Already, the RGC was continuing
consultations on the Counselor, for which it had developed
desired qualifications. Explaining a list of criteria, Sok
An said the candidate should have high integrity and a good
reputation, be aware of Cambodia's reality, have relevant
professional qualifications and experience, good
communications style, be able to relate to all employees at
the court, and be acceptable to both the RGC and the UN.


4. (C) Sok An said that he had requested the ECCC personnel
chief to send to donor missions the c.v. of Council of
Ministers Secretary of State Chan Tani. However, Sok An was
aware that there should not be a single candidate and
proposed to speak to Taksoe-Jensen about the process but
would provide a list of at least three candidates. Sok An
said that a second choice was Mr. Uth Chhorn, Auditor General
of the National Audit Authority of Cambodia. A third choice
should be a woman; therefore he was proposing Helen Jarvis
(NOTE: the former ECCC Public Affairs officer on the
Cambodian side, newly assigned to head the ECCC Victims Unit.
END NOTE.). "I did not tell her beforehand," he said calmly,
as Helen Jarvis, sitting to Sok An's immediate right showed
signs of shock at the announcement. Noting that Chan Tani

PHNOM PENH 00000343 002 OF 004


had practiced law in the U.S. and that Helen Jarvis was a
dual Cambodian-Australian citizen, Sok An stated that the
list was multinational.

Wait for Taksoe-Jensen to Weigh In
--------------


5. (C) Noting appreciation for the extensive thought put
into the new proposal in such a short time, Ambassador
Williamson stated the qualifications mentioned were
significant and that independence would be particularly
important. Ambassador Williamson said that his only
immediate concern was that he had not yet spoken in detail
with Taksoe-Jensen about the mechanism to select candidates,
and that he did not want to go further in his discussions
with Sok An and agree to something that he was not sure
Taksoe-Jensen would support. He indicated that it had been
tough getting the UN to the point where they were prepared to
agree to an independent Counselor and the fact that this
individual should preferably be Cambodian. He said that,
having come this far, he did not want the process to break
down by delivering Taksoe-Jensen a fait accompli with the
manner of selection and identity of the Counselor
pre-determined. Thus, he wanted to talk to Taksoe-Jensen to
review the concept and next steps well before discussion of
individual candidates. Ambassador Williamson would then
relay to Ambassador Rodley any feedback.


6. (C) Sok An said that wanted also to address how the
Counselor would be paid. If paid by only one side, the
Counselor could be viewed as "one-sided", he said.
Ambassador Williamson suggested that one possibility might be
to have each side contribute fifty percent of the salary --
an option to which Sok An seemed amenable. Sok An added that
the position would not require a big office and perhaps only
a private secretary. Anybody who wished to complain would
then have two chances, he noted. They could visit the office
at the ECCC, or they could ask for a private meeting
elsewhere. If they chose to be anonymous, they could
telephone the Counselor directly, he emphasized. It could
work very simply, he observed.

An Independent Function
--------------


7. (C) Ambassador Rodley related that she had communicated
with most of the Phnom Penh chiefs of mission and that just
about all donors noted there was one qualification important
to them: independence. We would need to add that
qualification to the list, she said. The Counselor would
need to be, and to be seen to be, independent; to that end,
she underscored that Sok An's verbal characterization was
essential to the list of qualifications: "neutral,
independent, and impartial." (COMMENT: This criterion
effectively eliminates two of the three candidates, as both
Chan Tani and Helen Jarvis report directly to Sok An. END
COMMENT.) Ambassador Rodley added that the Phnom Penh donors
underscored the need for a longer list or a more consultative
process to review names. (NOTE: Sok An seemed to take the
comment on board, noting that in the end only one name would
be chosen as Counselor and the work of the ECCC would go
forward. END NOTE.)


8. (C) Adding to Ambassador Rodley's remarks, Ambassador
Williamson said that as the anti-corruption mechanism is
explained to the public, and particularly to NGO's, it would
be important to defend the position and especially the person
filling it. Earlier proposals for the anti-corruption
mechanism were seen as widely transparent, but now it would
be different -- more discrete. Thus it was very important
that the person chosen have a solid reputation so as to
instill confidence and trust in the process. The profile of
the Counselor's characteristics would help in that process,
he noted. Ambassador Rodley added that in the "small house"
of the ECCC people should think of the Counselor not as a
position but a function that needed to be fulfilled.

A Review of the Proposal
--------------

PHNOM PENH 00000343 003 OF 004




9. (C) To ensure clarity about the proposed role, which he
said he would not at this stage share with NGO's, Ambassador
Williamson outlined the Counselor position:
-- An independent Counselor, whose status in this role would
be neither as a UN employee, nor as an employee of the
Cambodian side of the ECCC;
-- Mechanism of payment still needed to be worked out;
-- The Counselor could receive complaints, on a confidential
basis, from any party at the ECCC about misconduct -- from
the UN or Cambodian sides;
-- After receiving a complaint, the Counselor would first go
to the person accused of wrongdoing, ascertain the facts, and
counsel them, advising not to continue any wrong acts;
-- If direct counseling was not effective, then the Counselor
would consult with Sok An (for Cambodian employees) or Peter
Taksoe-Jensen (for international side employees) and request
intervention to stop the wrongdoing;
-- Sok An and Peter Taksoe-Jensen would have to list the
terms of reference of the Counselor in which there would be,
among other things, constraints on interactions with the
press, and no public statements about what the Counselor was
doing.
-- Only after the intervention did not succeed would some
type of investigation proceed, and perhaps it would be
conducted by the Joint Sessions.


10. (C) Sok An, noting the need for independence and
neutrality, reviewed a search his office had done of
Cambodian institutions, including the Constitutional Council
and the National Audit Authority (NAA). It turns out that
the Constitutional Council members are prohibited from taking
on other roles in government, he said. But the Auditor
General of the National Audit Authority can play the role of
a Counselor at the ECCC, he noted. Legally the NAA is an
independent institution not bound by the National Assembly.
Although they do not want to do the job, the NAA head told
Sok An that he would agree to the work, "if you need us."

Could Taksoe-Jensen Propose Names?
--------------


11. (C) Ambassador Williamson reiterated that he would
consult with Taksoe-Jensen about the proposed process and
relay any message through Ambassador Rodley. If
Taksoe-Jensen had any other thoughts on the process,
Ambassador Rodley would relay these to Sok An, he said.
Ambassador Rodley added that Taksoe-Jensen might have
questions. For example, Taksoe-Jensen might have names of
his own; she inquired if Sok An would be open to hearing
those names. Sok An noted that judges at the ECCC were
nominated by the UN Secretary General and that the RGC's
Supreme Council of the Magistracy then formally appointed the
judges to serve in the Cambodian national court system.
(NOTE: Article 3 of the UN-RGC agreement. END NOTE.) The
Cambodian government would likely follow a similar process to
prepare a list of Candidates for anti-corruption Counselor,
he said. Then Taksoe-Jensen could review the candidates and
select a name from the list, he concluded. Ambassador
Williamson noted that there was a degree of reciprocity in
that former process that would not be present here. He said
that he would nevertheless discuss the idea with
Taksoe-Jensen. Ambassador Williamson reiterated that
Taksoe-Jensen will be cognizant of the Counselor's personal
reputation in Cambodia and therefore might be compelled to
participate in the process of selection. While there was no
telling what Taksoe-Jensen's reaction might be, Sok An should
be prepared to discuss further this process, he said.


12. (C) In a closing pitch in which he said "everything is
smooth," Sok An spoke at length about the sterling qualities
of Auditor General Uth Chhorn, who had a high reputation at
the National Audit Authority to protect and would therefore
do nothing wrong. "He would not undermine his high position
by doing any bad things at the ECCC," he said. He could also
give good advice and find ways to advise and counsel
individuals at the ECCC, Sok An concluded. In a brief
exchange on how to handle the press, Ambassador Williamson
assured Sok An that the USG would maintain confidentiality on

PHNOM PENH 00000343 004 OF 004


this new proposal. Sok An agreed, but added that he would
refer to Ambassador Williamson's facilitation of the process
by which the UN and the RGC could resume talks.

Ambassadors: We Have the What, Now Who?
--------------


13. (C) That same evening, Ambassador Williamson briefed the
other six donors at a dinner hosted by Ambassador Rodley.
Discussion had moved beyond the now widely accepted
anti-corruption Counselor role to the critical question of
who could fulfill that function. All agreed that Chan Tani
and Helen Jarvis were not acceptable candidates. The French
Ambassador said that he had pressed Sok An to look at another
female candidate -- Kim Sathavy -- who is currently a supreme
court justice, has impressive credentials and is considered
to be an "honest judge." Sok An indicated he would try to do
so, but the French Ambassador did not know if she would
accept the offer, or if there were other difficulties with
the possible appointment. The Australian Ambassador
mentioned Neav Chanthana, the Deputy Governor of the National
Bank of Cambodia in charge of its financial investigations
unit. The Japanese Ambassador mentioned a retired official
who had been educated in France. But, by and large, the
group of Ambassadors agreed that the exercise of choosing
someone with a reputation for integrity who could live up to
the terms of the Counselor job would not be easy. A number
of Ambassadors agreed that Sok An would need to be coached to
include on the list candidates that the UN might propose as
suitable.

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


14. (C) The timing of Ambassador Williamson's visit was
perfect, and we remain convinced that Sok An was ready,
willing and able to move the process forward based upon the
trusted network he has developed with the U.S. and other
donors and a viable compromise proposal from the UN. There
is no doubt the Counselor position will face some opposition
from some NGO's but the role has every prospect of serving
well the preventative function it is meant to fulfill. The
biggest obstacle appears to be finding a candidate who is
worthy of the role. The Auditor General, who has served in
that role since 2001, is reported to be tough on foreign
company concessions working in Cambodia. We are unfamiliar
with the French favorite but do not take lightly the "honest
judge" title she apparently has earned. Post will share with
the Desk other candidacies as they surface, and will continue
to consult with other donor Ambassadors toward this end.
But, for the moment at least, the "deadlock" over a credible
anti-corruption mechanism that has largely eclipsed the good
work on the judicial side of the ECCC is a deadlock no more.


15. (U) Ambassador Williamson has cleared this cable.
RODLEY