Cablegate: Khmer Rouge Tribunal Building Momentum

VZCZCXRO2552
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #1362/01 2080903
ZNR UUUUU ZZH
O 270903Z JUL 06
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7086
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUCNDT/USMISSION USUN NEW YORK PRIORITY 2164

UNCLAS SECTION 01 OF 02 PHNOM PENH 001362

SIPDIS

SENSITIVE
SIPDIS

STATE FOR EAP/MLS, DRL, S/WCI

E.O. 12958: N/A
TAGS: PHUM KJUS PREL CB
SUBJECT: KHMER ROUGE TRIBUNAL BUILDING MOMENTUM

REF: A. PHNOM PENH 1275

B. PHNOM PENH 941

1. (U) Summary. Following initial criticism of a slow
start, progress of the Khmer Rouge Tribunal on a variety of
fronts has picked up in July, according to the Open Society
Justice Initiative (OSJI). OSJI believes the most
significant new development is the court's adoption of the
ICC Code of Ethics. A number of issues remain to be
resolved, however, including whether international defense
counsel will be permitted in the court to participate in the
defense of their clients. A major step will be the National
Assembly's passage of a Criminal Procedure Code, which will
be an indicator of the commitment of the Cambodian government
to the process. OSJI believes now that some international
judges and prosecutors plus their staff are on the ground,
the ECCC is coming together faster then any previous
international tribunal. End summary.

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International and Cambodian Judges Meet For The First Time
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2. (SBU) On July 17, A/DCM and Pol/Econ intern met with
Heather Ryan and Tracey Gurd from the Open Society Justice
Initiative (OSJI) to obtain their perceptions of the joint
judicial training sessions organized in early July for the
international and Cambodian judges and prosecutors. The
following represents OSJI's observations. Ryan highlighted
both positive developments and specific gaps in
administration as upcoming challenges.

3. (SBU) OSJI said that almost all of the Extraordinary
Chambers (ECCC) observers commented that the initial training
sessions went better than expected. The entire group
appeared heavily committed and engaged in the process of
drafting the procedures, in contrast with other tribunals in
which court officials were only involved in the conduct of
the trial itself and not with issues that define the nature
and procedures of the court. For example, court officials
discussed issues dealing with the "super majority,"
participation of international defense counsel, victim
participation, and the role of pretrial hearings. OSJI's
Heather Ryan praised these discussions as an unprecedented
achievement in judicial cooperation.

4. (SBU) In OSJI's view, the most important development was
the decision to adopt the ICC Code of Ethics, which Ryan said
was another step toward reaching international standards.
The court has also formed two committees: a rules committee
and a committee which serves to liaise between judges and
administrators. In upcoming months, court officials will
finalize internal rules with a goal of further meeting
international standards. In October, there will be a formal
vote to decide on which rules to adopt. Following the
adoption of rules, the Extraordinary Chambers (ECCC) will
move cases to the investigating judges.

5. (SBU) Prosecutors will decide between two approaches:
either to evaluate evidence based on geographical regions or
by key figures. Prosecutors also discussed the scope of
their indictments. Though they will follow the mandate of
finding evidence against senior leaders and those most
responsible for the crimes, Ryan believed it was possible
that prosecutors might go after officials at the district
level, many of whom were responsible for numerous deaths.
Ryan commented that the Khmer Rouge officials at the district
level were often the ones who committed gross crimes against
humanity.

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Challenges
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6. (SBU) Ryan said French judicial officials complained
that training sessions were conducted in English and Khmer,
omitting the French language. They demonstrated their
unhappiness by answering questions at the press conference in
French without translation. There has been some concern over
the issue of participation from international defense lawyers
within the court (see reftel B). However, the ECCC is urging
the Cambodia Bar Association to change the Association's
internal rules to allow foreign counsel to defend the accused
in the court. Overall defense counsel coordination and
liaison with the ECCC will be handled by Rupert Skilibeck, an
Englishman with experience in Sierra Leone and Rwanda, who is
a UN hire loosely affiliated with the ECCC's Office of
Administration. Skilibeck hopes to use the trial to raise
the standards for defense counsels and help overall reform in

PHNOM PENH 00001362 002 OF 002

the Cambodian judiciary.

7. (SBU) OSJI confirmed reports that DC-CAM was reluctant
to turn over documents to the ECCC (reftel A). DC-CAM's
draft MOU requires that a fee of five dollars will be charged
to view an original document in addition to filling out forms
that would indicate who wanted to see what form. Prosecutors
and defense counsel found this to be problematic due to the
sensitive nature of litigation and believed it was
unnecessary. (Note: Since reftel A, Chhang has turned over
microfilmed documents to the ECCC, but he is still seeking to
negotiate the MOU. End Note.)

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ECCC Coming Together Quicker than Previous Tribunals
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8. (SBU) Ryan said that some of the professional staff
hired by the ECCC was excellent, including Steve Heder and
Craig Etcheson, who are currently assisting international
prosecutor Robert Petit. She noted that OSJI has hired a
technical advisor, Wanda Hall, to assist the ECCC with
educational outreach. She singled out Peter Foster, who has
created innovative media projects for public outreach which
are far superior to those used in other international
tribunals. On the negative side, the Cambodian prosecutor's
office has taken on three staff, two of whom are considered
politically biased and easily influenced by the government.
Cambodian Prosecutor Chea Leang told Ryan that she had no say
in the selections and the RGC was responsible for the
choices.

9. (SBU) In the next few months, OSJI anticipates that the
Code of Criminal Procedure will be passed by the National
Assembly. In Ryan's view, the relative speed with which it
is passed will be an indicator of how much traction the ECCC
has gained with the Cambodian government.

10. (U) Comment. OSJI believes that now that the judges
and prosecutors are on the ground and committed to the task,
this tribunal is coming together faster than any other past
international tribunal. The death in the last few days (see
septel) of one of the principal defendants in the ECCC, Ta
Mok, begs the question whether it will come together fast
enough to ensure none of the other elderly defendants eludes
justice.

MUSSOMELI

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