Cablegate: Recent Eccc Developments

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DE RUEHPF #1983/01 3061106
ZNR UUUUU ZZH
O 021106Z NOV 06
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7556
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUEHRL/AMEMBASSY BERLIN PRIORITY 0138
RUEHSW/AMEMBASSY BERN PRIORITY 0024
RUEHOT/AMEMBASSY OTTAWA PRIORITY 0529
RUEHFR/AMEMBASSY PARIS PRIORITY 0548
RUEHKO/AMEMBASSY TOKYO PRIORITY 3103
RUCNDT/USMISSION USUN NEW YORK PRIORITY 2193

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STATE FOR EAP/MLS, S/WCI, AND DRL

E.O. 12958: N/A
TAGS: PGOV KJUS PREL EAID CB
SUBJECT: RECENT ECCC DEVELOPMENTS

1. (SBU) Summary. Recent meetings concerning the
Extraordinary Chambers have highlighted funding gaps and the
need for additional support from donors. The role of the
judicial police is looming as an issue requiring
clarification and possible donor intervention with the RGC to
ensure that the ECCC receives appropriate MOI support.
Victim/witness support remains an underfunded area. Defense
Office Director Rupert Skilbeck provided a briefing on his
office's staffing, budget, and operational plan during an
October 26 Friends of the ECCC meeting. Separately, David
Tolbert, who has prior experience working with the ICTY, met
with ECCC officials in late October during an OSJI-sponsored
visit, and provided the Embassy with his observations on
shortcomings in the current ECCC administration. End Summary.

October 26 Friends of the ECCC Meeting
--------------------------------------

2. (SBU) During a Japanese Embassy-sponsored Friends of the
ECCC meeting on October 26, ECCC Director of Administration
Sean Vissoth highlighted recent progress by the ECCC since
the last Friends meeting in August: continued work by the
Co-Prosecutors and Co-Investigating Judges, Principal
Defender Rubert Skilbeck's arrival, finalization of the draft
internal rules by the Rules Committee, scheduling of a
plenary session for the judges from November 20-25, donation
of pre-fabricated structures for use as a temporary detention
facility at the ECCC site by the Government of Japan (USD
45,000), ECCC website (www.eccc.gov.kh) established, fifth
round of personnel recruitment (93 international and
Cambodian staff hired so far), and an independent audit will
be conducted in December 2006 with another to follow in
January 2007.

3. (SBU) Vissoth noted that the ECCC has a number of
challenges in the short term, mostly surrounding the
inadequate travel budget for the staff to conduct public
outreach. The public affairs office continues to work with
NGOs to use the latter's programs as a vehicle for public
outreach, and Vissoth cited the recent Center for Social
Development (CSD)-sponsored public forum in Kratie province
on the Khmer Rouge trials that involved both Canadian
Co-Prosecutor Robert Petit and Cambodian Co-Prosecutor Chea
Leang as an example. DC-CAM continues to bring several
hundred people every month to the court site, and ECCC
personnel are hosting numerous official visitors and training
sessions each month. The draft criminal procedure code is
with the National Assembly awaiting passage, and will form
the basis for the ECCC's internal rules; the rules committee
has worked from the draft code in the preparation of the
court's internal draft rules. The rules have been finalized
and are undergoing translation into the court's three
languages (English, Khmer, and French).

4. (SBU) Deputy ECCC Administrator Michelle Lee argued that
some of the funding gaps identified in a recent OSJI study to
donor states (emailed to the desk) would not preclude the
ECCC's work. Lee underscored that the United Nations allows
for flexibility in the use of UN funds, and she has the
prerogative to redeploy monies depending on shifting
priorities. Two immediate areas where donors could
supplement the current budget are in victim/witness support
and the establishment of an audio/visual/transcript capacity
within the ECCC. In response to another criticism in the
OSJI report, Vissoth added that the hiring practices for the
ECCC Cambodian staff are transparent and based on merit.

5. (SBU) Rupert Skilbeck, Principal Defender and head of
the Defense Office at the ECCC, provided participants with an
overview of his office's budget, staffing, and operational
plan. He noted that his office was not envisaged in the
original agreement between the UN and the RGC; however,
attention must be paid to the defense side of the trials if
the ECCC is to meet international standards of justice. His
USD 4.7 million budget is predicated on an estimated seven
defendants; Skilbeck noted that if the Co-Prosecutors agree
to pursue additional cases, the budget will grow as well. He
plans to pay legal defense lawyers the same as the Cambodian
prosecutors are paid; such fees are far beyond those paid in
Cambodia and Skilbeck cautioned the salaries will raise
public relations questions once the trials begin. A second
area that may change in how the defense office conducts its
work is how the ECCC judges will address the role of victims

PHNOM PENH 00001983 002 OF 003

joining the criminal proceedings as civil parties, which is
permitted under Cambodian law. Skilbeck noted that this
question is likely to be addressed by the internal rules
currently under consideration by the ECCC judges.

6. (SBU) Discussions with donors highlighted several new
issues with budgetary/legal ramifications. First, there is a
sense among some ECCC staff that the pre-trial chamber may
have to begin its work sooner than expected with both
Cambodian and international judges beginning work on a
full-time basis early in 2007. An area of discussion within
the rules committee revolved around absentia trials and
whether the ECCC should permit them. The draft internal
rules reportedly envision a central role for the judicial
police, but so far the MOI has provided no clarity on their
role, supervision, and authorities. A list of 25 names has
been provided to the ECCC so that training can begin, but
these officers have not been assigned to the ECCC; they will
be made available within 48 hours notice for specific
assignments and details. In a separate lunch with donors
following the general meeting, Michelle Lee and others argued
that the judicial police should be assigned on a full-time
basis to the ECCC. She promised to remain in touch with
donors on this issue should diplomatic pressure be needed to
prod the RGC -- and more specifically, the MOI -- to provide
the necessary cooperation and support.

7. (SBU) Aside from the issue of the judicial police, a
further concern of the ECCC staff surrounds victim/witness
protection. One relatively junior international staff member
has joined the ECCC while the Cambodian side has two people,
but Lee and others realize this is wholly inadequate. Lee
noted she would be approaching donors in the near future with
a more specific proposal. Separately, investigatory staff
members from Petit's office have told the Embassy that they
are purposefully not interviewing more sensitive witnesses at
this time because of the lack of an adequate victim/witness
support capacity within the ECCC.

The ECCC: Judge-led Court or Administration-led Court?
--------------------------------------------- ----------

8. (SBU) David Tolbert, formerly associated with the ICTY,
visited Cambodia in late October during an OSJI-sponsored
trip to work with the ECCC administrative staff on
establishing a positive relationship between the various
offices on both the legal and administrative sides of the
ECCC. Tolbert met with Pol/Econ Chief on October 27 and
outlined several areas where he sees room for improvement.
Not surprisingly, some of his observations mirrored those
expressed the previous day during the Friends meeting.
Specifically, he identified victim/witness support as a key
shortcoming, in addition to the lack of progress in
establishing a judicial police unit within the ECCC. He
noted that the ECCC's budget on public outreach and media was
underfunded and while not an immediate priority, would be
detrimental to any hopes for a legacy effect of the ECCC on
Cambodia's judicial system. Another problem Tolbert
highlighted was the lack of a Registrar or legal
representative on the ECCC's Administrative staff. Many of
the current problems are legal in nature, and might be more
easily addressed if such an office existed as it does in
other international tribunals, noted Tolbert. OSJI's Kelly
Askin and Heather Ryan added that the question boils down to
whether the ECCC will be a judge-led court or an
administrative-led one. At the moment, it appears that the
court is being driven by the administrative function and
budgetary limitations, which OSJI believes is not optimal for
delivering international standards of justice.

Comment
-------

9. (SBU) Much of the foregoing is not new information, and
we were aware of the issues surrounding victim/witness
support as well as public affairs budgetary limitations based
on other meetings with ECCC personnel. Neither issue is
precluding the ECCC's work and progress thus far, but will
require attention over the coming weeks. However, the
problems between the ECCC and the MOI concerning the role of
judicial police may require diplomatic intervention, and
several Missions (e.g., Canada, Germany, Switzerland)
mentioned possibly coordinated action. The latter issue was

PHNOM PENH 00001983 003 OF 003

one that has frustrated Michelle Lee, who indicated she would
approach donors for assistance if she did not receive
satisfaction from the Ministry of Interior. End Comment.
MUSSOMELI

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