KHMER ROUGE TRIBUNAL "FRIENDS GROUP" MEETS FOR FIRST TIME IN A YEAR: SOLID JUDICIAL PERFORMANCE MEETS EXTERNAL SHOCKS

Identifier: 
09PHNOMPENH316

C O N F I D E N T I A L SECTION 01 OF 03 PHNOM PENH 000316

CORRECTED COPY //TO CORRECT PARA CLASSIFICATION MARKINGS//

SIPDIS

STATE FOR EAP/MLS, D, P, DRL, IO, S/WCI
TOKYO PASS TO AMBASSADOR WILLIAMSON
USUN FOR M. SIMONOFF

E.O. 12958: DECL: 05/14/2019
TAGS: PREL, PGOV, KJUS, PHUM, CB
SUBJECT: KHMER ROUGE TRIBUNAL "FRIENDS GROUP" MEETS FOR
FIRST TIME IN A YEAR: SOLID JUDICIAL PERFORMANCE MEETS
EXTERNAL SHOCKS

REF: A. PHNOM PENH 297
B. PHNOM PENH 264

PHNOM PENH 00000316 001.2 OF 003

Classified By: CHARGE D'AFFAIRES A.I. THEODORE ALLEGRA FOR REASONS 1.4
(B, D)

1. (C) SUMMARY: In its first meeting in a year, the
"Friends Group" of donors at the Extraordinary Chambers in
the Courts of Cambodia (ECCC) focused May 6 on the
substantive work of the court and the array of administrative
challenges the court faces to meet external problems. The
judicial proceedings were reported to be going smoothly, with
one trial under way and another planned. The Friends Group
-- which includes donors and the UN and Cambodian
administrators -- heard about investigations into Khmer Rouge
atrocities hampered by historic KR policies of mass
relocation and records destruction. The court's hybrid
nature has led to significant language interpretation
difficulties, and its inclusion of victims as civil parties
means more management tasks. While international media
attention was phenomenal for Duch's trial (the S-21 torture
center head), the court's sustained reach to either local or
international audiences was reported as weak. Perennial
budget difficulties -- labeled by the UN deputy as a
"constant threat of bankruptcy" -- are a chief impediment to
tackling these external shocks effectively. The Charge urged
the UN and Cambodian partners to urgently settle on an
anti-corruption mechanism (Ref B) once and for all. In the
meantime, as the French co-chair underscored, it is time for
the ECCC to put an end to looking backward at past acts of
corruption and instead look ahead to the real challenges
facing the court in order to maintain the international
standards expected of it. Deputy Prime Minister Sok An
indicated to Charge in a separate May 6 meeting that he was
seeking a way forward in stalled negotiations with the UN on
the anti-corruption mechanism. END SUMMARY.

Cases Going Well, but Face External Setbacks
--------------------------------------------

2. (C) Cambodian Acting ECCC Director Tony Khranh began
the Friends Group meeting with an impressive account of the
judicial progress over the past year. In addition to opening
the first case against Duch in February, the judges held
their fifth plenary in March, the Supreme Court Chambers
assembled for the first time, and the Pre-Trial Chamber (PTC)
has rendered over 50 procedural and final decisions, reported
to form "a firm foundation for the jurisprudence of the
ECCC." The PTC will also rule on an appeal to prosecute
additional suspects in early June (Ref B). The first case
will likely extend until September, according to the
administrators. In the second case against four senior Khmer
Rouge leaders, the evidence is amassing, but investigations
in the provinces were slow and sometimes faced significant
difficulties in tracking down witnesses. ECCC Deputy
Director Knut Rosandhaug opined that the second case would
not have a closing order (indictment) until near the end of
the first quarter of 2010, and the actual trial would not
start until mid-2010.

3. (C) The court was still short-staffed in the
interpretation section by one third of the required staff,
especially French interpreters. Since most Cambodians now
choose English as a second language, the court had to revert
to a relay system (Khmer to English to French and vice versa)
to provide on-the-spot interpretation to the international
lawyers on the defense teams. Given that the proceedings
were digitally recorded and a written transcript was provided
later, the effect on the fairness of the proceedings was not
considered to be material. Nonetheless, the ECCC was working
to upgrade this area, notwithstanding the difficulties in
recruiting posed by an unpredictable future budget. Donors
also heard that document translation needs were being met for
the investigation teams, and that the second case did not
have significant backlogs.

Talented Recruits Balk, Question If Jobs Will Remain

PHNOM PENH 00000316 002 OF 003

--------------------------------------------- -------

4. (C) ECCC Chief of Personnel M. Rong Chhorn reported
that the court was operating efficiently with 252 Cambodian
staff members, less than the 321 positions allocated. He
noted that this efficiency would continue as the court
re-allocated filled positions to meet current needs as they
were identified, and that UN staff has helped to choose
Cambodian national staff since early 2008. Chhorn also
stated that some highly talented Cambodian nationals selected
for positions did not accept the jobs because they questioned
whether the court would still be operating in a year's time.
Rumors of the court's budget difficulties were having an
impact on the recruiting, he concluded. (NOTE: When informed
of this difficulty later that evening, Deputy Prime Minister
Sok An appeared surprised to learn of it. END NOTE.)

5. (C) The court's financial report showed that both the
UN and the Cambodian sides had sufficient funds until the end
of 2009. The Cambodian side reported the budgeted cost of
operations from 2006 to the end of 2009 as $19.1 million but
would spend only the amount of $18 million by year's end.
Given the savings realized of $1.1 million in 2008, the
Cambodian side could operate until the end of the year
without additional donations. Nonetheless, the Cambodian
side requested that the UNDP release the $885,000 in funds
frozen since last year. UNDP's Jo Scheuer noted that the
UNDP could not release the funds absent a credible
anti-corruption mechanism, adding that three communications
to DPM Sok An on this matter had not yet been answered. The
UNDP remained open to further discussions on the matter, he
said.

Bankruptcy and the Need for an Anti-Corruption Mechanism
--------------------------------------------- -----------

6. (C) With "bankruptcy just around the corner" during
most of its operating life, ECCC Deputy Knut Rosandhaug urged
the donors to pay more attention to the court's operating
budget for the sake of a smoothly operating judicial process.
The Charge, noting the sense of urgency that this precarious
financial situation raised, urged both sides to tackle afresh
the anti-corruption measures and reach an agreement in as
expeditious manner as possible on such a mechanism. While
most other donors nodded in agreement, none spoke up to add
points of their own to the Charge's presentation on this
issue.

Victims and Civil Parties
-------------------------

7. (C) Victim Units Head Keat Bophal reported that 94
civil parties to the Duch case were represented by 4 groups
of lawyers. However, she said the real difficulty remained
with the 3500 forms presented to the court by victims in the
second case. So far, 37 lawyers had presented themselves in
the second case, and more would join, all of whom would be
formed into three teams. Bophal said that it might not be
until September before all the victims in the second case
were properly registered at the ECCC. The French Ambassador
noted that the court had not yet provided for handling of
foreign victims. (NOTE: We know of one U.S.-registered
lawyer in the second case who has several clients from among
the Cambodian refugee community in the U.S. END NOTE.)

8. (C) The UN's Rosandhaug referred to an ongoing debate
among the judges about how to handle the civil parties who
were allowed to participate as a means to better incorporate
Cambodian victims into the court's proceedings. The
Australian Ambassador emphasized the importance of the
meaningful participation by the victims. The Charge stressed
that NGO's could play a vital role in facilitating
participation of victims and civil parties. Bophal agreed
that intermediary organizations could help provide quality
information to the victims and assist their participation in
the court's proceedings.

PHNOM PENH 00000316 003 OF 003

Public Relations
----------------

9. (C) Cambodian ECCC Public Affairs officer Helen Jarvis
touched on the international media attention at the beginning
of the Duch trial (240 journalists attended) and noted that
local television and radio picked up the proceedings some of
the time. In addition, a video streaming feed is available
on-line (http://www.cambodiatribunal.org) and DVD's of each
day's proceedings are made available, usually within 24
hours. The court had the largest public gallery among
international tribunals, with 494 seats. Ironically,
Cambodia's digital backbone could not sustain the
videostreaming very effectively, but it works well in most
modern-equipped nations, she said. The modern courtroom
facilities, with computer hookups at every desk and the
ability to present evidence electronically from a
state-of-the art case management system, was also noted.
Nonetheless, most donors appeared to expect more in terms of
public outreach from the court, as expressed by the
Australian Ambassador who remarked on the public's "high
expectations."

10. (C) In wrapping up the presentations, the French
Ambassador noted that the anti-corruption mechanism must be
resolved soon. Only by solving this problem could the donors
and staff of the ECCC squarely face the challenges of the
court's judicial proceedings, especially since perennial
budget worries gave the court a constant sense of emergency.
(A text of the ECCC Cambodian national side's remarks has
been sent to the Desk.)

Sok An on the KRT
-----------------

11. (C) The evening of May 6, Sok An met Charge to review a
human rights case about to enter the courts (Ref A), but
spent more than half of the time talking about the corruption
allegations in the ECCC. Sok An indicted that he was upset
about international press coverage of allegations against
former ECCC Director Sean Visoth, who reportedly ran a salary
kickback scheme at the ECCC. (NOTE: Sean Visoth has since
left the court in a politically expedient maneuver by the
Cambodians, and is off the ECCC payroll. END NOTE.) Sok An
reviewed past UN dissembling during the 1997-2002
negotiations on a UN-Cambodian agreement to form the ECCC,
and painted the current tactics of UN/OLA ASYG Peter
Taksoe-Jensen in that light. He pitched his own most recent
offer to Taksoe-Jensen (sent to donors on April 10) --
referring to the principles of confidentiality and anonymity
-- and noted that he had received Taksoe-Jensen's last
written proposal via an April 17 letter. But most of all,
Sok An expressed exasperation with the process and a clear
disinclination for negotiation by letters back and forth.
Charge noted S/WCI Ambassador-at-Large for War Crimes Clint
Williamson's upcoming visit and recalled how previous USG
officials had helped Cambodia break through stalled
negotiations.

12. (C) COMMENT: We agree that the good work of the KR
Tribunal has too much at stake to ignore the many
administrative challenges it faces or to under-fund the
court's operations. Getting a credible anti-corruption
mechanism in place must remain a top priority so that all can
re-focus energies on the real and pressing needs of the
court. Sok An seemed very tired of the negotiation process
and very eager for creative and specific advice on how to
move forward on that issue. We believe that Sok An thrives
on personal interactions and that Amb. Williamson's visit is
a perfect opportunity to engage creatively on how to break
the current deadlock. We are seeking two meetings with Sok
An -- at the beginning and end of Amb. Williamson's visit --
to pursue just such an effort.
ALLEGRA