Cablegate: The Eccc and Osji

DE RUEHPF #0422/01 0741032
O 151032Z MAR 07





E.O. 12958: DECL: 03/14/2017

Classified By: Pol/Econ Chief Margaret McKean; Reason: 1.4 (b) and (d)

1. (SBU) Summary. The Open Society Justice Initiative's
(OSJI) mid-February press statement highlighting an ongoing
UNDP audit into the Extraordinary Chambers' hiring practices
as well as possible corruption and kickback allegations
continues to be a front burner issue in Cambodia. While the
RGC reaction and subsequent OSJI response were simply a war
of words, more recent information suggests that the RGC is
planning retaliatory action that may effectively close OSJI's
office in Phnom Penh. On March 13, former U.S. Ambassador
David Scheffer briefed a number of foreign diplomats
regarding the possible consequences of a closure of the OSJI
monitoring operation. UN staff on the ECCC have briefed the
international judges of the situation; international judges
currently in Phnom Penh for the internal rules review session
are concerned, and reportedly have urged the UN OLA to
respond. End Summary.

OSJI in the Hot Seat

2. (C) On February 14, the OSJI released a press statement
calling for a thorough investigation of corruption
allegations against ECCC Cambodian judges and staff. The
statement requested that the results of the ongoing UNDP
audit looking into the allegations be released publicly.
OSJI said that if the allegations were proven to be true, the
ECCC should take immediate measures to address
vulnerabilities. OSJI has been concerned about such
allegations, which the organization has heard from different
sources both inside and outside the ECCC. The RGC response
has been predictable: DPM Sok An issued several blistering
statements to the press and ECCC Administrator Sean Vissoth
wrote a strong letter dated February 16 to OSJI's resident
representative Heather Ryan saying that OSJI would receive no
further cooperation from his office. A letter from OSJI's
Jim Goldston was published in the Cambodia Daily newspaper on
March 7, outlining OSJI's history of support for the Tribunal
but emphasizing that as a monitoring organization, OSJI could
not ignore the allegations. (Note: Although Goldston never
referred to Prime Minister Hun Sen by name in his letter, the
PM reportedly was enraged over the reference to RGC political
officials whose commitment to the ECCC has long been in
doubt. End Note.) By bringing them to light early in the
process, Heather Ryan told us that OSJI hoped that the ECCC
would heed OSJI's recommendations for dealing with the
charges. She argued that other international tribunals had
experienced similar problems, dealt with them as painful as
they were, and moved on. Cambodia should be no different,
she said. International ECCC staff publicly declared their
continued support for OSJI's monitoring work and indicated
they would meet with OSJI staff. (Comment: A subtext to
this issue was the quiet departure of Heather Ryan's chief
Cambodian staff member to Singapore following the issuance of
the February 14 press release; he returned after a couple
weeks and when OSJI was convinced there would be no threat to
his security. End Comment.)

3. (C) On March 8, the Cambodian judges to the ECCC
publicly asked the OSJI to exonerate them from any suspicion
that they were implicated in any corruption allegations, and
one judge asked for OSJI to retract its earlier statement.
With the issue coming to a head when the international judges
arrived in Phnom Penh to continue their deliberations with
the Cambodian judges over the draft internal rules, many
observers feared that the OSJI flap might derail the talks.
However, initial reports of the discussions were promising,
and sources at the ECCC hoped that the two issues might be
dealt with separately so that the controversy over OSJI would
not poison prospects for a successful review committee
session and agreement on the draft rules finalized before the
international judges were scheduled to leave on March 16.

4. (C) On March 10, OSJI received information that the RGC
might be planning to evict OSJI from Cambodia and end
cooperation on its monitoring role. OSJI had received
reports from ECCC staff that the issue had moved into the
political realm for the government, and the PM reportedly had
agreed that the office could be closed. DPM Sok An was
considering the timing of any action, and OSJI believed that
the RGC planned to wait until after the review committee's
work was done before moving ahead with any plan. There was

PHNOM PENH 00000422 002 OF 004

also talk, reportedly, that Heather Ryan's visa might be
canceled so that she would have to leave the country. At
this stage, the information OSJI had received was perceived
to be sketchy, and it was not clear that the RGC had made any
firm decisions. OSJI did not want to alarm donors or the
judges for fear of ruining the still-positive negotiations.

David Scheffer Returns to Cambodia

5. (C) On March 11, former Ambassador at large for War
Crimes David Scheffer met with Sean Vissoth, and Vissoth
confirmed for Scheffer that he (Vissoth) had been instructed
by DPM Sok An to construct a chronology of the OSJI affair
that would be used as part of the government's plan to shut
down the office. Vissoth said that the order had been given
at a recent wedding ceremony where the PM and other senior
officials had discussed the matter. Vissoth had no firm
deadline, and told Scheffer that he did not want to carry out
the order. He requested that Scheffer alert the U.S. Embassy
and the Ambassador so that a pre-emptive intervention with
DPM Sok An might be made to turn off the RGC's plan. On
March 12, Scheffer met with the Ambassador and Pol/Econ Chief
and outlined what Vissoth had said. The Ambassador offered
to host a briefing by Scheffer for other diplomats so that
they could factor the information into their own meetings.
Scheffer said his key concern was that OSJI's departure would
almost certainly be interpreted by the UN legal office as a
breach of the UN/RGC agreement (Article 12, subparagraph 2).
He wondered if the RGC fully understood the implications of
closing down the only international monitoring body.

6. (C) Scheffer also made clear that he personally believed
OSJI had made a mistake in their handling of the UNDP audit
by going public so quickly. He noted that his understanding
was that OSJI believed the matter was heading for the
international wire services and that the organization wanted
to have a press statement ready to issue in conjunction with
the news going public. Unfortunately, the OSJI press release
outpaced any other public mention of the audit, and therefore
OSJI became the organization that exposed the story.
Scheffer noted that the RGC interpreted this result as "bad
faith" on the part of OSJI since OSJI had not first sought a
meeting with RGC officials to express concern about

7. (C) On March 13, Scheffer and the Ambassador met with
representatives of the French, Japanese, British, German,
Canadian, and Australian embassies and Scheffer provided them
with a briefing on the OSJI issue, as well as an update of
the discussions on the internal rules. On the former
subject, Scheffer noted that the senior UN legal staff member
had informed the international judges of what was happening
with OSJI; ECCC staff members had heard that the press might
have gotten wind of the RGC's plan to remove OSJI from the
country, and the UN legal officer decided that he should
explain what was happening rather than have the judges read
it in the press after their departure. All the international
judges expressed concern about any action by the RGC to close
OSJI and believe it might be a violation of the relevant
portion of the UN/RGC agreement regarding monitoring.
However, they were split over how to address the situation.
Judge Marcel Lemonde reportedly wanted to approach the
problem cautiously for fear of derailing the rules process.
Others were concerned that if they did not act during their
time in Cambodia, their leverage with the RGC would be less
effective later. The judges asked Michelle Lee to write to
the UN legal office about the issue to ensure New York was
aware; we understand the UN legal office is prepared to
respond but wants to wait until after the rules review
committee finishes this week so as not to disrupt the work.

8. (SBU) The Ambassador discussed with those at the
Scheffer briefing the possibility of a joint demarche with
the RGC. Missions expressed disappointment over how OSJI has
conducted itself and precipitated its current problems with
the RGC, but most also agreed that it would useful for the
government to understand the possible consequences of its
actions vis-a-vis the UN/RGC agreement. The individual
response by the diplomats at the meeting was expected: the
French and Japanese Ambassadors, though in the country, did
not come but sent lower officials; neither offered any

PHNOM PENH 00000422 003 OF 004

comments nor signs of support for joint action. The UK,
German, and Canadian reps said they would be willing, but
thought that the absence of any French and Japanese
involvement (as co-chairs of the Friends of the ECCC donor
group) meant any demarche would not be taken seriously by the
RGC. The Australian DCM wanted to consult with Canberra, but
noted that his Ambassador had farewell calls the following
day with the PM and DPM Sok An, and would raise the issue.
In the meantime, David Scheffer offered to seek assurances
from OSJI/New York that future disclosures of information
potentially damaging to the ECCC would be provided to the
court with adequate notice and advance consultation before
going to press. (Note: Goldston emailed Scheffer a note
along the requested lines on March 14; we distributed the
note to the donors. End Note.)

But What About Those Allegations?

9. (C) In the midst of the continuing stream of press
articles about OSJI and attention to the review committee's
progress and prospects for success, the allegations over
corruption and kickbacks have been nearly forgotten. UN
Human Rights Office director Margo Picken noted that the RGC
plays these issues very skillfully and the OSJI matter
follows a familiar pattern. Instead of addressing the
accusations of government shortcomings, the government
sidesteps the real issue and heaps blame upon the
organization/individual highlighting the problem. Her office
and its Special Rapporteur have been on the receiving end of
the government's ire, so are sympathetic to OSJI's

10. (C) With respect to the allegations, we have heard (but
cannot confirm) that the UNDP audit has been completed and
recommended that an investigation be done as the next step.
If true, this would not necessarily mean that the audit
confirmed corruption had occurred at the ECCC; rather, it
would mean that there was sufficient information uncovered to
warrant further investigation. One senior ECCC staff member
has told us that there exists a videotape of an ECCC official
admitting that the kickback system exists at the court.
Sources familiar with the court and the allegations suggest
that an investigation team skilled at dealing with such
issues would likely be able to develop a case. One Cambodian
staff member who claims to be subjected to the system
reportedly has thanked ECCC international staff for bringing
the matter to OSJI and the public's attention, so that
hopefully something may be done to stop the practice.
(Comment: Kickbacks are common in the Cambodian public
sector; allegations that kickbacks may be occurring at the
court surprised no one. We understand that some ECCC
international staff members are well aware that the practice
exists because their Cambodian colleagues have told them;
however, Cambodians are very reluctant to file complaints or
publicly acknowledge the existence of corrupt practices. No
whistleblower culture exists, and people have legitimate
fears when it comes to making public information that could
be embarrassing to senior officials. End Comment.)


11. (C) There are interesting aspects to this problem that
warrant mention. First, it is notable that Sean Vissoth took
a very proactive position on behalf of OSJI on this matter,
informing us about the RGC plan as well as urging that the
international community weigh in before the government takes
steps that would not be easily corrected. On the allegations
themselves, concerned ECCC staff and OSJI believe that the
issue about corruption should be addressed; otherwise,
defense counsel may raise it at the outset of the trials in
conjunction with an opening argument challenging the
legitimacy of the court and the competence/integrity of the
Cambodian judges. The head of the ECCC's defense office,
Rupert Skilbeck, has allowed that such a tactic is a
possibility. Finally, the government's (over)reaction to the
OSJI press release reveals again RGC officials' unease with a
high-profile judicial process designed to limit political
influence. While OSJI could have handled this matter better
-- especially by anticipating that PM Hun Sen would take
Goldston's letter very personally -- RGC sensitivities cannot
be allowed to derail what must be a non-political tribunal.

PHNOM PENH 00000422 004 OF 004

It is very difficult for the RGC to relinquish control over a
process where news cameras recording excerpts of the trial
proceedings may be beaming testimony all over the globe.

12. (SBU) Comment continued: It is still unclear whether
the international and Cambodian judges will be able to
finalize the rules before the March 16 deadline, but reports
for the last two days have been promising. While this
question is more significant as a measure of the court's
ability to stand up a credible system, we fear it is
overshadowed at the moment in the, at times very personal,
dispute over OSJI. End Comment.

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