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Cablegate: Khmer Rouge Tribunal: Rocky Road for New Cases,

VZCZCXYZ0001
PP RUEHWEB

DE RUEHPF #0947/01 3331038
ZNY CCCCC ZZH
P 281038Z NOV 08
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC PRIORITY 0148
INFO RUCNDT/USMISSION USUN NEW YORK PRIORITY 2335

C O N F I D E N T I A L PHNOM PENH 000947

SIPDIS

STATE FOR EAP, P, D, DRL, IO, S/WCI

E.O. 12958: DECL: 11/26/2018
TAGS: PREL KJUS PHUM CB
SUBJECT: KHMER ROUGE TRIBUNAL: ROCKY ROAD FOR NEW CASES,
STEADY PATH FOR TRIAL OF FIVE KR LEADERS

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

1. (C) SUMMARY: The next weeks will see major developments
in the work of the Extraordinary Chambers in the Courts of
Cambodia (ECCC), as the Khmer Rouge Tribunal is called. In a
confidential development, the Cambodian co-prosecutor
reportedly disagrees with the submission of additional case
files concerning six more individuals alleged to have
committed crimes against humanity. Not all of the six may
clearly meet a single definition of "those most responsible"
for war crimes as called for in the court's mandate, but all
are believed to be notorious for overseeing systems that led
to the deaths of tens of thousands of Cambodians during the
Pol Pot era. The process of adding more accused can go on a
number of tracks. The set-back posed by the co-prosecutor's
non-consent is likely reparable. Court sources say that, no
matter what the outcome, most of the six are likely to face
an initial prosecution and, for any who do not face a full
trial, there will be a public reckoning. Separately, the
Pre-Trial Chamber (PTC) is set to rule on December 5 on
prosecuting Tuol Sleng (S-21) torture prison head Kaing Guek
Eav for crimes against humanity based on a theory of "joint
criminal enterprise," giving prosecutors more room to make
their case against Duch and, significantly, build their case
against the other detained KR leaders. END SUMMARY.

Rocky Road for New Prosecutions
-------------------------------

2. (C) According to sources familiar with the ECCC
co-prosecutors office, UNAKRT Prosecutor Robert Petit has
confidential case files on six individuals, five of whom are
alleged to each be responsible for the deaths of more than
100,000 Cambodians. Petit has been pressing Cambodian
co-prosecutor Chea Leang these past few weeks to support an
initial submission to the co-investigating judges regarding
all six cases. After two weeks of negotiations, sources
close to Chea Leang's office state that she answered Petit
definitively on November 27 that she could not support any of
the cases and that Petit should now feel free to submit his
case the Pre-Trial Chamber (PTC). Whether Petit will submit
all six cases to the PTC is still an unknown, as ECCC UN
sources report one or two cases appear to be of a different
character, perhaps with less supporting evidence.

3. (C) The ECCC rules state that the PTC can reject such a
case submission only if a super-majority of four judges out
of seven agree. Most court observers believe the PTC will
agree to accept all the cases, at which point the files will
go to co-investigating judges Marcel LeMonde and You Bunleng.
If there is disagreement at this next stage, the case files
would go back to the PTC where a second positive vote is
expected by many court watchers. Solution of the initial
disagreement between prosecutors will add three months to the
court's timetable. A similar dispute about adding new cases
at the co-investigating judges' level would add another three
to six months to the proceedings. However, by Fall 2009, the
court will be in a position to bring forward new accused,
according to ECCC and court watcher sources.

4. (C) All of the proceedings on new cases are supposed to
be conducted in camera and are confidential. The Pre-Trial
Chamber may elect not to announce either its consideration of
or its judgment on new case files, if it so chooses.
However, some in UNAKRT are pushing to give some publicity to
the new case file submissions and, if Prosecutor Petit makes
his filing to the pre-Trial Chamber early next week, a press
release may be issued soon thereafter. Such an announcement,
even if vaguely worded, would highlight that co-prosecutor
Chea Leang disagreed with the new case submissions.

5. (C) Some in the NGO community may choose to highlight
co-investigating prosecutor Chea Leang's refusal to support
the new cases as evidence of outside political influence.
Open Society Justice Institute's (OSJI) Heather Ryan told
Pol/Ec Chief November 28 that, if there is an ECCC press
release on this topic, the OSJI would then place an op-ed
opinion piece alleging that there was indeed outside
political influence brought to bear and that the Cambodian
co-prosecutor was explicitly told not to agree to the new
cases so as to protect Cambodia's peace and stability. Ryan
said that OSJI was still considering the timing of this move,
which would be based in part on whether there was an ECCC
press release.

Smooth Going for the Current Five Cases
---------------------------------------

6. (C) The Pre-Trial Chamber is set to rule December 5 on
prosecuting Tuol Sleng (S-21) torture prison head Kaing Guek

Eav for crimes against humanity based on a theory of "joint
criminal enterprise." Application of this theory to Duch's
trial, to start in February 2009, will aid prosecution of the
four other Khmer Rouge leaders detained on a raft of charges,
including genocide. The ruling will likely kick the can down
the road on substance, according to sources, but give
prosecutors room to make their fullest case. The PTC is
reportedly conscious of its jurisdictional boundaries and
does not want to pre-empt the trial chamber's rulings on such
a fundamentally important topic as "joint criminal
enterprise", a controversial theory of law, but one which
would tie together the four Khmer Rouge leaders' joint
culpability for up to two million deaths during the 1975-1979
Pol Pot era.
RODLEY

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