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Cablegate: Cambodia's Eccc Stumbles and Stalls

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DE RUEHPF #2095/01 3321104
ZNR UUUUU ZZH
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FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7646
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUEHRL/AMEMBASSY BERLIN PRIORITY 0141
RUEHBY/AMEMBASSY CANBERRA PRIORITY 2246
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RUEHFR/AMEMBASSY PARIS PRIORITY 0551
RUEHKO/AMEMBASSY TOKYO PRIORITY 3106
RUCNDT/USMISSION USUN NEW YORK PRIORITY 2200

UNCLAS SECTION 01 OF 02 PHNOM PENH 002095

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E.O. 12958: N/A
TAGS: PHUM KJUS CB
SUBJECT: CAMBODIA'S ECCC STUMBLES AND STALLS


1. (U) Summary. During the ECCC judges' plenary session
from November 20-25, international and Cambodian judges were
sharply divided over issues concerning the primacy of
Cambodian law versus international law. News about the
impasse leaked out and appeared on the Internet. Running
parallel to the plenary session was the Cambodian Bar
Association's announcement to members that the ECCC draft
rules were illegal and the upcoming International Bar
Association training for defense attorneys (sponsored by the
ECCC Defender's Office) was also illegal; the IBA canceled
the scheduled training and called the CBA's actions
"disturbing." The plenary ended with both sides
acknowledging that approval of the rules within a one-week
timeframe was overly optimistic, and another plenary will be
held at an unspecified date in the future. In the meantime,
an expanded rules committee will attempt to bridge the
differences. End Summary.

Plenary Session Ends Without Results
------------------------------------

2. (SBU) The Extraordinary Chambers in the Courts of
Cambodia (ECCC) convened international and Cambodian judges
from November 20-25 to discuss and finalize the ECCC's draft
internal rules and procedures that had been distributed in
early November for internal as well as public comment. In
the week leading up to the plenary, international
organizations and Cambodian civil society were furiously
working on submissions to the Tribunal in advance of the
plenary session. At the end of the first day, one judge
reported to us that the session had been "disappointing,"
noting that an earlier decision in July regarding who would
vote on the rules was once again debated. By November 22,
ECCC officials and observers reported a rising schism between
the international judges and their Cambodian counterparts
regarding the application of international or Cambodian law.
International judges insisted that there were many areas
where the ECCC would need to adhere to international law in
order to meet international legal standards. The Cambodian
judges reportedly countered that Cambodian law should have
primacy given the court's placement within the Cambodian
legal system. Discussions reached an impasse late on the
22nd, with the international judges reportedly agreeing on a
joint letter to the Cambodian side saying that if the
Cambodian judges would not agree to international standards,
the UN and the international community should consider
withdrawing support. The contents of the letter, which was
not to be made public, were leaked and have appeared on at
least one legal blog site.

3. (SBU) The remainder of the week did not result in any
breakthroughs, and no date was set for the next plenary,
although January as well as February 2007 were proposed. The
judges agreed on an expanded version of the drafting
committee to try and resolve outstanding issues in the
interim. The committee reportedly includes Prak Kimsan, Mong
Monichariya, You Bun Long, Kong Srim, and Sin Rith. For the
international judges, it includes Marcel Lemonde, Sylvia
Cartwright, Claudia Fenz, and Agnieszka Klonowiecka-Milart.
The ECCC cancelled a scheduled joint press conference for
Saturday, November 25; a joint press statement was released
that acknowledged the challenge of approving 82 pages of
rules encompassing all aspects of the ECCC's work in such a
short period of time.

4. (SBU) The Embassy heard from several sources throughout
the week regarding the growing division between the
international and Cambodian judges, as well as the alleged
letter. One source noted the one-week period for agreeing on
the ECCC rules and procedures was too optimistic, and the
outcome more disappointing as a result. The July plenary
session and training program introducing the Cambodian and
international judges had been a great success and a good
working rapport established at the time; however, the reality
of bridging the educational and experience gap between two
sides is now apparent and will need to be worked through.
Separately, ECCC spokesperson Peter Foster allegedly told one
NGO that the Cambodian judges did not have adequate time to
sort through the rules and simply fell back on a unified
position of defending Cambodian legal sovereignty.
Similarly, another international observer offered that the
Cambodian judges were ill prepared to engage in a legal
debate with their international counterparts on the question

PHNOM PENH 00002095 002 OF 002


of when to apply international law versus Cambodian law, and
therefore argued in favor of Cambodian law as a fail-safe
strategy. One Japanese Embassy official applauded the
Cambodian side for standing up to the international side and
making a spirited case for adherence to Cambodian law.

5. (SBU) Another school of thought holds that the Cambodian
judges responded to political pressure to block forward
progress as the Prosecutor's office had indicated it was
prepared to issue arrest warrants and start to pass cases to
the investigating judge in December. We have heard from one
source within the ECCC that even the optimists among the
internationals working on the ECCC have sobered to the
political realities of Cambodia, and question if the RGC has
the political will to see through the process. Press reports
on November 28 indicate that former Khmer Rouge soldiers and
their families have shrugged their shoulders at the lack of
progress over the past week, and see it as an encouraging
indication that the court will be unable to fulfill its
mandate.

Meanwhile, CBA Gets into the Act
-----------Q------------------

6. (U) Also during the week of the plenary, the Cambodian
Bar Association president Ky Tech publicly denounced the
draft ECCC rules aQillegal under Cambodian law, with
particular reference to the Defenders Office led by Rupert
Skilbeck. Ky Tech noted that only Cambodian lawyers were
legally qualified to defend anyone indicted by the ECCC, and
denounced the International Bar Association's scheduled
training for prospective defense attorneys sponsored by
Skilbeck's office. The CBA president said that unspecified
punitive actions would be taken against any Cambodian lawyer
who attended the IBA training; the IBA subsequently cancelled
the training and issued a strongly worded statement
characterizing the CBA's actions as an obstacle to the work
of the ECCC. The Ambassador responded to press inquiries,
noting that the CBA's statements were unhelpful and a cause
for concern. (Note: Skilbeck early on recognized that the
CBA was a force to be reckoned with in establishing a good
relationship between his office and the Cambodian legal
community. He has reached out to the CBA since his arrival
to try and develop a productive relationship and to maintain
good lines of communication. End note.) One NGO source
speculated that Skilbeck's budget of USD 4.8 million was
likely the overriding reason for the CBA's strong interest in
the ECCC, and that Ky Tech is seeking a greater role for the
CBA in order to profit from the ECCC's work.

Comment
-------

7. (SBU) The past week was a difficult one for the ECCC,
and it is one that may not be easy from which to recover.
Most sources agree that if the next plenary session does not
see results, some international personnel are likely to
consider quitting their positions. While we do not want to
give too much credence either to the views of the optimists
or the pessimists as to the reasoning behind the failure of
the judges to reach consensus, the upshot is that the ECCC's
progress has stalled and its early momentum stymied. The
Japanese Ambassador planned to meet on November 23 with DPM
Sok An; we are seeing the Japanese Ambassador and Embassy
staff tomorrow for a bilateral lunch and will seek a readout
of their conversation. We are also contemplating our own
conversation with Sok An, who is the RGC figure most closely
linked to the ECCC. The next Friends of the ECCC meeting
will be December 14. End Comment.
MUSSOMELI

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