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Cablegate: Khmer Rouge Tribunal Achieves Benchmark Of

DE RUEHPF #1203/01 2621023
O 191023Z SEP 07





E.O. 12958: DECL: 09/19/2017


D. USUN 571

Classified By: Ambassador Joseph A. Mussomeli for reasons 1.4 (b, d).

1. (C) SUMMARY: The September 19 announcement of the
detention of Nuon Chea, Khmer Rouge "brother number two",
marks a turning point in the proceedings of the Extraordinary
Chambers in the Courts of Cambodia (ECCC). For the first
time, a senior KR leader stands in the dock of a credible
tribunal. The people of Cambodia are ready to see KR leaders
like Nuon Chea brought to justice. In response,
international jurists have worked with Cambodians in this
hybrid court to bring five initial cases, with more to
follow, to try Khmer Rouge leaders and those most responsible
for the deaths of over 2 million Cambodians during the KR
era. We believe the political environment in Cambodia will
permit such a trial without significant interference. Nuon
Chea's detention builds on the momentum of the cases brought
against five suspects in July (Ref C). The court now has two
detainees, the first being the Tuol Sleng (S-21) torture
center director named "Duch." A first public trial is
expected in early 2008. Management issues (Ref D) and
Cambodian mis-steps remain challenges the donors and ECCC
staff can overcome. The lack of funding and leadership are
pressing issues. The proceedings of the Khmer Rouge Tribunal
have reached a point where the USG is in a position to
consider whether it could provide both funding and
leadership, as well as possibly provide evidence to support
the high-profile prosecutions in the form of formerly
classified USG documents that the court may soon be seeking.

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Overview of the KRT

2. (C) The ECCC case against Nuon Chea is one of five
dossiers the co-investigating prosecutors submitted to
co-investigating judges in July (Ref C), in which the names
of the suspects were kept in confidence. One legal officer
said today the ECCC expects the charges against Nuon Chea to
be announced soon and that he would be detained at the ECCC
with close medical supervision until he could obtain a
lawyer. Although the ECCC earlier detained a suspect, he was
not from among the top KR leadership.

3. (C) In public fora throughout the country, the people of
Cambodia have shown an eagerness to see KR leaders like Nuon
Chea brought to justice. Despite remaining challenges in
Cambodia's imperfect democracy, our assessment is that the
political environment in Cambodia will permit a trial without
significant interference. To date, the Cambodian government
has shown itself to be generally respectful of the work of
the ECCC, and where mis-steps and mis-statements have been
made by Cambodian officials, their effect on the proceedings
have either been minimal or eventually corrected in the face
of strong and principled UN positions. Building on the
momentum of cases brought against the first five suspects in
July, legal staff in the ECCC say they are now laying a sound
legal foundation on which to try the five and will likely
include at least a handful of additional suspects. Key to
this effort is the ongoing, time-consuming interview of the
other detained suspect: Tuol Sleng (S-21) torture center
director Kaing Guek Eav (alias Duch). In this civil law
system, much more of the work is done by the prosecutorial
and investigative judges behind the scenes. However, we
expect a first public trial in early 2008.

The KRT - "Time for Justice"

4. (SBU) A series of public fora held these past months
throughout the country called "Justice and National
Reconciliation", bring up to 70 provincial persons of all
backgrounds (including former mid-ranking Khmer Rouge cadres)
to the ECCC compound outside Phnom Penh to see the operation
of the courts first hand. This group is then invited to
participate with a much larger audience in an open local
forum in their home province where the film "Time for
Justice" explains the genesis of the Khmer Rouge Tribunal and
its mandate to try KR leaders and "those most responsible"
for the crimes of the KR era. In question and answer
sessions that follow, it is clear that the vast majority of
those Cambodians attending want to see justice done - a
typical questioner at a September 7 session attended by

PHNOM PENH 00001203 002 OF 004

Poloff queried why the KRT hadn't done its work sooner. Some
among the audience of 200 wondered why the maximum sentence
for the heinous crimes of the KR was life imprisonment -
answer: Cambodia does not permit the death sentence. Many
were heartened to hear that the ECCC's work would be used as
a model for improving Cambodia's court system across the
board (an explicit message of the fora and film clearly
endorsed by the Cambodian political leadership).

Internal Rules Working To Date

5. (C) According to court staff, the ECCC Internal Rules
that took so long to approve (Ref E) are now achieving the
desired result - particularly helpful have been provisions on
international investigators' interviews of witnesses.
Cambodian Director of the ECCC Sean Visoth has stated that
the nine months it took the international and Cambodian sides
to approve the Internal Rules is actually a period shorter
than in most other international tribunals. Post understands
that Department is currently evaluating the ECCC Internal
Rules for their adherence to international standards. A
notable feature of the Internal Rules besides the obviously
unique hybrid nature of the court is a provision for jointly
re-evaluating and adjusting those rules as the court's
proceedings move forward. According to Heather Ryan
(PROTECT) of the Open Society Justice Institute, one of the
last successes coming out of June negotiations on the
Internal Rules was an expansion of the IR review committee
membership to include some "heavy hitters" on the
international side. With a transparent process to modify
rules in the unique "hybrid" court structure, the system
appears to be adaptable to international standards. ECCC
sources note that the first meeting of the Internal Rules
review committee will be in November.

Cases in Full Swing

6. (C) Since the prosecutors' first introductory
submissions in mid-July (Ref C), the court has been actively
engaged on two fronts: Investigating Judges detained Duch
and ECCC staff have been interviewing him continuously in the
presence of his lawyers while building the cases surrounding
all five KR suspects. The pre-trial chamber of five judges
is reviewing an appeal by Duch's lawyers against his
provisional detention and on September 4 published a request
for amicus curiae briefs - the hearing on the appeal will
likely be in early October. One high-ranking investigating
official told Poloff that "Duch has a lot to say," and that
if given free rein could spend up to two months presenting
his testimony. (COMMENT: We believe all parties are
focusing the inquiry more sharply and less time will be
required. END COMMENT.) Duch's testimony will be the
cornerstone of the prosecution's case regarding a "joint
criminal enterprise" and given the subtlety of this argument,
parties on both sides may want to take more time to be sure
they have covered all lines of inquiry. The other three
suspects in the original submission -- whose identities the
court is holding in confidence -- are: former head of state
Khieu Samphan; Ieng Sary, the KR foreign affairs minister;
and Ieng Thirith (AKA Khieu Thirith), wife of Ieng Sary and a
member of the KR Central Committee. One ECCC official stated
that the court would move to detain more of these suspects in
the near future, probably in a matter of weeks.

More Cases Coming?

7. (C) On a second front, the prosecutors have been
developing further cases over and above the original five
suspects. One court official said in early September that
more introductory submissions on a handful of additional
suspects are expected within the next month or so.

Cambodian Mis-Steps and Mis-Statements: Irritants
--------------------------------------------- ----

8. (C) The hybrid nature of the ECCC derives many benefits
from its location inside Cambodia, according to multiple
observers. Witnesses and direct evidence are more easily
obtained and presented to the court in Cambodia. The people
who most benefit from the just outcome sought would be able
personally to witness justice in action. Cambodian NGOs
believe that a long-overdue process of reconciliation can
more readily begin with the trial in country. The justice
system in Cambodia will benefit from the conduct of this
national trial with international assistance, proponents

PHNOM PENH 00001203 003 OF 004

state. Perhaps too keen to reap the benefits from the ECCC's
work, the RGC appointed ECCC Prosecuting Judge You Bunleng to
be the new President of the Cambodian Appeals Court, counter
to the RGC-UN agreement that all judges appointed would
remain for the duration of the KRT's proceedings. In the end,
the Cambodian government agreed with the UN that Judge You
Bunleng would remain in his position at the ECCC. Observers
generally agree that the RGC tried to move its most trusted
jurist in an awkward, ill-timed attempt to meet the needs of
its national judicial development but failed to properly
weigh the KRT's needs. The immunity of King Father Sihanouk
caused another stir in August-September, but a UN letter to
the Royal Palace made it clear that the ECCC would adhere to
its principles and not engage in theatrics. (COMMENT: These
Cambodian government gaffes show that challenges remain for
the KRT's international jurists in ensuring that Cambodian
counterparts understand the meaning of the international
commitments they have undertaken. END COMMENT.)

ECCC Administration Under Review

9. (C) Both a UNDP audit and review by the UN Office of
Legal Affairs (OLA) (Ref D) reveal significant management
challenges. The UNDP audit outlines allegations of
corruption in the hiring of Cambodian national staff to the
ECCC. (NOTE: Some local observers believe these "ordinary"
Asian hiring practices are separate from and have no bearing
on the standards of justice, but Head of the ECCC Defense
Support Section Rupert Skilbeck points out that defense
lawyers will use these allegations to question the KRT's
overall credibility. END NOTE.) In a September 7 "ECCC Group
of Friends" meeting, ECCC director Sean Visoth noted that
some of the UNDP's audit recommendations were being actively
pursued. An ECCC Human Resources Management report and
procedural manual is expected to be issued on September 19.
The ICTY's Deputy Chief of Victims and Witness Section is
completing her secondment to the KRT to set up the ECCC
Witness and Expert Support Unit. Court management operating
procedures are being completed by a former Acting Head of
Court Management Section in the Special Court of Sierra
Leone. Construction activities in the court area are
commencing, beginning with provision for video feeds from the
pre-trial chambers, which are going to be made public and
should be active in October. (COMMENT: While donors may not
feel that the ECCC has resolved all of its management issues,
many see a way forward, especially if UN headquarters
restructures the management portfolio. END COMMENT.)

Funding is the Critical Issue

10. (C) With current monies available, normal operations of
the ECCC will only be funded through July 2008, on the UN
side and to August 2008, on the Cambodian side, according to
the latest financial report released on September 7 (a copy
of the latest ECCC quarterly report is being pouched to
S/WCI). The original, combined UN/Cambodian cost of the
court was estimated to be $56.3 million, probably well under
the court's needs. The latest assessment places the combined
cost of operating the Khmer Rouge Tribunal at $85.64 million
through the last quarter of 2009. About $65 million of this
sum is to be administered on the UN side. At least $2
million of the new requirement on the Cambodian side is to
support participation by Cambodian civil parties in the case,
a new requirement under the Internal Rules adopted in June.
Funding is urgently needed to meet the needs for witness
protection, which was not adequately programmed in the
initial budget. There also is significantly more need for
translation services for this three-language process (Khmer,
English, French) than was originally budgeted. Sources
connected to some of the initial submissions say that
significant numbers of Khmer-language documents have been
submitted to the Investigating Judges with a simple note
"translation requested." How the Judges can now swiftly
bring an indictment on the original five cases in the absence
of proper translation is a major quandary.

11. (SBU) The ECCC administration - UNAKRT and the Cambodia
- have stated that a UN pledging drive to seek support for
the ECCC is tentatively slated for mid-October. A venue for
the drive has not yet been selected, although some members of
the Friends Group suggest that New York is a likely choice,
given its larger pool of potential donors. Since only $48.34
million of the originally pledged $56.3 million has actually
been committed to date, the UN will be seeking another $36.8
million, including about $29.34 million to cover new or
unanticipated costs.

PHNOM PENH 00001203 004 OF 004

Wanted: Leadership Among Donors

12. (C) In addition to funding, what is needed from the
donors by the ECCC's driven international jurists and
Cambodian counterparts in the court is leadership. The U.S.
could offer such leadership if a decision is taken to support
the ECCC. Should funding or other forms of direct assistance
be made available, then the U.S. could have a more direct say
in the management approach, the overall objectives of the
ECCC, and some of the special requirements such as witness
protection. International Investigating Judge Marcel Lemonde
(PROTECT) told us recently that in his thirty years as a
judge under the same civil law procedures used in the ECCC,
he had always upheld the rule of law and was not about to
change now. He would not want to leave as his legacy
anything other than respected international trial
proceedings. If he did not think the Khmer Rouge tribunal
was capable of achieving that goal, he would not feel
compelled to spend one more day in the ECCC. But, given that
the process was moving forward so well and so quickly, it was
imperative that the international donor appeal also succeed
in order to support the justice process in the Khmer Rouge
Tribunal. Judge Lemonde was looking for U.S. support of a
credible ECCC, just as his staff, the prosecution, and the
defense legal staff have also expressed their desire to see
U.S. support and leadership in this important international
tribunal (Ref A).

Comment: A Time to Decide?

13. (C) With Nuon Chea's detention and, for the first time,
a KR leader being in the dock of the Khmer Rouge Tribunal
(KRT), the view from the ground is that the time is ripe to
take a decision on the capability of the KRT to achieve a
just outcome according to international standards. The court
is actively seized with the most important cases and
reportedly will soon expand its caseload. Although so much
of the activity of the court in this civil law-based criminal
proceeding is done behind the scenes, the court has taken
care to be as transparent as possible so that justice can be
seen to be done. As many international jurists have
remarked, it is impossible to tell if international standards
have truly been met in a tribunal like this until the work of
the KRT is completed and all appeals have been heard and
decided. In the meantime, the Cambodian populace is waiting
for its "Time for Justice", and we are in a position to help
in that genuine effort.

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