VZCZCXRO0036
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #2095/01 3321104
ZNR UUUUU ZZH
O 281104Z NOV 06
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
RUEHOT/AMEMBASSY OTTAWA PRIORITY 0532
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 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EAP/MLS, S/WCI, DRL 
 
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