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DE RUEHPF #0103/01 0221059
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FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7871
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUEHRL/AMEMBASSY BERLIN PRIORITY 0145
RUEHBY/AMEMBASSY CANBERRA PRIORITY 2258
RUEHOT/AMEMBASSY OTTAWA PRIORITY 0536
RUEHFR/AMEMBASSY PARIS PRIORITY 0556
RUEHKO/AMEMBASSY TOKYO PRIORITY 3124
RUCNDT/USMISSION USUN NEW YORK PRIORITY 2208

C O N F I D E N T I A L SECTION 01 OF 03 PHNOM PENH 000103 
 
SIPDIS 
 
SIPDIS 
 
STATE FOR EAP/MLS AND S/WCI 
 
E.O. 12958: DECL: 01/22/2016 
TAGS: PREL KJUS PHUM CB
SUBJECT: RGC WORRIED ECCC PROSECUTIONS COULD AFFECT PEACE 
AND SECURITY 
 
REF: PHNOM PENH 77 
 
Classified By: Pol/Econ Chief Margaret B. McKean, Reason:  1.4 (b) and 
(d) 
 
 ¶1.  (C)  Summary.  Former Ambassador David Scheffer's 
January 19-21 consultations in Cambodia with DPM Sok An and 
members of the ECCC staff suggest there is room for possible 
compromise on ongoing discussions over the Extraordinary 
Chambers in the Courts of Cambodia (ECCC) internal rules. 
However, DPM Sok An underscored RGC concerns that the ECCC's 
net of possible indictees may widen too broadly and undermine 
Cambodian peace and stability -- a theme he characterized as 
a "make or break" point for the CPP.  Scheffer and the DPM 
reportedly discussed compromise solutions to each of the 
outstanding issues facing the internal rules debate and ECCC 
Administrator Sean Vissoth reportedly conveyed the DPM's 
discussions with Scheffer to the Cambodian side.  OSJI, 
however, worries that Scheffer may have overstepped his 
mandate as his suggestions to DPM Sok An were his alone, and 
he did not have the authority to speak on behalf of the 
international judges.  End Summary. 
 
Scheffer and Sok An Meet, Discuss ECCC 
-------------------------------------- 
 
¶2.  (C)  During a January 20 meeting, DPM Sok An and former 
ambassador-at-large for War Crimes David Scheffer discussed 
the outstanding issues facing the ECCC review committee's 
discussion about the Tribunal's internal rules.  The meeting 
took place at Sok An's private ranch, where Scheffer had an 
opportunity to meet with the DPM in a relaxed atmosphere.  In 
a January 21 telecon with Pol/Econ Chief, Scheffer said that 
DPM Sok An was "clearly on board" to push for resolution of 
the major issues dividing the international and Cambodian 
judges.  Sok An told Scheffer that the PM had recently given 
public remarks underscoring the RGC's desire to see the top 
former Khmer Rouge officials prosecuted.  Scheffer 
characterized his discussions as good, and that Sok An had 
been agreeable on the issues but with his own perspective. 
The only other person in the meeting was ECCC Administrator 
Sean Vissoth.  Scheffer said that throughout the meeting, Sok 
An highlighted important points of agreement between the DPM 
and Scheffer, urging Vissoth to take detailed notes. 
 
¶3.  (C)  The most important issue for the Cambodian 
government, according to Scheffer, is RGC fear that 
international prosecutor Robert Petit and his staff may 
become too overzealous in their investigative work, expanding 
the number of potential indictees to an unacceptable degree. 
Scheffer said that Sok An's description of his concern on 
this point bordered on paranoia, and Scheffer added that he 
tried to put the DPM's mind at ease.  Both agreed that a 
useful compromise would be to add the language from the 
UN/RGC agreement on the ECCC to the preamble of the internal 
rules, and Scheffer and Sok An reportedly discussed language 
centering on the Tribunal's need to be mindful of the RGC's 
desire to ensure both justice and security in the ECCC's 
work.  DPM Sok An underscored that this is a "make or break" 
point for the RGC.  On the ride back from the DPM's ranch to 
the hotel, Sean Vissoth reiterated the optics surrounding the 
scope of the ECCC's work must be handled correctly to put at 
ease the minds of the CPP Central Committee.  (Comment: 
While much of the discussion centered on "government" 
concerns, it is noteworthy that Vissoth referred to the CPP 
Central Committee.  End Note.) 
 
¶4.  (C)  On the issue of defense counsel, Sok An reportedly 
showed no sympathy for the position of Cambodian Bar 
Association President Ky Tech, who has made a poor impression 
on the international judges during the failed November 
plenary as well as in the first week's interaction with the 
review committee that ended on Friday, January 19.  Ky Tech's 
hard-line stance rejecting the appearance of foreign defense 
counsel before the ECCC, payment of fees, issues of 
reciprocity, and the Cambodian Bar Association's right to 
discipline foreign lawyers and clear their public statements 
in advance reportedly were rejected by Sok An.  However, the 
DPM reportedly did allow that he shares Ky Tech's concern 
that foreign defense counsel could create a circus-like 
atmosphere in the court and that should be avoided.  He also 
reportedly supported Ky Tech's views that defense counsel and 
prosecutors should only issue joint statements outside the 
 
PHNOM PENH 00000103  002 OF 003 
 
 
courtroom; Scheffer acknowledged that this is not possible. 
Scheffer said he pressed Sok An on the issue of defense 
counsel, noting that the participation of foreign counsel had 
always been anticipated and agreed to by the RGC during the 
negotiation process of the ECCC.  Sok An reportedly agreed 
that this could be finessed by inserting the language in the 
ECCC's internal rules, rather than getting an amendment of 
the Cambodian Bar Association's rules.  (Comment:  Sok An had 
assured the international donors repeatedly over the past 
several years that the RGC would seek an amendment of the 
Bar's rules, stressing that this was a technical issue to 
overcome and not a difference on substance.  The Bar's rules 
permit defendants to have foreign lawyers assist them in 
their defense, but specifically prohibit foreign counsel from 
appearing in court on their client's behalf.  It is unclear 
if the ECCC's rules allowing foreign counsel to appear will 
suffice.  Comment continued:  Sok An's position on the role 
of defense counsel is of note, given that the DPM wrote a 
letter to the UN's legal office in early December that was 
highly critical of Defense Office head Rupert Skilbeck, and 
called for the UN and the RGC to reopen negotiations on the 
role of that office --  a request that we understand was 
strongly rejected by UN Legal Counsel Nicholas Michel.  End 
Comment.) 
 
¶5.  (SBU)  Another sticking point centers on in absentia 
trials, which are permitted under Cambodian law but not 
considered good international practice.  The Cambodian judges 
have insisted that in absentia trials be permitted.  Scheffer 
confirmed the Cambodian and international judges on January 
19 agreed that -- provided a client makes an initial 
appearance before the ECCC, defense counsel subsequently may 
represent their clients in the courtroom, and video/audio 
feed can be provided in the detainee's cell to follow the 
proceedings.  The point of disagreement, noted Scheffer, 
appears to no longer be relevant. 
 
¶6.  (SBU)  On the supermajority voting issues and Cambodian 
proposals to undermine the UN/RGC agreement redefining how 
supermajority voting would work, Scheffer said that this was 
a non-starter and could not be walked back.  Scheffer added 
that DPM Sok An was very supportive of reaffirming the 
supermajority rule, but that the DPM offered that he 
understood the Cambodian judges' position that they do want 
to see a runaway court considering an expanded number of 
indictees.  Finally, Scheffer and DPM Sok An discussed the 
victims unit, an added element to the structure and 
administration of the ECCC that some donors and others worry 
will eclipse the budget and resources of the Tribunal.  Sok 
An reportedly noted that the victims unit and their inclusion 
as civil parties in the cases before the ECCC is not an 
advocacy point of the government, but it is allowed under 
Cambodian law and some judges reportedly support the idea. 
Sok An said that it is rather meaningless as the likely 
defendants have no assets to distribute.  Scheffer proposed 
that victims' lawyers could be limited to participation in 
the opening and closing arguments; Sok An was reportedly 
attracted to this proposal. 
 
OSJI's Readout 
-------------- 
 
¶7.  (C)  Pol/Econ Chief met on January 21 with the Open 
Society Justice Initiative's (OSJI) Heather Ryan and Tracey 
Gurd (please protect) to discuss their reaction to Scheffer's 
meetings, as the former Ambassador met with members of the 
ECCC staff as well.  They registered strong concern that 
Scheffer had overstepped the bounds of his mandate and 
jeopardized the status of OSJI's mission as a neutral party 
to the ECCC's work.  Heather Ryan said that OSJI had agreed 
to bring Scheffer to Cambodia at the behest of some ECCC 
staff members (reftel), but that the former ambassador's 
instructions were to urge DPM Sok An to press the Cambodian 
judges to abandon their hard-line positions on the remaining 
issues in favor of compromise, given that the future of the 
ECCC may be on the line. 
 
¶8.  (C)  Moreover, OSJI wanted Scheffer to press Sok An on 
the issue of political interference, and urge that the RGC 
allow the Cambodian judges free rein to make their own 
decisions.  OSJI and other sources are of the opinion that 
some Cambodian judges would likely do a good job minus real 
or perceived political interference, and OSJI had hoped that 
 
PHNOM PENH 00000103  003 OF 003 
 
 
Scheffer could lay down a strong marker with Sok An that the 
RGC should make clear to their judges that they have the 
freedom to exercise their own opinions.  In fact, just the 
opposite seems to have happened, with Scheffer encouraging 
Sok An and Sean Vissoth to play a strong role in the 
decisionmaking of the Cambodian judges.  Ryan also noted that 
the RGC may have misread the meeting and interpreted 
Scheffer's ideas and suggested compromises as having the 
weight of the international judges behind him.  Scheffer did 
not meet with any of the international judges during his time 
in Cambodia.  The RGC may believe they have a tacit 
understanding as to what the international judges will 
accept; the international judges may not agree. 
 
Comment 
------- 
 
¶9.  (C)  OSJI is very concerned that they may have damaged 
their role in ensuring an independent court by supporting 
Scheffer's visit, which has encouraged government 
intervention in the process and underscored for the Cambodian 
judges (if there was any doubt) the importance of DPM Sok 
An's office to the ECCC.  The most important issue raised by 
Sok An centered on the number of indictees that would 
ultimately go to trial before the ECCC, which is not 
surprising given the RGC awarded Sok An's niece (by marriage) 
the key position of co-prosecutor.  While international ECCC 
staff agree that the categories of senior leadership and 
those most responsible will limit the number of indictees 
that go before the court, it is also clear that "list of 
usual suspects" (i.e., those 5-8 people usually named in any 
public forum or academic seminar focused on the Khmer Rouge 
period) may be broadened during the course of the 
investigative phase.  In a country whose judiciary does 
nothing with respect to any politically related case without 
instructions, it is little surprise that the RGC is reticent 
about a legal process that they may not be able to control. 
It is unclear to us how preamble language referring to the 
UN/RGC agreement, however, could be used to forestall an 
indictment if the evidence supports it.  End Comment. 
MUSSOMELI