VZCZCXRO2297
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0161/01 0301059
ZNR UUUUU ZZH
O 301059Z JAN 07
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7940
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUEHRL/AMEMBASSY BERLIN PRIORITY 0148
RUEHBY/AMEMBASSY CANBERRA PRIORITY 2261
RUEHO/AMEMBASSY LONDON PRIORITY 0398
RUEHOT/AMEMBASSY OTTAWA PRIORITY 0539
RUEHFR/AMEMBASSY PARIS PRIORITY 0559
RUEHKO/AMEMBASSY TOKYO PRIORITY 3127
RUCNDT/USMISSION USUN NEW YORK PRIORITY 2211

UNCLAS SECTION 01 OF 02 PHNOM PENH 000161 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EAP/MLS, DRL, S/WCI 
 
E.O. 12958: N/A 
TAGS: PREL PHUM KJUS CB
SUBJECT: ECCC LIMPS ON; RULES COMMITTEE TO MEET AGAIN IN 
MARCH 
 
REF: PHNOM PENH 103 
 
¶1.  (SBU)  Summary.  On January 26, the Review Committee 
ended its second session debating the draft internal rules 
and procedures of the Extraordinary Chambers in the Courts of 
Cambodia (ECCC).  The press release noted that progress was 
achieved but there remain several issues where agreement 
between the international and Cambodian judges could not be 
reached.  Observers registered concern over continued RGC 
influence over the Cambodian judges, largely driven by 
concern over the possible number of indictees.  Resource and 
funding shortfalls continue to be highlighted by ECCC staff. 
Another Review Committee meeting reportedly will be scheduled 
in March; the earliest a plenary can take place is May.  End 
Summary. 
 
Progress, But No Agreement on Rules 
----------------------------------- 
 
¶2.  (SBU)  The two-week session of the ECCC's Review 
Committee ended on January 26 with no agreement yet on the 
100-plus rules and internal procedures for the operation of 
the ECCC.  The international and Cambodian judges made 
progress in narrowing the number of issues separating the two 
sides, but there remain "several major issues" to resolve, 
according to the ECCC's press release, before the Committee 
will schedule another full plenary of the judges to finalize 
and vote on the rules.  Towards the end of the first week's 
discussions, some ECCC staff worried that there was little 
sign of compromise from the Cambodian side, and that the 
talks might end in failure.  As a result, the Open Society 
Justice Initiative (OSJI) supported a January 19-21 visit to 
Cambodia by David Scheffer, who weighed in with the RGC on 
the importance of adhering to the UN/RGC agreement and the 
principles of ensuring a fair and transparent judicial 
process that would meet international standards (reftel). 
 
¶3.  (SBU)  The second week's session went more smoothly, 
according to one of the international judges, who indicated 
that Cambodian co-investigating judge You Bunleng and Mong 
Monichariya of the Supreme Chambers led much of the 
discussion for the Cambodian side.  Both are considered by 
ECCC judges and staff as voices of competence and reason, in 
stark contrast to Kong Srim and Sin Rith -- the two judges 
who reportedly derailed the November plenary session, along 
with Cambodian Bar Association president Ky Tech.  ECCC 
sources and observers suggest that You Bunleng and Mong 
Monichariya's renewed status as interlocutors for the 
Cambodian side was due to Scheffer's intervention and RGC 
recognition that the international judges were losing 
patience with Kong Srim, Sin Rith, and Ky Tech.  During the 
second week, the Cambodian side proposed that they negotiate 
with Cambodian Bar Association head Ky Tech on behalf of the 
Review Committee and seek resolution of the various 
outstanding issues on defense counsel and the ECCC public 
defender's office under Rupert Skilbeck. 
 
¶4.  (SBU)  Despite a more positive atmosphere for much of the 
second week, the January 25 session reportedly ended badly, 
prompting a Scheffer phone call to the RGC counseling reason 
and compromise.  The final day did not produce any 
breakthroughs, but both sides agreed to continue the 
discussions in March.  The press statement released by the 
ECCC noted that progress had been made during the two weeks 
of discussions, and the differences between the international 
and Cambodian sides narrowed significantly.  ECCC sources 
confirmed that the earliest a plenary could take place would 
be in May; the RGC indicated that the April commune council 
elections and new year's holiday during the month would 
preclude Cambodian participation until May. 
 
¶5.  (SBU)  Outstanding issues surround the operation of the 
defense office within the ECCC and participation of foreign 
defense counsel.  The two sides reportedly agreed that 
foreign defense counsel could appear before the court, but 
there remain questions regarding how that would take place. 
Skilbeck reportedly is concerned that the international 
judges are compromising too much on key issues pertaining to 
defense matters without consultation with him; Skilbeck was 
not present at any of the sessions during the two weeks of 
meetings, and none of the judges met with him.  Post 
 
PHNOM PENH 00000161  002 OF 002 
 
 
understands that the proposed victims unit has not yet been 
covered in detail, and more work remains on this important 
issue.  How international investigators would operate under 
Cambodian law is another outstanding issue, as foreign 
investigators have no authority to direct the judicial police 
and their investigative work carries no weight in a Cambodian 
court.  ECCC sources note that the Cambodian side has been 
tasked with developing a paper covering their understanding 
of what was agreed upon over the two week session, and the 
Cambodian judges were also charged with defining how 
international defense counsel would participate in the 
courtroom; the issue of how international defense lawyers 
would be disciplined remains an open question. 
 
Comment 
------- 
 
¶6.  (SBU)  Following the conclusion of the Committee's latest 
session, the atmosphere among observers and ECCC staff has 
been similar to that at the end of the November plenary 
session.  Some progress was made and the differences 
narrowed, but there remain concerns over the level of 
government influence over the Cambodian judges.  ECCC 
administrative head Sean Vissoth, spoke openly during the two 
weeks of the possibility that some international staff may 
resign -- and we understand that Vissoth was admonished for 
his comments.  Vissoth, however, was not the only one raising 
the question, and there was debate among our sources 
regarding the legal interpretation of the "escape clause" in 
the UN/RGC agreement that would permit the UN to terminate 
its support for the ECCC.  Some ECCC staff are reported to be 
quietly documenting instances where the RGC is perceived to 
have influenced a decision by the Cambodian judges.  The good 
news is that the Review Committee will continue its 
deliberations, and at least one of the international judges 
told us she was satisfied with the progress that was made. 
No one has any illusions, however, that it's going to be 
smooth sailing from now on.  End Comment. 
MUSSOMELI