VZCZCXYZ0004
OO RUEHWEB

DE RUEHPF #0077/01 0171012
ZNR UUUUU ZZH
O 171012Z JAN 07
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7852
INFO RUEHRL/AMEMBASSY BERLIN IMMEDIATE 0143
RUEHOT/AMEMBASSY OTTAWA IMMEDIATE 0534
RUEHFR/AMEMBASSY PARIS IMMEDIATE 0554
RUEHKO/AMEMBASSY TOKYO IMMEDIATE 3122
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 2206

UNCLAS PHNOM PENH 000077 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EAP/MLS AND S/WCI; USUN FOR JIM DONOVAN 
 
E.O. 12958: N/A 
TAGS: PHUM KJUS CB
SUBJECT: UPDATE ON THE ECCC; DAVID SCHEFFER COMING TO 
CAMBODIA 
 
REF: USUN NY 16 
 
¶1.  (SBU)  Summary.  The Open Society's Justice Initiative 
(OSJI) has requested and will fund former Ambassador David 
Scheffer to visit Cambodia from January 19-21 to intervene 
with senior RGC officials on the future of the Extraordinary 
Chambers in the Courts of Cambodia (ECCC).  Recent OSJI 
discussions with members of the ECCC, both international and 
Cambodian, indicate a significant difference on views as to 
how long the review process for internal rules should take, 
with the international judges committed to resolving most, if 
not all, the rules and procedures by month's end so that a 
March plenary of all the judges can be scheduled.  The 
Cambodians, according to OSJI sources, foresee this process 
unfolding over the course of weeks and even months, with 
additional rounds of discussion possible.  ECCC staff are 
concerned that the international jurists may pull out if the 
two sides cannot resolve most differences in short order. 
Total outstanding issues have narrowed to approximately a 
dozen; there are five substantive points of contention that 
affect the independence and legitimacy of the ECCC.  OSJI 
reported that the decision to bring David Scheffer came at 
the behest of some ECCC staff; Scheffer has agreed to come. 
End Summary. 
 
ECCC's Review Committee Begins to Work 
-------------------------------------- 
 
¶2.  (SBU)  On January 16, Pol/Econ Chief met with Heather 
Ryan, OSJI's resident Khmer Rouge Tribunal monitor, and 
Tracey Gurd, an OSJI legal officer visiting from New York. 
Ryan related that recent discussions with ECCC staff 
indicated concerns on the international side regarding the 
review committee's prospects for success at the conclusion of 
their current session, which began on January 16 and is 
scheduled to conclude on January 26.  ECCC sources informed 
Ryan that their conversations with Cambodian counterparts 
suggested that the Cambodian judges had met prior to the 
beginning of the session, and had reportedly become even more 
entrenched in their position going into the two weeks of 
meetings.  In addition, said Ryan, OSJI's own soundings among 
the Cambodian judges indicated that the Cambodian side views 
the two-week review committee session as just the beginning 
of what could be a longer process of negotiation and 
discussion of the rules -- one that could last weeks or even 
months.  The international judges, continued Ryan, want to 
resolve the differences surrounding the rules during the 
two-week session, or come close enough that both sides are 
confident that a third plenary session in March will be 
successful and the rules agreed upon at that time. 
 
¶3.  (SBU)  Ryan was aware that the Group of Interested States 
(GIS) had met in New York (reftel).  She wondered if the 
donors were pushing the Cambodian government and delivering 
messages of concern.  Pol/Econ Chief confirmed that key 
missions were privately conveying strong messages to senior 
RGC officials.  Ryan noted that ECCC staff had asked OSJI to 
invite David Scheffer, former US Ambassador-at-Large for War 
Crimes, to visit Cambodia before the review committee's 
session ended to discuss the ECCC's future with DPM Sok An 
and ensure the two-week session does not end in failure. 
Ryan explained that concerned ECCC staff considered Scheffer 
as the best choice to intervene, as he is viewed (by the RGC) 
as a friend of Cambodia for his work in restarting the 
negotiations between the RGC and the UN over formation of the 
Tribunal.  OSJI/New York agreed to fund Scheffer's travel, 
and the latter is scheduled to arrive on January 19 and 
depart on January 21; Ryan noted that there is not yet 
confirmation that Scheffer will be able to meet with DPM Sok 
An. 
 
Sticking Points 
--------------- 
 
¶4.  (SBU)  Ryan mentioned that her discussions with the 
ECCC's Marcel Lemonde (international co-investigating judge 
and member of the drafting committee for the rules as well as 
the review committee) indicate that there remain about a 
dozen or so points of difference between the international 
and Cambodian sides regarding rules and procedures.  Roughly 
half of those are potential deal breakers, noted Ryan, as 
they impinge on the independence and integrity of the court. 
The Cambodian side does not wish to address the role of the 
defense counsel office in the rules; rather, they proposed 
that all issues pertaining to the defense be decided by the 
 
Cambodian Bar Association.  Given the history of political 
interference in the Bar, this is an impossible proposition, 
noted Ryan.  There remains disagreement over the 
participation by international defense counsel, said Ryan, 
which would call into question the fairness of the process if 
Cambodian defendants only had Cambodian lawyers in the 
courtroom with them (i.e., the equality of arms issue). 
According to Ryan's sources at the ECCC, the Cambodian 
proposals suggest that the Cambodian side is seeking control 
over the entire process or a way to render it meaningless. 
For instance, the Cambodian judges have proposed that if 
there is disagreement over whether or not an investigation 
will result in an indictment, that the person under 
investigation may appeal to the Pre-Trial Chamber.  If there 
is no supermajority, the case will be dropped.  (Note:  Under 
the RGC/UN Agreement, such cases would go forward to trial; 
convictions, however, would require a supermajority.  End 
Note.)  Ryan noted that under such a system, the RGC would 
have total veto power over each indictment. 
 
¶5.  (SBU)  The Cambodians had also requested that Cambodian 
law relating to defamation also be applied to the court's 
proceedings.  They have reportedly changed their proposal to 
perjury, said Ryan, but want perjury cases to be referred to 
the Cambodian court system for a determination rather than be 
examined by the ECCC.  Ryan said that the Cambodian courts 
would be unlikely arbiters of such cases in a politically 
nonbiased way, and would serve as a deterrent for witness 
testimony.  The Cambodians continue to insist on in absentia 
trials, despite the international judges argument that 
absentia trials do not meet international standards and their 
use has been rejected by other international tribunals.  One 
new area where the Cambodian judges have departed from the 
draft rules concerns the participation by civil parties. 
Although permitted under Cambodian law, the Cambodian judges 
recently indicated that they do not favor victims coming 
forward as civil parties.  Ryan said that there is 
speculation at the ECCC that this change of heart reflects 
RGC fear of encouraging people to submit new evidence. 
(Note:  The Japanese Embassy was particularly unhappy over 
this provision as well, although for financial and 
administrative reasons.  Their influence with the RGC may 
also be a factor in the Cambodian decision to question the 
rules surrounding victims and witnesses as civil parties. 
End Note.) 
 
Japan:  Still Cautiously Optimistic 
----------------------------------- 
 
¶6.  (SBU)  Pol/Econ Chief conferred on January 17 with the 
Japanese Embassy to see if they had heard similar rumblings. 
In characteristic style, the Japanese Counselor handling the 
KRT, Yoshi Kodama, said he was unaware of any problems, 
although he did allow that the UN Administrative Office (and 
we can only assume this is Sean Vissoth) is preparing a 
compromise document on legal matters to provide to both sides 
for consideration during the review committee meetings. 
Kodama noted that the Japanese Ambassador would be meeting 
with DPM Sok An next week and the progress of the review 
committee would likely come up in the discussion. 
 
Comment 
------- 
 
¶7.  (SBU)  The first day's discussions on January 16 
reportedly went well, according to one international judge, 
who allowed that was likely because the two sides only 
discussed the "easy stuff."   At this stage, we can only wait 
and see how the discussions between the international and 
Cambodian judges develop, and whether there is room for 
compromise.  We plan to see David Scheffer and will provide a 
readout of his discussions in Phnom Penh.  End Comment. 
MUSSOMELI