VZCZCXRO6088
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0422/01 0741032
ZNY CCCCC ZZH
O 151032Z MAR 07
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8197
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUEHRL/AMEMBASSY BERLIN PRIORITY 0150
RUEHBY/AMEMBASSY CANBERRA PRIORITY 2266
RUEHLO/AMEMBASSY LONDON PRIORITY 0400
RUEHOT/AMEMBASSY OTTAWA PRIORITY 0542
RUEHFR/AMEMBASSY PARIS PRIORITY 0561
RUEHKO/AMEMBASSY TOKYO PRIORITY 3136
RUCNDT/USMISSION USUN NEW YORK PRIORITY 2219

C O N F I D E N T I A L SECTION 01 OF 04 PHNOM PENH 000422 
 
SIPDIS 
 
SIPDIS 
 
STATE FOR EAP/MLS, S/WCI; USUN FOR JAMES DONOVAN 
 
E.O. 12958: DECL: 03/14/2017 
TAGS: PHUM KJUS PREL CB
SUBJECT: THE ECCC AND OSJI 
 
 
Classified By: Pol/Econ Chief Margaret McKean; Reason:  1.4 (b) and (d) 
 
¶1.  (SBU)  Summary.  The Open Society Justice Initiative's 
(OSJI) mid-February press statement highlighting an ongoing 
UNDP audit into the Extraordinary Chambers' hiring practices 
as well as possible corruption and kickback allegations 
continues to be a front burner issue in Cambodia.  While the 
RGC reaction and subsequent OSJI response were simply a war 
of words, more recent information suggests that the RGC is 
planning retaliatory action that may effectively close OSJI's 
office in Phnom Penh.  On March 13, former U.S. Ambassador 
David Scheffer briefed a number of foreign diplomats 
regarding the possible consequences of a closure of the OSJI 
monitoring operation.  UN staff on the ECCC have briefed the 
international judges of the situation; international judges 
currently in Phnom Penh for the internal rules review session 
are concerned, and reportedly have urged the UN OLA to 
respond.  End Summary. 
 
OSJI in the Hot Seat 
-------------------- 
 
¶2.  (C)  On February 14, the OSJI released a press statement 
calling for a thorough investigation of corruption 
allegations against ECCC Cambodian judges and staff.  The 
statement requested that the results of the ongoing UNDP 
audit looking into the allegations be released publicly. 
OSJI said that if the allegations were proven to be true, the 
ECCC should take immediate measures to address 
vulnerabilities.  OSJI has been concerned about such 
allegations, which the organization has heard from different 
sources both inside and outside the ECCC.  The RGC response 
has been predictable:  DPM Sok An issued several blistering 
statements to the press and ECCC Administrator Sean Vissoth 
wrote a strong letter dated February 16 to OSJI's resident 
representative Heather Ryan saying that OSJI would receive no 
further cooperation from his office.  A letter from OSJI's 
Jim Goldston was published in the Cambodia Daily newspaper on 
March 7, outlining OSJI's history of support for the Tribunal 
but emphasizing that as a monitoring organization, OSJI could 
not ignore the allegations.  (Note:  Although Goldston never 
referred to Prime Minister Hun Sen by name in his letter, the 
PM reportedly was enraged over the reference to RGC political 
officials whose commitment to the ECCC has long been in 
doubt.  End Note.)  By bringing them to light early in the 
process, Heather Ryan told us that OSJI hoped that the ECCC 
would heed OSJI's recommendations for dealing with the 
charges.  She argued that other international tribunals had 
experienced similar problems, dealt with them as painful as 
they were, and moved on.  Cambodia should be no different, 
she said.  International ECCC staff publicly declared their 
continued support for OSJI's monitoring work and indicated 
they would meet with OSJI staff.  (Comment:  A subtext to 
this issue was the quiet departure of Heather Ryan's chief 
Cambodian staff member to Singapore following the issuance of 
the February 14 press release; he returned after a couple 
weeks and when OSJI was convinced there would be no threat to 
his security.  End Comment.) 
 
¶3.  (C)  On March 8, the Cambodian judges to the ECCC 
publicly asked the OSJI to exonerate them from any suspicion 
that they were implicated in any corruption allegations, and 
one judge asked for OSJI to retract its earlier statement. 
With the issue coming to a head when the international judges 
arrived in Phnom Penh to continue their deliberations with 
the Cambodian judges over the draft internal rules, many 
observers feared that the OSJI flap might derail the talks. 
However, initial reports of the discussions were promising, 
and sources at the ECCC hoped that the two issues might be 
dealt with separately so that the controversy over OSJI would 
not poison prospects for a successful review committee 
session and agreement on the draft rules finalized before the 
international judges were scheduled to leave on March 16. 
 
¶4.  (C)  On March 10, OSJI received information that the RGC 
might be planning to evict OSJI from Cambodia and end 
cooperation on its monitoring role.  OSJI had received 
reports from ECCC staff that the issue had moved into the 
political realm for the government, and the PM reportedly had 
agreed that the office could be closed.  DPM Sok An was 
considering the timing of any action, and OSJI believed that 
the RGC planned to wait until after the review committee's 
work was done before moving ahead with any plan.  There was 
 
PHNOM PENH 00000422  002 OF 004 
 
 
also talk, reportedly, that Heather Ryan's visa might be 
canceled so that she would have to leave the country.  At 
this stage, the information OSJI had received was perceived 
to be sketchy, and it was not clear that the RGC had made any 
firm decisions.  OSJI did not want to alarm donors or the 
judges for fear of ruining the still-positive negotiations. 
 
David Scheffer Returns to Cambodia 
---------------------------------- 
 
¶5.  (C)  On March 11, former Ambassador at large for War 
Crimes David Scheffer met with Sean Vissoth, and Vissoth 
confirmed for Scheffer that he (Vissoth) had been instructed 
by DPM Sok An to construct a chronology of the OSJI affair 
that would be used as part of the government's plan to shut 
down the office.  Vissoth said that the order had been given 
at a recent wedding ceremony where the PM and other senior 
officials had discussed the matter.  Vissoth had no firm 
deadline, and told Scheffer that he did not want to carry out 
the order.  He requested that Scheffer alert the U.S. Embassy 
and the Ambassador so that a pre-emptive intervention with 
DPM Sok An might be made to turn off the RGC's plan.  On 
March 12, Scheffer met with the Ambassador and Pol/Econ Chief 
and outlined what Vissoth had said.  The Ambassador offered 
to host a briefing by Scheffer for other diplomats so that 
they could factor the information into their own meetings. 
Scheffer said his key concern was that OSJI's departure would 
almost certainly be interpreted by the UN legal office as a 
breach of the UN/RGC agreement (Article 12, subparagraph 2). 
He wondered if the RGC fully understood the implications of 
closing down the only international monitoring body. 
 
¶6.  (C)  Scheffer also made clear that he personally believed 
OSJI had made a mistake in their handling of the UNDP audit 
by going public so quickly.  He noted that his understanding 
was that OSJI believed the matter was heading for the 
international wire services and that the organization wanted 
to have a press statement ready to issue in conjunction with 
the news going public.  Unfortunately, the OSJI press release 
outpaced any other public mention of the audit, and therefore 
OSJI became the organization that exposed the story. 
Scheffer noted that the RGC interpreted this result as "bad 
faith" on the part of OSJI since OSJI had not first sought a 
meeting with RGC officials to express concern about 
corruption. 
 
¶7.  (C)  On March 13, Scheffer and the Ambassador met with 
representatives of the French, Japanese, British, German, 
Canadian, and Australian embassies and Scheffer provided them 
with a briefing on the OSJI issue, as well as an update of 
the discussions on the internal rules.  On the former 
subject, Scheffer noted that the senior UN legal staff member 
had informed the international judges of what was happening 
with OSJI; ECCC staff members had heard that the press might 
have gotten wind of the RGC's plan to remove OSJI from the 
country, and the UN legal officer decided that he should 
explain what was happening rather than have the judges read 
it in the press after their departure.  All the international 
judges expressed concern about any action by the RGC to close 
OSJI and believe it might be a violation of the relevant 
portion of the UN/RGC agreement regarding monitoring. 
However, they were split over how to address the situation. 
Judge Marcel Lemonde reportedly wanted to approach the 
problem cautiously for fear of derailing the rules process. 
Others were concerned that if they did not act during their 
time in Cambodia, their leverage with the RGC would be less 
effective later.  The judges asked Michelle Lee to write to 
the UN legal office about the issue to ensure New York was 
aware; we understand the UN legal office is prepared to 
respond but wants to wait until after the rules review 
committee finishes this week so as not to disrupt the work. 
 
 
¶8.  (SBU)  The Ambassador discussed with those at the 
Scheffer briefing the possibility of a joint demarche with 
the RGC.  Missions expressed disappointment over how OSJI has 
conducted itself and precipitated its current problems with 
the RGC, but most also agreed that it would useful for the 
government to understand the possible consequences of its 
actions vis-a-vis the UN/RGC agreement.  The individual 
response by the diplomats at the meeting was expected:  the 
French and Japanese Ambassadors, though in the country, did 
not come but sent lower officials; neither offered any 
 
PHNOM PENH 00000422  003 OF 004 
 
 
comments nor signs of support for joint action.  The UK, 
German, and Canadian reps said they would be willing, but 
thought that the absence of any French and Japanese 
involvement (as co-chairs of the Friends of the ECCC donor 
group) meant any demarche would not be taken seriously by the 
RGC.  The Australian DCM wanted to consult with Canberra, but 
noted that his Ambassador had farewell calls the following 
day with the PM and DPM Sok An, and would raise the issue. 
In the meantime, David Scheffer offered to seek assurances 
from OSJI/New York that future disclosures of information 
potentially damaging to the ECCC would be provided to the 
court with adequate notice and advance consultation before 
going to press.  (Note:  Goldston emailed Scheffer a note 
along the requested lines on March 14; we distributed the 
note to the donors.  End Note.) 
 
But What About Those Allegations? 
--------------------------------- 
 
¶9.  (C)  In the midst of the continuing stream of press 
articles about OSJI and attention to the review committee's 
progress and prospects for success, the allegations over 
corruption and kickbacks have been nearly forgotten.  UN 
Human Rights Office director Margo Picken noted that the RGC 
plays these issues very skillfully and the OSJI matter 
follows a familiar pattern.  Instead of addressing the 
accusations of government shortcomings, the government 
sidesteps the real issue and heaps blame upon the 
organization/individual highlighting the problem.  Her office 
and its Special Rapporteur have been on the receiving end of 
the government's ire, so are sympathetic to OSJI's 
predicament. 
 
¶10.  (C)  With respect to the allegations, we have heard (but 
cannot confirm) that the UNDP audit has been completed and 
recommended that an investigation be done as the next step. 
If true, this would not necessarily mean that the audit 
confirmed corruption had occurred at the ECCC; rather, it 
would mean that there was sufficient information uncovered to 
warrant further investigation.  One senior ECCC staff member 
has told us that there exists a videotape of an ECCC official 
admitting that the kickback system exists at the court. 
Sources familiar with the court and the allegations suggest 
that an investigation team skilled at dealing with such 
issues would likely be able to develop a case.  One Cambodian 
staff member who claims to be subjected to the system 
reportedly has thanked ECCC international staff for bringing 
the matter to OSJI and the public's attention, so that 
hopefully something may be done to stop the practice. 
(Comment:  Kickbacks are common in the Cambodian public 
sector; allegations that kickbacks may be occurring at the 
court surprised no one.  We understand that some ECCC 
international staff members are well aware that the practice 
exists because their Cambodian colleagues have told them; 
however, Cambodians are very reluctant to file complaints or 
publicly acknowledge the existence of corrupt practices.  No 
whistleblower culture exists, and people have legitimate 
fears when it comes to making public information that could 
be embarrassing to senior officials.  End Comment.) 
 
Comment 
------- 
 
¶11.  (C)  There are interesting aspects to this problem that 
warrant mention.  First, it is notable that Sean Vissoth took 
a very proactive position on behalf of OSJI on this matter, 
informing us about the RGC plan as well as urging that the 
international community weigh in before the government takes 
steps that would not be easily corrected.  On the allegations 
themselves, concerned ECCC staff and OSJI believe that the 
issue about corruption should be addressed; otherwise, 
defense counsel may raise it at the outset of the trials in 
conjunction with an opening argument challenging the 
legitimacy of the court and the competence/integrity of the 
Cambodian judges.  The head of the ECCC's defense office, 
Rupert Skilbeck, has allowed that such a tactic is a 
possibility.  Finally, the government's (over)reaction to the 
OSJI press release reveals again RGC officials' unease with a 
high-profile judicial process designed to limit political 
influence.  While OSJI could have handled this matter better 
-- especially by anticipating that PM Hun Sen would take 
Goldston's letter very personally -- RGC sensitivities cannot 
be allowed to derail what must be a non-political tribunal. 
 
PHNOM PENH 00000422  004 OF 004 
 
 
It is very difficult for the RGC to relinquish control over a 
process where news cameras recording excerpts of the trial 
proceedings may be beaming testimony all over the globe. 
 
¶12.  (SBU)  Comment continued:  It is still unclear whether 
the international and Cambodian judges will be able to 
finalize the rules before the March 16 deadline, but reports 
for the last two days have been promising.  While this 
question is more significant as a measure of the court's 
ability to stand up a credible system, we fear it is 
overshadowed at the moment in the, at times very personal, 
dispute over OSJI.  End Comment. 
MUSSOMELI