VZCZCXRO6300
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0826/01 1660945
ZNR UUUUU ZZH
O 150945Z JUN 07
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8579
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 04 PHNOM PENH 000826 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
STATE FOR EAP/MLS, DRL AND S/WCI 
 
E.O. 12958: N/A 
TAGS: PGOV KJUS PHUM CB
SUBJECT: ECCC PASSES INTERNAL RULES 
 
 ¶1.  (SBU)  Summary.  On June 12, the judges of the 
Extraordinary Chambers in the Courts of Cambodia (ECCC) 
approved a set of internal rules governing the court's work. 
While both the national and international sides of the court 
hailed the passage of the rules as a major step forward in 
the court's progress towards the trial phase, some 
international judges and ECCC staff privately have noted that 
there may be further obstacles ahead.  The prosecution plans 
to send recommendations forward soon to the investigating 
judges, and court members believe that a trial could begin in 
early 2008.  The judges also have requested that two of their 
members be placed in Phnom Penh throughout the proceedings. 
Meanwhile, the UNDP audit remains a point of contention as 
donors, UNDP, NGOs and the media continue to debate the 
significance of the allegations of corruption at the court. 
End Summary. 
 
Internal Rules Passed 
--------------------- 
 
¶2.  (U)  At a joint press conference on June 13, 
representatives of the ECCC announced that the judges and 
co-prosecutors had passed the court's internal rules that 
will govern the court's judicial operations over the coming 
years.  While copies of the rules are not yet publicly 
available, the announcement is considered a major step 
forward in moving the process forward.  ECCC staff who 
attended some of the deliberations noted that it was clear 
the Cambodian side was operating under different set of 
instructions than had been the case during the November 2006 
plenary -- the last time all the judges and co-prosecutors 
met to discuss the internal rules.  Another positive step 
were noticeable points of disagreement among the Cambodian 
judges -- not on key issues, where all the Cambodian judges 
held firm -- but on less contentious matters, according to 
ECCC sources. 
 
¶3.  (SBU)  One international judge said that the second 
plenary should have been finished in two days time.  Too much 
time was spent quibbling over translation issues and 
non-substantive points.  The two reserve international 
judges, Claudia Fenz and Martin Karopkin, were not eligible 
to vote so used some of their time to visit a Phnom Penh 
court as well as the Supreme Court, and view the proceedings 
and conduct of court officials.  Karopkin told us that after 
the assurances the international judges had received from 
their Cambodian counterparts regarding the judiciary's strong 
commitment to rule of law and human rights in Cambodia, their 
brief visits indicated otherwise.  They found the reality of 
Cambodia's poor judicial system a challenge to reform and 
Karopkin said he understands why Cambodian civil society is 
skeptical that the ECCC will inspire widespread change in the 
country's broken judiciary.  The U.S. judge nevertheless 
allowed that their brief snapshot was just that -- a snapshot. 
 
¶4.  (SBU)  The ECCC announced that the rules would be 
available within 10 days, but Co-Investigating Judge Marcel 
Lemonde indicated that he would try to ensure they were 
posted earlier (they were not available on the court's 
website as of June 15).  All indications are that the 
agreed-upon rules do not depart significantly from the 
earlier version discussed during the March meeting of the 
expanded drafting committee.  Defense Support Section head 
Rupert Skilbeck issued a separate press release on June 13, 
praising the passage of the rules but indicating that 
"certain rules may not fully comply with international 
standards of fair trial."  Reporters seeking clarification 
from the Defense unit have not received a fuller explanation; 
one of the ECCC judges told us that Skilbeck was likely 
laying the groundwork for possible defense arguments and 
legal objections during the pre-trial stage.  Those ECCC 
members contacted were satisfied that the rules would allow 
for fair trials; otherwise, they would not have agreed to 
them.  However, some people allowed that the judges could not 
foresee every potential abuse or loophole, but that a good 
faith effort to not waver on principle was made. 
 
¶5.  (SBU)  Two additional developments took place during the 
plenary.  One was the preview and tour for the judges of the 
room designated for the pre-trial chamber as well as further 
discussion on the configuration of the trial courtroom.  The 
pre-trial chamber still requires major work, according to 
some judges, who were hoping that the chamber would be near 
completion by the time of the plenary.  With the 
co-prosecutors prepared to begin moving case files to the 
co-investigating judges, it is anticipated that the pre-trial 
chamber will begin its work soon.  The judges are reportedly 
unhappy that the main trial chamber (an auditorium) will 
retain its stage and the judges will be seated there.  The 
judges had earlier objected to being placed on the stage and 
 
PHNOM PENH 00000826  002 OF 004 
 
 
had wanted it removed.  It also remains unclear who will sit 
where, and whether the defense counsel and the defendant(s) 
will be seated below the prosecutors and judges.  For 
appearances sake, the international judges had wanted the 
prosecutors and defense counsel to receive equal treatment. 
This remains a point of discussion, and one that some 
international judges fear they may lose.  Similarly, there 
are questions over the robes to be worn by the judges, which 
reportedly are the same as those of the Cambodian Supreme 
Court judges.  One judge commented that while regal in 
appearance, he is worried about the symbolism and how that 
might be interpreted by the Cambodian public.  The 
prosecutors are also to wear the same robes as the judges, 
which also is worrisome to those international judges 
concerned about the symbolism -- they had wanted the judges, 
prosecutors and defense to all be considered separate 
entities.  All sources agree that the dress and the 
stage/configuration of the court issues are not substantive 
in nature, but there are concerns that some of these 
decisions could have a negative impact on the Cambodian 
public. 
 
¶6.  (SBU)  A second issue relates to the notion of having 
resident judges on the international and national side in 
Phnom Penh.  During the last year, many of the international 
judges have been unhappy with what they believe was a lack of 
information from the ECCC administration.  To improve 
information flow during the coming months, the judges 
discussed and voted to propose to the ECCC administration 
that one international judge (Japanese judge Motoo Noguchi) 
and one Cambodian judge (Kong Srim) begin full-time work at 
the ECCC assisting on judicial matters (although it remains 
unclear how much authority they would have to speak on behalf 
of the other judges).  There is nothing in the current ECCC 
budget that would cover these costs so it remains a proposal 
to the administration. 
 
Donor Briefing and UNDP Audit 
----------------------------- 
 
¶7.  (SBU)  UNDP representative Douglas Gardner briefed 
interested donors June 13 on the UN's plans to handle 
continued press and NGO pressure to release an internal audit 
related to the ECCC.  Gardner said the audit had not found 
evidence to conclusively support allegations that Cambodian 
staff of the tribunal were forced to pay kickbacks.  However, 
it had revealed poor human resource practises which created 
the potential, or the perception, of wrongdoing.  Problems 
included: staff hired without meeting job requirements, 
inadequate documentation of applicant pools or hiring 
criteria, lack of performance evaluations, and ineffective 
monitoring of salary scales.  In short, flaws at the 
entry-point meant there was neither sufficient transparency 
nor the right people hired.  Therefore, it was not surprising 
if there were weaknesses, for example in court management. 
 
 
¶8.   (SBU)  Donors (most notably Canada and Australia) 
strongly objected to UNDP's plan to release "unilaterally" a 
summary of the audit immediately after the successful plenary 
session.  The Canadian Ambassador said some of the (Malaysian 
contract) auditors' recommendations, e.g., firing of ECCC 
staff, were "patently ludicrous" and cast into doubt the 
seriousness of the audit.  She also said that publicly 
releasing information on what had been billed as a 
confidential audit would cause the Cambodian side to lose 
 
SIPDIS 
confidence in the UN's intentions -- and that releasing 
something immediately after the hard work of getting to a 
successful plenary was questionable timing.  Other donors 
generally agreed, although the German, UK, and EC 
representatives seemed less sanguine that UNDP could continue 
to avoid NGO and press pressure to answer additional 
questions about the audit.  Donors urged UNDP to work 
constructively with the Cambodian side to seek agreement on 
the remedial steps.  Then, a summary of the audit could be 
presented in the much-more positive context of a joint plan 
to address observed problems.  The DCM noted the importance 
of the ECCC meeting international standards and said human 
resource problems needed to be rectified, but supported a 
"joint" approach, if possible. 
 
¶9.  (SBU)  Gardner described three main remedial steps, and 
expressed the opinion that at least some on the Cambodian 
side supported these steps.  He said UNDP's base position was 
clear: taking a "business as usual" approach was not 
possible, remedial steps were necessary, and UNDP would need 
to be more interventionist in the future.  Remedial steps 
were: 
 
--  Requiring that all contract extensions be reviewed, with 
 
PHNOM PENH 00000826  003.2 OF 004 
 
 
certification that the employee's CV matched the requirements 
of the job description and that the employee was performing 
the job satisfactorily.  As some 131 staff were on short-term 
contracts, with most due to expire in June-Sept, this would 
allow a gradual review of staff and weeding out of those 
unqualified. 
 
--- Requiring appropriate hiring procedures for new recruits: 
including evidence that positions were widely advertised, 
logging all applications, establishing criteria for 
applicants and documenting the process of short-listing, 
interviewing, and selection based on merit. 
 
-- Changing the method for calculating salaries of 
professional-level Cambodian staff.  This would affect 35% of 
the staff, who had been selected into positions where it had 
been agreed in the RGC-UN MOU that they would be paid 50% of 
the wage of international staff.  Currently, these wages were 
set against gross (i.e., pre-tax) international levels.  But, 
as the Cambodians were not being taxed, as per a government 
decision, these wages should be set against the net internal 
level, which would bring them down somewhere between 12% and 
20%. 
 
¶10.  (SBU)  Gardner also shared a draft of the same statement 
with the ECCC judges and staff earlier the same day.  One 
international legal advisor, who had read the audit report 
and who is familiar with the both the deficiencies in the 
hiring practices as well as the allegations of corruption, 
objected to any inclusion of the corruption reference in the 
draft UNDP statement -- which noted that the audit findings 
did not produce evidence of corruption.  He reportedly argued 
that the terms of reference for the auditors did not 
specifically focus on corruption; therefore, the auditors did 
not interview anyone who had asked for a meeting to discuss 
this issue, and some people who had requested to meet with 
the auditing team had been refused interviews.  Rather, the 
team focused exclusively on the hiring problems outlined by 
an earlier auditing team.  The advisor noted that it would be 
misleading to characterize the audit report as having put to 
rest any suspicion regarding kickbacks or other corrupt 
practices at the court, when the team had not investigated 
those allegations.  (Note:  The issue of corruption remains a 
contentious point among some ECCC staff and NGOs, with the 
media continuing to raise questions about the court's 
handling of this matter.  The international judges are aware 
of the controversy but do not believe it is within their 
purview to weigh in.  End Note.) 
 
 
First Case to Move Forward? 
--------------------------- 
 
¶11.  (SBU)  Most observers speculate that the first case file 
to move to the co-investigating judges will be that of the 
head of Tuol Sleng prison -- Khang Khek Ieu (aka Duch), who 
has been under temporary detention for seven years.  The 
Japanese Embassy has told us that they anticipate Duch will 
be the first case as it is one with the greatest amount of 
documentation, witnesses, the suspect has already confessed, 
and it would be easy to bring it to trial.  They also believe 
that by having an "early success," trying Duch would 
immediately raise the international profile of the ECCC and 
help in the GOJ's efforts to lobby other donors for 
additional funds for the court. 
 
Comment 
------- 
 
¶12.  (SBU)  We have heard very positive comments regarding 
Co-Prosecutor Robert Petit during the last week and a half, 
and one judge went so far as to say that if the ECCC succeeds 
in its overall objectives, it will be due in no small part to 
Petit.  The Canadian co-prosecutor has a strategy and 
prosecution plan that he has quietly but adamantly maintained 
he will not allow to be influenced by Cambodian politics. 
Petit relayed this to the Ambassador early on when the 
co-prosecutor began his work; it was reinforced again among 
the international judges during the plenary when discussions 
about possible RGC interference arose.  While everyone is 
pleased that the internal rules debate is behind them (some 
judges worry that translation differences between French, 
English, and Khmer may return to haunt the court), no one is 
predicting smooth sailing ahead.  The next challenge will be 
the reaction, if any, to the initial case(s) forwarded to the 
co-investigating judges.  Nevertheless, our sources indicate 
that once the trial phase begins, there is every expectation 
that the court will take on a life of its own and focus more 
on the law and its application as opposed to some of the 
petty bickering that has characterized this most recent 
 
PHNOM PENH 00000826  004.2 OF 004 
 
 
meeting of judges as well as last year's failed plenary. 
MUSSOMELI