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C O N F I D E N T I A L SECTION 01 OF 04 PHNOM PENH 001203 
 
SIPDIS 
 
SIPDIS 
 
STATE FOR EAP/MLS, S/WCI, D:KLEE, EAP:CKLEIN, P:SFAGIN 
USUN FOR C. WILSON 
 
E.O. 12958: DECL: 09/19/2017 
TAGS: PHUM KJUS PREL PINR EAID CB
SUBJECT: KHMER ROUGE TRIBUNAL ACHIEVES BENCHMARK OF 
CREDIBILTY WITH NEW ARREST 
 
REF: A. PHNOM PENH 1068 
 
     ¶B. PHNOM PENH 1059 
     ¶C. PHNOM PENH 956 
     ¶D. USUN 571 
     ¶E. PHNOM PENH 826 
 
Classified By: Ambassador Joseph A. Mussomeli for reasons 1.4 (b, d). 
 
¶1.  (C)  SUMMARY:  The September 19 announcement of the 
detention of Nuon Chea, Khmer Rouge "brother number two", 
marks a turning point in the proceedings of the Extraordinary 
Chambers in the Courts of Cambodia (ECCC).  For the first 
time, a senior KR leader stands in the dock of a credible 
tribunal.  The people of Cambodia are ready to see KR leaders 
like Nuon Chea brought to justice.  In response, 
international jurists have worked with Cambodians in this 
hybrid court to bring five initial cases, with more to 
follow, to try Khmer Rouge leaders and those most responsible 
for the deaths of over 2 million Cambodians during the KR 
era.  We believe the political environment in Cambodia will 
permit such a trial without significant interference.  Nuon 
Chea's detention builds on the momentum of the cases brought 
against five suspects in July (Ref C).  The court now has two 
detainees, the first being the Tuol Sleng (S-21) torture 
center director named "Duch."  A first public trial is 
expected in early 2008.  Management issues (Ref D) and 
Cambodian mis-steps remain challenges the donors and ECCC 
staff can overcome.  The lack of funding and leadership are 
pressing issues.  The proceedings of the Khmer Rouge Tribunal 
have reached a point where the USG is in a position to 
consider whether it could provide both funding and 
leadership, as well as possibly provide evidence to support 
the high-profile prosecutions in the form of formerly 
classified USG documents that the court may soon be seeking. 
END SUMMARY. 
 
Overview of the KRT 
------------------- 
 
¶2.  (C)  The ECCC case against Nuon Chea is one of five 
dossiers the co-investigating prosecutors submitted to 
co-investigating judges in July (Ref C), in which the names 
of the suspects were kept in confidence.  One legal officer 
said today the ECCC expects the charges against Nuon Chea to 
be announced soon and that he would be detained at the ECCC 
with close medical supervision until he could obtain a 
lawyer.  Although the ECCC earlier detained a suspect, he was 
not from among the top KR leadership. 
 
¶3.  (C)  In public fora throughout the country, the people of 
Cambodia have shown an eagerness to see KR leaders like Nuon 
Chea brought to justice.  Despite remaining challenges in 
Cambodia's imperfect democracy, our assessment is that the 
political environment in Cambodia will permit a trial without 
significant interference.  To date, the Cambodian government 
has shown itself to be generally respectful of the work of 
the ECCC, and where mis-steps and mis-statements have been 
made by Cambodian officials, their effect on the proceedings 
have either been minimal or eventually corrected in the face 
of strong and principled UN positions.  Building on the 
momentum of cases brought against the first five suspects in 
July, legal staff in the ECCC say they are now laying a sound 
legal foundation on which to try the five and will likely 
include at least a handful of additional suspects.  Key to 
this effort is the ongoing, time-consuming interview of the 
other detained suspect: Tuol Sleng (S-21) torture center 
director Kaing Guek Eav (alias Duch).  In this civil law 
system, much more of the work is done by the prosecutorial 
and investigative judges behind the scenes.  However, we 
expect a first public trial in early 2008. 
 
The KRT - "Time for Justice" 
---------------------------- 
 
¶4.  (SBU)  A series of public fora held these past months 
throughout the country called "Justice and National 
Reconciliation", bring up to 70 provincial persons of all 
backgrounds (including former mid-ranking Khmer Rouge cadres) 
to the ECCC compound outside Phnom Penh to see the operation 
of the courts first hand.  This group is then invited to 
participate with a much larger audience in an open local 
forum in their home province where the film "Time for 
Justice" explains the genesis of the Khmer Rouge Tribunal and 
its mandate to try KR leaders and "those most responsible" 
for the crimes of the KR era.  In question and answer 
sessions that follow, it is clear that the vast majority of 
those Cambodians attending want to see justice done - a 
typical questioner at a September 7 session attended by 
 
PHNOM PENH 00001203  002 OF 004 
 
 
Poloff queried why the KRT hadn't done its work sooner.  Some 
among the audience of 200 wondered why the maximum sentence 
for the heinous crimes of the KR was life imprisonment - 
answer: Cambodia does not permit the death sentence.  Many 
were heartened to hear that the ECCC's work would be used as 
a model for improving Cambodia's court system across the 
board (an explicit message of the fora and film clearly 
endorsed by the Cambodian political leadership). 
 
Internal Rules Working To Date 
------------------------------ 
 
¶5.  (C)  According to court staff, the ECCC Internal Rules 
that took so long to approve (Ref E) are now achieving the 
desired result - particularly helpful have been provisions on 
international investigators' interviews of witnesses. 
Cambodian Director of the ECCC Sean Visoth has stated that 
the nine months it took the international and Cambodian sides 
to approve the Internal Rules is actually a period shorter 
than in most other international tribunals.  Post understands 
that Department is currently evaluating the ECCC Internal 
Rules for their adherence to international standards.  A 
notable feature of the Internal Rules besides the obviously 
unique hybrid nature of the court is a provision for jointly 
re-evaluating and adjusting those rules as the court's 
proceedings move forward.  According to Heather Ryan 
(PROTECT) of the Open Society Justice Institute, one of the 
last successes coming out of June negotiations on the 
Internal Rules was an expansion of the IR review committee 
membership to include some "heavy hitters" on the 
international side.  With a transparent process to modify 
rules in the unique "hybrid" court structure, the system 
appears to be adaptable to international standards.  ECCC 
sources note that the first meeting of the Internal Rules 
review committee will be in November. 
 
Cases in Full Swing 
------------------- 
 
¶6.  (C)  Since the prosecutors' first introductory 
submissions in mid-July (Ref C), the court has been actively 
engaged on two fronts:  Investigating Judges detained Duch 
and ECCC staff have been interviewing him continuously in the 
presence of his lawyers while building the cases surrounding 
all five KR suspects.  The pre-trial chamber of five judges 
is reviewing an appeal by Duch's lawyers against his 
provisional detention and on September 4 published a request 
for amicus curiae briefs - the hearing on the appeal will 
likely be in early October.  One high-ranking investigating 
official told Poloff that "Duch has a lot to say," and that 
if given free rein could spend up to two months presenting 
his testimony.  (COMMENT:  We believe all parties are 
focusing the inquiry more sharply and less time will be 
required.  END COMMENT.)  Duch's testimony will be the 
cornerstone of the prosecution's case regarding a "joint 
criminal enterprise" and given the subtlety of this argument, 
parties on both sides may want to take more time to be sure 
they have covered all lines of inquiry.  The other three 
suspects in the original submission -- whose identities the 
court is holding in confidence -- are: former head of state 
Khieu Samphan;  Ieng Sary, the KR foreign affairs minister; 
and Ieng Thirith (AKA Khieu Thirith), wife of Ieng Sary and a 
member of the KR Central Committee.  One ECCC official stated 
that the court would move to detain more of these suspects in 
the near future, probably in a matter of weeks. 
 
More Cases Coming? 
------------------ 
 
¶7.  (C)  On a second front, the prosecutors have been 
developing further cases over and above the original five 
suspects.  One court official said in early September that 
more introductory submissions on a handful of additional 
suspects are expected within the next month or so. 
 
Cambodian Mis-Steps and Mis-Statements: Irritants 
--------------------------------------------- ---- 
 
¶8.  (C)  The hybrid nature of the ECCC derives many benefits 
from its location inside Cambodia, according to multiple 
observers.  Witnesses and direct evidence are more easily 
obtained and presented to the court in Cambodia.  The people 
who most benefit from the just outcome sought would be able 
personally to witness justice in action.  Cambodian NGOs 
believe that a long-overdue process of reconciliation can 
more readily begin with the trial in country.  The justice 
system in Cambodia will benefit from the conduct of this 
national trial with international assistance, proponents 
 
PHNOM PENH 00001203  003 OF 004 
 
 
state.  Perhaps too keen to reap the benefits from the ECCC's 
work, the RGC appointed ECCC Prosecuting Judge You Bunleng to 
be the new President of the Cambodian Appeals Court, counter 
to the RGC-UN agreement that all judges appointed would 
remain for the duration of the KRT's proceedings. In the end, 
the Cambodian government agreed with the UN that Judge You 
Bunleng would remain in his position at the ECCC.  Observers 
generally agree that the RGC tried to move its most trusted 
jurist in an awkward, ill-timed attempt to meet the needs of 
its national judicial development but failed to properly 
weigh the KRT's needs.  The immunity of King Father Sihanouk 
caused another stir in August-September, but a UN letter to 
the Royal Palace made it clear that the ECCC would adhere to 
its principles and not engage in theatrics.  (COMMENT:  These 
Cambodian government gaffes show that challenges remain for 
the KRT's international jurists in ensuring that Cambodian 
counterparts understand the meaning of the international 
commitments they have undertaken.  END COMMENT.) 
 
ECCC Administration Under Review 
-------------------------------- 
 
¶9.  (C)  Both a UNDP audit and review by the UN Office of 
Legal Affairs (OLA) (Ref D) reveal significant management 
challenges.  The UNDP audit outlines allegations of 
corruption in the hiring of Cambodian national staff to the 
ECCC.  (NOTE: Some local observers believe these "ordinary" 
Asian hiring practices are separate from and have no bearing 
on the standards of justice, but Head of the ECCC Defense 
Support Section Rupert Skilbeck points out that defense 
lawyers will use these allegations to question the KRT's 
overall credibility. END NOTE.)  In a September 7 "ECCC Group 
of Friends" meeting, ECCC director Sean Visoth noted that 
some of the UNDP's audit recommendations were being actively 
pursued.  An ECCC Human Resources Management report and 
procedural manual is expected to be issued on September 19. 
The ICTY's Deputy Chief of Victims and Witness Section is 
completing her secondment to the KRT to set up the ECCC 
Witness and Expert Support Unit.  Court management operating 
procedures are being completed by a former Acting Head of 
Court Management Section in the Special Court of Sierra 
Leone.  Construction activities in the court area are 
commencing, beginning with provision for video feeds from the 
pre-trial chambers, which are going to be made public and 
should be active in October.  (COMMENT:  While donors may not 
feel that the ECCC has resolved all of its management issues, 
many see a way forward, especially if UN headquarters 
restructures the management portfolio.  END COMMENT.) 
 
Funding is the Critical Issue 
----------------------------- 
 
¶10.  (C)  With current monies available, normal operations of 
the ECCC will only be funded through July 2008, on the UN 
side and to August 2008, on the Cambodian side, according to 
the latest financial report released on September 7 (a copy 
of the latest ECCC quarterly report is being pouched to 
S/WCI).  The original, combined UN/Cambodian cost of the 
court was estimated to be $56.3 million, probably well under 
the court's needs.  The latest assessment places the combined 
cost of operating the Khmer Rouge Tribunal at $85.64 million 
through the last quarter of 2009.  About $65 million of this 
sum is to be administered on the UN side.  At least $2 
million of the new requirement on the Cambodian side is to 
support participation by Cambodian civil parties in the case, 
a new requirement under the Internal Rules adopted in June. 
Funding is urgently needed to meet the needs for witness 
protection, which was not adequately programmed in the 
initial budget.  There also is significantly more need for 
translation services for this three-language process (Khmer, 
English, French) than was originally budgeted.  Sources 
connected to some of the initial submissions say that 
significant numbers of Khmer-language documents have been 
submitted to the Investigating Judges with a simple note 
"translation requested."  How the Judges can now swiftly 
bring an indictment on the original five cases in the absence 
of proper translation is a major quandary. 
 
¶11.  (SBU)  The ECCC administration - UNAKRT and the Cambodia 
- have stated that a UN pledging drive to seek support for 
the ECCC is tentatively slated for mid-October.  A venue for 
the drive has not yet been selected, although some members of 
the Friends Group suggest that New York is a likely choice, 
given its larger pool of potential donors.  Since only $48.34 
million of the originally pledged $56.3 million has actually 
been committed to date, the UN will be seeking another $36.8 
million, including about $29.34 million to cover new or 
unanticipated costs. 
 
PHNOM PENH 00001203  004 OF 004 
 
 
 
Wanted: Leadership Among Donors 
------------------------------- 
 
¶12.  (C)  In addition to funding, what is needed from the 
donors by the ECCC's driven international jurists and 
Cambodian counterparts in the court is leadership.  The U.S. 
could offer such leadership if a decision is taken to support 
the ECCC.  Should funding or other forms of direct assistance 
be made available, then the U.S. could have a more direct say 
in the management approach, the overall objectives of the 
ECCC, and some of the special requirements such as witness 
protection.  International Investigating Judge Marcel Lemonde 
(PROTECT) told us recently that in his thirty years as a 
judge under the same civil law procedures used in the ECCC, 
he had always upheld the rule of law and was not about to 
change now.  He would not want to leave as his legacy 
anything other than respected international trial 
proceedings.  If he did not think the Khmer Rouge tribunal 
was capable of achieving that goal, he would not feel 
compelled to spend one more day in the ECCC.  But, given that 
the process was moving forward so well and so quickly, it was 
imperative that the international donor appeal also succeed 
in order to support the justice process in the Khmer Rouge 
Tribunal.  Judge Lemonde was looking for U.S. support of a 
credible ECCC, just as his staff, the prosecution, and the 
defense legal staff have also expressed their desire to see 
U.S. support and leadership in this important international 
tribunal (Ref A). 
 
Comment: A Time to Decide? 
--------------------------- 
 
¶13.  (C)  With Nuon Chea's detention and, for the first time, 
a KR leader being in the dock of the Khmer Rouge Tribunal 
(KRT), the view from the ground is that the time is ripe to 
take a decision on the capability of the KRT to achieve a 
just outcome according to international standards.  The court 
is actively seized with the most important cases and 
reportedly will soon expand its caseload.  Although so much 
of the activity of the court in this civil law-based criminal 
proceeding is done behind the scenes, the court has taken 
care to be as transparent as possible so that justice can be 
seen to be done.  As many international jurists have 
remarked, it is impossible to tell if international standards 
have truly been met in a tribunal like this until the work of 
the KRT is completed and all appeals have been heard and 
decided.  In the meantime, the Cambodian populace is waiting 
for its "Time for Justice", and we are in a position to help 
in that genuine effort. 
MUSSOMELI