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PP RUEHWEB

DE RUEHPF #0947/01 3331038
ZNY CCCCC ZZH
P 281038Z NOV 08
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC PRIORITY 0148
INFO RUCNDT/USMISSION USUN NEW YORK PRIORITY 2335

C O N F I D E N T I A L PHNOM PENH 000947 
 
SIPDIS 
 
STATE FOR EAP, P, D, DRL, IO, S/WCI 
 
E.O. 12958: DECL: 11/26/2018 
TAGS: PREL KJUS PHUM CB
SUBJECT: KHMER ROUGE TRIBUNAL: ROCKY ROAD FOR NEW CASES, 
STEADY PATH FOR TRIAL OF FIVE KR LEADERS 
 
Classified By: AMBASSADOR CAROL RODLEY FOR REASONS 1.4 (B, D) 
 
¶1.  (C) SUMMARY:  The next weeks will see major developments 
in the work of the Extraordinary Chambers in the Courts of 
Cambodia (ECCC), as the Khmer Rouge Tribunal is called.  In a 
confidential development, the Cambodian co-prosecutor 
reportedly disagrees with the submission of additional case 
files concerning six more individuals alleged to have 
committed crimes against humanity.  Not all of the six may 
clearly meet a single definition of "those most responsible" 
for war crimes as called for in the court's mandate, but all 
are believed to be notorious for overseeing systems that led 
to the deaths of tens of thousands of Cambodians during the 
Pol Pot era.  The process of adding more accused can go on a 
number of tracks.  The set-back posed by the co-prosecutor's 
non-consent is likely reparable.  Court sources say that, no 
matter what the outcome, most of the six are likely to face 
an initial prosecution and, for any who do not face a full 
trial, there will be a public reckoning.  Separately, the 
Pre-Trial Chamber (PTC) is set to rule on December 5 on 
prosecuting Tuol Sleng (S-21) torture prison head Kaing Guek 
Eav for crimes against humanity based on a theory of "joint 
criminal enterprise," giving prosecutors more room to make 
their case against Duch and, significantly, build their case 
against the other detained KR leaders.  END SUMMARY. 
 
Rocky Road for New Prosecutions 
------------------------------- 
 
¶2.  (C) According to sources familiar with the ECCC 
co-prosecutors office, UNAKRT Prosecutor Robert Petit has 
confidential case files on six individuals, five of whom are 
alleged to each be responsible for the deaths of more than 
100,000 Cambodians.  Petit has been pressing Cambodian 
co-prosecutor Chea Leang these past few weeks to support an 
initial submission to the co-investigating judges regarding 
all six cases.  After two weeks of negotiations, sources 
close to Chea Leang's office state that she answered Petit 
definitively on November 27 that she could not support any of 
the cases and that Petit should now feel free to submit his 
case the Pre-Trial Chamber (PTC).  Whether Petit will submit 
all six cases to the PTC is still an unknown, as ECCC UN 
sources report one or two cases appear to be of a different 
character, perhaps with less supporting evidence. 
 
¶3.  (C) The ECCC rules state that the PTC can reject such a 
case submission only if a super-majority of four judges out 
of seven agree.  Most court observers believe the PTC will 
agree to accept all the cases, at which point the files will 
go to co-investigating judges Marcel LeMonde and You Bunleng. 
 If there is disagreement at this next stage, the case files 
would go back to the PTC where a second positive vote is 
expected by many court watchers.  Solution of the initial 
disagreement between prosecutors will add three months to the 
court's timetable.  A similar dispute about adding new cases 
at the co-investigating judges' level would add another three 
to six months to the proceedings.  However, by Fall 2009, the 
court will be in a position to bring forward new accused, 
according to ECCC and court watcher sources. 
 
¶4.  (C) All of the proceedings on new cases are supposed to 
be conducted in camera and are confidential.  The Pre-Trial 
Chamber may elect not to announce either its consideration of 
or its judgment on new case files, if it so chooses. 
However, some in UNAKRT are pushing to give some publicity to 
the new case file submissions and, if Prosecutor Petit makes 
his filing to the pre-Trial Chamber early next week, a press 
release may be issued soon thereafter.  Such an announcement, 
even if vaguely worded, would highlight that co-prosecutor 
Chea Leang disagreed with the new case submissions. 
 
¶5.  (C) Some in the NGO community may choose to highlight 
co-investigating prosecutor Chea Leang's refusal to support 
the new cases as evidence of outside political influence. 
Open Society Justice Institute's (OSJI) Heather Ryan told 
Pol/Ec Chief November 28 that, if there is an ECCC press 
release on this topic, the OSJI would then place an op-ed 
opinion piece alleging that there was indeed outside 
political influence brought to bear and that the Cambodian 
co-prosecutor was explicitly told not to agree to the new 
cases so as to protect Cambodia's peace and stability.  Ryan 
said that OSJI was still considering the timing of this move, 
which would be based in part on whether there was an ECCC 
press release. 
 
Smooth Going for the Current Five Cases 
--------------------------------------- 
 
¶6.  (C) The Pre-Trial Chamber is set to rule December 5 on 
prosecuting Tuol Sleng (S-21) torture prison head Kaing Guek 
 
Eav for crimes against humanity based on a theory of "joint 
criminal enterprise."  Application of this theory to Duch's 
trial, to start in February 2009, will aid prosecution of the 
four other Khmer Rouge leaders detained on a raft of charges, 
including genocide.  The ruling will likely kick the can down 
the road on substance, according to sources, but give 
prosecutors room to make their fullest case.  The PTC is 
reportedly conscious of its jurisdictional boundaries and 
does not want to pre-empt the trial chamber's rulings on such 
a fundamentally important topic as "joint criminal 
enterprise", a controversial theory of law, but one which 
would tie together the four Khmer Rouge leaders' joint 
culpability for up to two million deaths during the 1975-1979 
Pol Pot era. 
RODLEY