VZCZCXRO1442
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0168/01 0761015
ZNY CCCCC ZZH
O 171015Z MAR 09
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0499
INFO RUCNASE/ASEAN MEMBER COLLECTIVE IMMEDIATE
RUEHRL/AMEMBASSY BERLIN IMMEDIATE 0202
RUEHBS/AMEMBASSY BRUSSELS IMMEDIATE 0095
RUEHBY/AMEMBASSY CANBERRA IMMEDIATE 2368
RUEHLO/AMEMBASSY LONDON IMMEDIATE 0483
RUEHOT/AMEMBASSY OTTAWA IMMEDIATE 0584
RUEHFR/AMEMBASSY PARIS IMMEDIATE 0687
RUEHTC/AMEMBASSY THE HAGUE IMMEDIATE 0314
RUEHKO/AMEMBASSY TOKYO IMMEDIATE 3271
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 2373

C O N F I D E N T I A L SECTION 01 OF 03 PHNOM PENH 000168 
 
SIPDIS 
 
STATE FOR EAP/MLS, P, D, L/ESA, IO, DRL, S/WCI 
 
E.O. 12958: DECL: 03/17/2018 
TAGS: PREL KJUS EAID PGOV KTIA CB
SUBJECT: DONORS URGE RESUMED FUNDING, MORE NEGOTIATION ON 
KHMER ROUGE TRIBUNAL ANTI-CORRUPTION MECHANISM 
 
REF: A. LAWLESS-WEST-SIMONOFF-MELLOTT EMAIL (3/13/09) 
     ¶B. SIMONOFF-MELLOTT EMAIL (3/6/09) 
     ¶C. LAWLESS-EAP/MLS EMAIL (2/23/09) 
     ¶D. PHNOM PENH 143 
     ¶E. PHNOM PENH 105 
     ¶F. PHNOM PENH 101 
     ¶G. PHNOM PENH 58 
     ¶H. PHNOM PENH 29 
     ¶I. 08 PHNOM PENH 982 
 
Classified By: Ambassador Carol A. Rodley for reasons 1.4 (B, D) 
 
¶1.  (C) SUMMARY:  Nearly on the eve of the opening of the 
first Khmer Rouge trial on March 30, ambassadors from seven 
major donor nations to the hybrid Khmer Rouge Tribunal (KRT) 
reviewed March 17 a looming crisis in the funding of the 
court and a March 23 deadline for resolution by a joint 
UN-Cambodian team of issues related to corruption on the 
administrative side of the court (Refs A-C).  Most 
ambassadors reiterated their discussions were informal and 
were meant to inform each other in advance of making 
recommendations to their capitals.  After considering the 
"very wide" gaps in the two sides' currently stated 
positions, but also noting the good progress made since the 
UN and Royal Government of Cambodia (RGC) first met last 
December (Ref I), the group reached informal consensus that 
their capitals should: (1) encourage the UN to accept a 
February 23 "Joint Statement" to serve as a floor position 
that should not be altered but from which the two sides 
should continue to refine additional points;  (2) urge that 
every effort should be made by both sides to continue 
negotiations, including by a high-level UN delegation present 
in Phnom Penh; and (3) approve resumption of limited donor 
funding to the RGC to pay the court's monthly payroll for 
Cambodian employees and thus avert any interruption to the 
court's work. 
 
¶2. (C) SUMMARY CONTINUED:  Donors in unison agreed with the 
Australian ambassador's strongly held view that the UN-based 
KRT Steering Committee should not be invited to make policy 
recommendations or take decisions outside its narrow terms of 
reference.  Other suggestions included having the UN-RGC 
Joint Sessions team together give a briefing to the donors in 
Phnom Penh and urging the two sides to issue a joint 
communique on March 23 to mark the progress that has been 
made to date.  ECCC Director Sean Visoth -- under a cloud of 
corruption allegations -- continues on medical leave, and the 
Japanese and French Ambassadors repeated that Sok An 
"understands the necessity" of this point.  Post seeks 
guidance from the Department on these proposals with the view 
to sharing the USG policy with ambassadors from among the 
core donors: Japan, France, Australia, and the UK and 
coordinating a demarche to the UN.  END SUMMARY. 
 
Sok An Not Pleased with UN Reading of "Joint Statement" 
--------------------------------------------- ---------- 
 
¶3.  (C) Shortly after the February 23 departure of UN 
Assistant Secretary-General for Legal Affairs Peter 
Taksoe-Jensen it became apparent to Deputy Prime Minister and 
Minister of the Council of Ministers Sok An that the two 
sides had radically different interpretations of the agreed 
text (Ref C) of the "Joint Statement," according to a 
read-out of a March 12 meeting with Sok An by Japanese 
Ambassador Katsuhiro Shinohara and French Ambassador 
Jean-Francois Desmazieres.  Sok An had briefed Prime Minister 
Hun Sen that evening about his success.  However, in the next 
day's The Cambodia Daily, the UN interpretation of two key 
points was contrary to Sok An's understanding.  Specifically, 
the reference to filing of complaints noted they were in 
"parallel" to "respective" entities on the UN and Cambodian 
sides.  The RGC believed that all Cambodians would file 
complaints with the Cambodian side, and this was a point of 
national sovereignty the RGC was not going to give up, 
Ambassador Desmazieres relayed. (NOTE: The Joint Statement 
published on February 23 is available on the ECCC website. 
END NOTE.) 
 
¶4.  (C) There was also a grave difference over the issue of 
the need for a super-majority if the UN and RGC could not 
 
PHNOM PENH 00000168  002 OF 003 
 
 
agree on actions to take regarding a complaint of wrong-doing 
by court staff.  The Cambodians believed they were requiring 
a super-majority to take action and not -- as the UN is 
reported to interpret the clause -- requiring a super 
majority to halt an action that would otherwise go forward. 
Since the action in this case would be similar to sentencing 
a person, according to Ambassador Desmazieres, the rule of 
super-majority as it applies in the KRT trial chambers would 
apply. (The UN interpretation is based on the rule of the 
super-majority in the KRT pre-trial chambers, which is a 
"matter of process only" said the French ambassador.) 
 
¶5. (SBU)  After the February meeting, Sok An sent a letter 
March 3 to Taksoe-Jensen reiterating that he would not change 
the language in the Joint Statement.  A letter dated March 9 
from Taksoe-Jensen and a follow-on letter March 12 from Sok 
An only clarified the positions are hardening around one or 
two points of the text. (Post is sending copies of these 
letters to the Desk.) 
 
¶6.  (C) "Cambodia has real arguments," said Ambassador 
Desmazieres, who was supported by the Japanese and Australian 
Ambassadors.  Australia's Margaret Adamson said that 
"Cambodia is in the right" based on a reading of plain 
English and the underlying principles at the court. 
 
¶7.  (C) Referring to the March 12 meeting with Sok An, the 
Japanese Ambassador skillfully referred to Sok An's attitude 
as "stern and serious."  Ambassador Desmazieres bluntly 
stated Sok An was "furious" and that he was "not accepting" 
of a post-facto UN interpretation.  Continuing, Desmazieres 
said that Sok An was subsequently upbraided by PM Hun Sen for 
making a "stupid" agreement and that Sok An characterized 
this second meeting with the PM as a "slap in the face." 
Desmazieres made it clear that the RGC would not change the 
language in the current "Joint Statement." 
 
Next Steps:  Floor Position From Which to Negotiate 
--------------------------------------------- ------- 
 
¶8.  (C) The Japanese and French Ambassadors explained that 
they coaxed Sok An and the Cambodian negotiating team to 
continue in the process of negotiating on an acceptable 
mechanism to deal with anti-corruption.  However, the 
Japanese Ambassador expressed concern about the wide and 
deepening gaps between the two sides evident in the exchange 
of letters.  Ambassador Rodley suggested that there might be 
more choices to consider in the anti-corruption mechanism 
beyond which side would receive complaints from whom, 
including further elaboration of points on confidentiality 
and protections for whistle-blowers.  Australian Ambassador 
Adamson agreed that there was more substance to negotiate. 
If the UN could be persuaded to accept the current text as a 
"floor position" -- the minimally acceptable approach -- then 
both sides could get back to the negotiating table to hammer 
out more details.  EU Charge Dochao-Moreno agreed, stating 
that donors should acknowledge the negotiations were "going 
in a good direction," a point which received wide support. 
 
UN Back to the Table? 
--------------------- 
 
¶9.  (C)  Donors were also unified on the need to have either 
Taksoe-Jensen or a senior UN negotiator with a full mandate 
return to Phnom Penh to conclude a successful negotiation and 
an "Exchange of Letters" by March 23.  Expressing some dismay 
with the UN/OLA approach to its relations with the RGC, 
Ambassador Adamson highlighted that Phnom Penh is where the 
negotiation is.  UK DCM Elizabeth Evans suggested that 
Taksoe-Jensen be prepared to come to Phnom Penh for up to a 
week, to spend more time on the problem, to have a 
conversation, brief the donors on the sticking points, and 
also to see the work of the court.  Australia's Adamson asked 
if Taksoe-Jensen had visited the court yet.  The group as a 
whole believed that the UN should send a delegation with a 
mandate to negotiate, to be ready to spend some time and 
bring the matter to conclusion. 
 
Funding for Cambodian Side 
-------------------------- 
 
PHNOM PENH 00000168  003 OF 003 
 
 
 
¶10.  (C) The Japanese DCM emphasized another point raised by 
Sok An - the imminent depletion of funds on the Cambodian 
side of the court: Cambodians will be without salaries by the 
end of March.  While withholding funds in the past got the 
attention of the Cambodians, the DCM feared that it is now 
being viewed as a form of "international blackmail" by the 
RGC, which has been engaged in serious negotiations on an 
anti-corruption mechanism.  He recommended that a core group 
of donors resume funding for at least a month -- a sum of 
about $200,000.  In response to a suggestion that the amount 
cover a longer period of time, Canadian Charge Evelyn 
Coulombe stated the belief that the work would be done more 
quickly if there was some sense of a finite period.  Japan, 
Australia and France agreed to seek a pool of short-term 
funds on an urgent, temporary basis, so as to keep the 
negotiations on track and to show international support for 
the work of the court. 
 
Suggestions for Further Progress 
--------------------------------- 
 
¶11.  (C) The donors received with interest the suggestion by 
the EU that the two sides issue a Joint Communique by March 
23 to summarize the work to date, and noting the Joint 
Sessions are going in the right direction.  The Ambassador's 
suggestion that the Joint Sessions give a formal briefing to 
the donors in Phnom Penh was also warmly received.  The 
Australian Ambassador remarked that such an "occasion" would 
at least bring the two sides together on a joint project. 
There was no enthusiasm for a visit by the Steering Committee 
at this time or a digital video conference.  The group 
supported a meeting by Taksoe-Jensen with a full meeting of 
the broader "Group of Interested States" (GIS), which last 
met formally in March 2008, as the KRT's new budget was being 
prepared at the UN. 
 
COMMENT: 
-------- 
 
¶12.  (C) Post recommends that, through formal instructions 
from the Department to the USUN, we encourage the UN to 
accept a February 23 "Joint Statement" to serve as a floor 
position that should not be altered but from which the two 
sides should continue to refine additional points.  We  also 
support the effort to urge that every effort should be made 
by both sides to continue negotiations, including by a 
high-level UN delegation present in Phnom Penh.  although our 
position is not critical, we should give moral support to the 
resumption of limited donor funding to the RGC to pay the 
court's monthly payroll for Cambodian employees and thus 
avert any interruption to the court's work.  These are the 
best paths forward and will help the KRT focus on bringing to 
justice the leaders of the Khmer Rouge-led genocide, five of 
whom are in detention and one of whom will face trial in less 
than two weeks in a judicial process that is being widely 
praised. 
RODLEY