VZCZCXRO5186
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0243/01 1001059
ZNY CCCCC ZZH
O 101059Z APR 09
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0604
INFO RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 2376
RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY

C O N F I D E N T I A L SECTION 01 OF 03 PHNOM PENH 000243 
 
NOFORN 
SIPDIS 
 
STATE FOR EAP/MLS, P, D, IO, DRL, S/WCI 
USUN FOR SIMONOFF 
 
E.O. 12958: DECL: 04/09/2019 
TAGS: PREL PGOV KJUS PHUM KTIA CB
SUBJECT: KHMER ROUGE TRIBUNAL: UN FORMALIZES OWN 
ANTI-CORRUPTION MECHANISM AS SOK AN MULLS OVER UN PROPOSAL 
 
REF: A. PHNOM PENH 213 
     ¶B. PHNOM PENH 168 
 
Classified By: AMBASSADOR CAROL A. RODLEY FOR REASONS 1.4 (B, D) 
 
¶1.  (C) SUMMARY:  Deputy Prime Minister and Minister of the 
Council of Ministers Sok An continues to deliberate over a 
joint anti-corruption mechanism for the Khmer Rouge Tribunal 
(KRT) proposed by UN Assistant Secretary General Peter 
Taksoe-Jensen of the UN Office of Legal Affairs (UN/OLA), 
after Taksoe-Jensen departed Phnom Penh April 8 saying that 
he no longer needed to negotiate the issue.  After three days 
of hard talks, the single remaining difference -- deemed 
small by the Cambodians -- revolves around the complaint 
reporting mechanism.  In a formal statement upon his 
departure, Taksoe-Jensen noted that KRT staff should be free 
to file complaints with either of two ethics monitors and be 
assured confidentiality.  Sok An has insisted that a February 
23 "Joint Statement" calls for parallel UN and Cambodian 
reporting mechanisms and continues to try to keep that 
proposal alive.  The Ambassador called on Sok An on April 8 
to urge him to take the deal offered by Taksoe-Jensen.  In 
the meantime, the April 8 exit statement of Taksoe-Jensen 
outlines an interim UN-only anti-corruption mechanism with a 
UN-appointed Ethics Monitor -- a mid-ranking officer at the 
KRT.  The UN-Cambodian Joint Sessions will continue to meet, 
but donors will have to urge more effort if we want to see 
the gap closed.  END SUMMARY. 
 
Taksoe-Jensen Outlines Three Sticking Points 
-------------------------------------------- 
 
¶2.  (C) In a meeting with core donors April 7, Taksoe-Jensen 
reviewed three items remaining in a four-page document on an 
anti-corruption mechanism on which agreement had almost been 
reached.  (Post is transmitting a copy of the Taksoe-Jense 
proposal to the Desk, along with a Cambodian proposal, both 
to be kept close hold.)  Earlier, in an April 5 meeting with 
the donors, Taksoe-Jensen had acknowledged that he would be 
using the February 23 "Joint Statement" as a floor from which 
to negotiate (Ref B) and indicated that he had already agreed 
with Sok An that a super-majority of the Joint Sessions would 
be required to recommend action on a complaint.  However, 
there was no clear method to handle complaints when the Joint 
Sessions was in "deadlock".  Taksoe-Jensen said that he 
accepted a proposal by Sok An to call in the "heavy-weights" 
(senior Cambodian and UN officials) in such cases.  A second 
point was the handling of cases for which the complaining 
party refused to reveal their identity.  In those instances, 
the Ethics Monitor would not make recommendations for action 
to the Joint Sessions, according to Taksoe-Jensen's proposal. 
 UN KRT Deputy Director Knut Rosandhaug indicated that the 
main purpose of receiving such complaints was to have an open 
flow of information -- this would provide a sufficient 
deterrent effect against anyone contemplating unacceptable 
behavior. 
 
¶3.  (C) The third and most crucial point for Taksoe-Jensen 
was the availability of multiple channels to file complaints. 
 Sok An said repeatedly that Cambodians must file complaints 
only with the Cambodian Ethics Monitor and UN staff would go 
to the UN in a parallel system, he noted.  Taksoe-Jensen 
insisted throughout the negotiation that any KRT staff member 
must have the freedom to choose to file a complaint with 
either the Cambodian or the UN Ethics Monitor.  For 
Taksoe-Jensen, the issue was the availability of an 
independent third party to receive grievances, which was part 
of any complaints system in developed civil service systems, 
he explained to donors.  Any complainant would also be able 
to request that their identity be protected in a strict 
system of confidentiality (to protect against retaliation). 
Sok An gave various interpretations to the Cambodian 
insistence on reporting lines going to a Cambodian Ethics 
Monitor, including that any other method would have a 
negative impact on the rest of the Cambodian government 
bureaucracy outside the tribunal and that a system allowing 
for outside reporting would only create more mistrust at the 
tribunal. 
 
¶4.  (C) This third sticking point carried forward into 
another negotiating session on the evening of April 7, but no 
agreement was reached.  Sok An told Taksoe-Jensen he was 
still considering the UN's tabled proposal.  Taksoe-Jensen 
told the Ambassador that he decided to stay another day 
because he believed that Sok An might move.  In the meantime, 
late on April 7, the French Ambassador called on Sok An to 
review the bidding and to note that the two sides were close. 
 
PHNOM PENH 00000243  002 OF 003 
 
 
 
Sok An Still Wary of UN Proposal 
-------------------------------- 
 
¶5.  (C) On April 8, the Ambassador called on a relaxed but 
tired-looking Sok An to review his successes in the 
negotiation with Taksoe-Jensen and to encourage Sok An to 
agree to the tabled UN proposal.  Sok An stated that the 
Cambodian proposal was better because it provided either an 
anonymous mechanism to file a complaint or a confidential 
mechanism (in parallel).  KRT staff had the freedom to choose 
under his proposal, he noted.  (NOTE:  However, he could not 
explain how a person could have their identity protected. 
End Note.)  On the other hand, the UN proposal would only 
create deeper mistrust between the UN and Cambodian staff 
while Sok An's proposal would help build trust at the court. 
At Taksoe-Jensen's request, the Ambassador outlined a 
proposed new feature to the UN proposal:  the UN Ethics 
Monitor would be selected from a UN-provided list of nominees 
but the Cambodian government would select the monitor. 
Because they would be able to pick the UN Ethics Monitor, the 
Cambodian government could trust the system and be confident 
that the complaint would be shared, as noted in the 
agreement.  A Cambodian-chosen monitor would also ensure that 
no frivolous complaints would be acted on, said the 
Ambassador.  In an 80-minute discussion, Sok An kept circling 
back to the principles incorporated into his own proposal: 
confidentiality of the complaint within the Joint Sessions 
(NOTE: but not the identity of the whistle-blower. END 
NOTE.), anonymity (through a shared drop-box or similar 
system), and the freedom to choose between those two 
mechanisms.  Sok An could not explain how a whistle-blower 
could be afforded protection when filing a complaint in good 
faith, if the complaint only went from Cambodian national 
staff to the Cambodian Ethics Monitor. 
 
¶6.  (C) Taksoe-Jensen had his last meeting with Sok An the 
afternoon of April 8 during which they reviewed their 
respective draft proposals.  (NOTE: The Cambodian proposal 
dated April 8 and which we sent to the Desk appears to be a 
later version, different from the one delivered to the UN 
team.  Post cannot determine if this newer proposal was 
officially conveyed to the UN.  END NOTE.).  However, 
according to UN/OLA's officer at the KRT, the Cambodian 
proposal continued to have the chief defect that there was no 
mechanism whereby any staff member could choose between two 
ethics monitors to make a complaint.  The proposed Cambodian 
parallel complaints mechanism also affords no confidentiality 
to the individual making the complaint.  An anonymous 
drop-box is the only other system offered.  At their last 
meeting, Sok An and Taksoe-Jensen "explained their different 
mechanisms, but did not agree," according to the UN legal 
officer present. 
 
RGC Public Stance: Still Negotiating 
------------------------------------ 
 
¶7.  (C) Taksoe-Jensen told the donors that he would leave a 
draft anti-corruption mechanism with Sok An and that it would 
be up to Sok An to agree to his "last best offer".  However 
within a day of the UN's concluding the negotiation phase, 
the  Royal Government of Cambodia (RGC) has stated that it 
"never closed the door for talks," according to Phay Siphan, 
Secretary of State and spokesperson for the Council of 
Ministers.  Phay Siphan told the Phnom Penh Post that "It is 
too early to resume talks because each side has drafts in 
hand to consider." 
 
¶8.  (C) On the afternoon of April 10, on instructions of Sok 
An, ECCC Acting Director Tony Kranh emailed to all the major 
donors "the Cambodian proposal." It is not clear if or when 
this proposal will be conveyed officially to the UN, as it 
reportedly differs in some respects from the proposal Sok An 
and Taksoe-Jensen discussed. 
 
¶9.  (C) Phay Siphan told the local press that at least one 
KRT donor country's ambassador has urged Taksoe-Jensen to 
sign the proposal offered by Sok An.  (COMMENT: We believe 
that may be the Japanese, whose DCM told Taksoe-Jensen the 
Cambodians would never agree to complaints by national staff 
being filed to the UN. END COMMENT.)  Japanese Ambassador 
Katsuhiro Shinohara told the Ambassador April 10 that he 
believed the RGC proposal merited further discussion and that 
Tokyo would be instructing their UN mission to deliver such a 
message.  The Ambassador relayed that she strongly supported 
the Taksoe-Jensen proposal which she believed met many of the 
Cambodian requirements, and that she believed Taksoe-Jensen 
 
PHNOM PENH 00000243  003 OF 003 
 
 
had negotiated in good faith. 
 
¶10.  (C/NF) In the meantime, Taksoe-Jensen stated that the UN 
will have its own UNAKRT Ethics Monitor who will receive 
complaints at the KRT.  We understand that Senior Program 
Management Officer Rajeev Kumra has been named to fill that 
position.  He has been tasked to forward all complaints 
received to the UN Headquarters for review and action, as 
appropriate.  The Joint Sessions is also supposed to continue 
to meet on a regular basis, but we understand that no date 
has been set for a next meeting and that, on the Cambodian 
side, Chief of Public Affairs Helen Jarvis will be away for 
ten days. 
 
Comment 
------- 
 
¶11.  (C) Taksoe-Jensen has been forthright in stating that 
there are certain core UN ethics principles that must be 
honored in a KRT anti-corruption mechanism.  We agree that 
the UN should not go below a certain threshold and that the 
current Cambodian proposal does not rise to meet that limit. 
The Cambodian proposal is however worthy of further 
consideration, should it incorporate whistleblower 
protections and the concept of reporting grievances to third 
parties.  It may fall to the donors to push the Cambodians to 
take that next step.  In the meantime, the judicial process 
at the Khmer Rouge Tribunal continues to go ahead smoothly as 
Cambodian public hears revelations of the sobering tortures 
exacted by Cambodians on Cambodians under interrogation 
during the Khmer Rouge era. 
RODLEY