[Federal Register Volume 77, Number 165 (Friday, August 24, 2012)]
[Notices]
[Pages 51604-51606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20899]
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DEPARTMENT OF STATE
[Public Notice 7990]
Certification Related to the Khmer Rouge Tribunal
Pursuant to the authority vested in me under Section 7044(c) of the
Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2012 (Division I, Pub. L. 112-74) (SFOAA) and
Delegation of Authority 245-1, I hereby certify that that the United
Nations and Government of Cambodia are taking credible steps to address
allegations of corruption and mismanagement within the Extraordinary
Chambers in the Courts of Cambodia (also known as the ``Khmer Rouge
Tribunal'').
This Certification shall be published in the Federal Register, and
sent, along with related Memorandum of Justification, to the
appropriate committees of the Congress.
Dated: August 13, 2012.
Thomas R. Nides,
Deputy Secretary for Management and Resources.
Section 7044(c) of the Department of State, Foreign Operations
Appropriations Act, 2012 (Div. I, Pub. L. 112-74)
Funding for the Extraordinary Chambers in the Courts of Cambodia
Sec. 7044(c) Cambodia.--Funds made available in this Act for a
United States contribution to a Khmer Rouge tribunal may only be made
available if the Secretary of State certifies to the Committees on
Appropriations that the United Nations and the Government of Cambodia
are taking credible steps to address allegations of corruption and
mismanagement within the tribunal.
Memorandum of Justification for Certification Related to the Khmer
Rouge Tribunal Under Section 7044(C) Of the Department of State,
Foreign Operations and Related Programs Appropriations Act, 2012
Section 7044(c) of the Department of State, Foreign Operations and
Related Program Appropriations Act, 2012 (Div. I Pub. L. 112-74),
provides that funds appropriated by that act for a United States
contribution to the Extraordinary Chambers in the Courts of Cambodia
(ECCC, also known as the Khmer Rouge Tribunal) may only be made
available if the Secretary of State certifies to the Committees on
Appropriations that the United Nations (UN) and Royal Government of
Cambodia (RGC) are taking credible steps to address allegations of
corruption and mismanagement within the ECCC. Deputy Secretary Nides
has signed the certification pursuant to State Department Delegation of
Authority 245-1.
Background
The ECCC, which began operations in 2006, was established as a
national court with UN assistance to bring to justice senior leaders
and those most responsible for the deaths of as many as two million
Cambodians under the Khmer Rouge regime, which was in power from April
17, 1975 until January 6, 1979. In 2010, the ECCC completed its first
case (Case 001), convicting Kaing Guek Eav (aka ``Duch''), former chief
of the Tuol Sleng torture center, of crimes against humanity and war
crimes, and sentenced him to 35 years in prison. Duch's trial was the
first attempt in three decades to hold a Khmer Rouge official
accountable for that era's atrocities and was a milestone in the
history of Cambodian justice. In
[[Page 51605]]
February, 2012 the ECCC's Supreme Chamber upheld that conviction, and
extended Duch's sentence to life in prison. The United States, other
foreign governments, and non-governmental organizations (NGOs)
monitoring the ECCC agree that proceedings throughout met international
standards of justice. In September, 2010, the four surviving senior
leaders of the Khmer Rouge, including Nuon Chea (``Brother Number 2''),
were indicted on a variety of charges (``Case 002''), including crimes
against humanity, grave breaches of the Geneva Convention, and
genocide. The trial commenced in November 2011. In response to pre-
trial motions, Ms. Ieng Thirith, the Khmer Rouge's Minister of Social
Affairs, was found mentally incompetent to stand trial. She has not
been released from custody, as treatment is underway to see if her
condition can be sufficiently improved to allow her to stand trial.
Investigations by the ECCC's Office of the Co-Investigating Judges
commenced in September, 2009 against three suspects (``Case 003'') and
no final decision has been made regarding the legal question of whether
the suspects and their alleged crimes fall within the jurisdiction of
the ECCC. Two additional suspects (``Case 004'') are also being
investigated.
Factors Justifying Certification
From the time the ECCC commenced operations in 2006, there have
been allegations of corruption on the administrative side of the court,
primarily in the form of salary kickback schemes affecting Cambodian
staff members. These allegations received widespread attention from
U.S. and international media, and concerns about corruption led many to
question the ECCC's ability to deliver justice. In late 2008, at the
request of the United States and other donors, the RGC removed the
Cambodian head of administration, the person most associated with the
corruption scheme. His replacement, Tony Kranh, who remains the Acting
Director today, has been competent and has cooperated well with the
donor community, the ECCC officials, and the UN Office of Legal
Affairs.
The ECCC, in cooperation with the UN, has taken additional steps to
protect the integrity of its proceedings against corruption. In August
2009 the UN and RGC reached an agreement to establish an Independent
Counselor, which is semi-autonomous from the Tribunal's administration,
the UN, the RGC and donor states, to hear and address corruption
allegations at ECCC. The guidelines established confirm the Independent
Counselor's obligations to protect the confidentiality of complainants,
ensure that there are no reprisals for whistle-blowing, and provide a
report of his activities to both the UN and RGC. Addressing the ECCC in
October 2010, the Secretary General commended the work of the
Independent Counselor and the effect that office has on the public
perception of the ECCC--that the Tribunal's administration will not
tolerate any form of corruption.
These steps have led to increased confidence in the ECCC. The Human
Rights Center of the University of California Berkeley conducted a
survey in December 2010 across 125 Cambodian communes nationwide. The
Center's final report, released on June 9, 2011, reveals that an
increasing number of Cambodians have confidence in the court. A recent
poll by the International Republican Institute found that 77 percent of
Cambodians were aware of the proceedings at the ECCC.
Donor States, NGOs, and other monitors of the ECCC have expressed
increased confidence in the proceedings as well. The Secretary General
stated in the fall of 2010 that ``Beyond all doubt, the court has shown
that it is capable of prosecuting complex international crimes in
accordance with international standards.'' In a resolution adopted at
its 18th session (September 2011), the Human Rights Council reaffirmed
the importance of the ECCC as an independent and impartial body, and
welcomed the assistance of member states and the efforts of the
Cambodian government to work with the UN to ensure the highest
standards of administration are met.
In July 2010, the UN established the office of the Special Expert
to the Secretary-General of the ECCC to provide advice and assistance
to successfully managing this high-profile war crimes tribunal. In
furtherance of this mandate, the Special Expert is tasked with
monitoring, reporting, and addressing any and all administrative issues
related to the ECCC's functioning. The position was held from July 2010
to October 2011 by J. Clint Williamson, U.S. Ambassador-at-Large for
War Crimes Issues from 2006-2009. Williamson was succeeded in January
2012 by David Scheffer, himself also a former Ambassador-at-Large for
War Crimes Issues (1997-2001).
The ECCC provides a monthly report to the UN Controller and the UN
Department of Economic and Social Affairs, which closely monitors the
Tribunal's activities, including its expenditures. In addition, all
hiring on the international side of the ECCC is vetted by the UN
Department of Economic and Social Affairs. The UN Office of Legal
Affairs actively engages on judicial management issues. For example,
the ECCC accepted the UN's recommendation that the Pre-Trial Chamber
sit on a full-time basis in order to improve the ECCC's efficiency and
to expedite its decision-making.
Since the appointment of the new ECCC administration, the creation
of the Independent Counselor position, and the establishment of the
UN's Special Expert Office, the United States has not learned of any
credible allegations of corruption or mismanagement within the ECCC.
Developments in Cases 003 and 004, while not related to corruption or
mismanagement, do warrant examination.
In late April 2011, the ECCC's Office of Co-Investigating Judges
(OCIJ)--at the time led by Cambodian national You Bunleng and German
national Siegfried Blunk--ended its investigation into Case 003 and
forwarded the evidence to the Office of the Co-Prosecutors. The
international co-prosecutor, Andrew Cayley, dissatisfied with the
amount and depth of evidence, requested the OCIJ to conduct further
investigations and publicly released his request for additional
investigation. This action led to a response from the OCIJ that
appeared to threaten Cayley with contempt for publicizing confidential
matters. While the OCIJ subsequently made it clear that it did not seek
to sanction Cayley, it also disagreed with Mr. Cayley's legal position
and defended the adequacy of its factual investigations. While no
closing order recommending dismissal was ever filed, ECCC's observers
assess that the OCIJ supported dismissing the suspects from further
investigation. Mr. Blunk came under intense criticism from outside
observers and by some of his own office for his handling of Case 003,
and a prominent international NGO alleged mismanagement and possibly
misconduct. However, neither the NGO, nor missions by the UN's Office
of Human Resource Management nor any other source has produced evidence
that substantiates this allegation. Nevertheless, under increasing
pressure, Mr. Blunk announced his resignation October 10, 2011,
claiming that he was unable to carry out his duties due to political
interference by the RGC.
It was expected that Mr. Blunk would be succeeded by Mr. Laurent
Kasper-Ansermet of Switzerland, whom the UN had previously nominated
and confirmed as the reserve co-investigative judge. It was the UN's
legal view that Kasper-Ansermet's accession was to have been automatic.
However, citing statements Mr. Kasper-Ansermet
[[Page 51606]]
has published on Twitter prior to his nomination, the RGC refused to
confirm him. After attempting to exercise his duties as reserve co-
investigating judge for six months, Mr. Kasper-Ansermet tendered his
resignation on March 19, 2012 citing his inability to gain the
cooperation of the Cambodian national co-investigating judge, Mr. You
Bunleng. Mr. Kasper-Ansermet's resignation was effective May 4, 2012.
To replace Kasper-Ansermet, the UN nominated U.S. citizen Mark Harmon,
a retired career U.S. Department of Justice prosecutor, who also served
more than a decade as a Senior Trial Attorney in the Office of the
Prosecutor of the International Criminal Tribunal for the former
Yugoslavia (ICTY). Unlike Kasper-Ansermet, the Cambodian Supreme
Council of the Magistracy (SCM) confirmed Harmon in the position.
The ECCC's jurisdiction over suspects in the Cases 003/004 has yet
to be resolved; and therefore the co-investigating judges have not made
a final determination on whether these individuals should be indicted.
Should the national and international co-investigating judges disagree,
there is a formal process under the governing documents of the ECCC for
resolving this disagreement in the Pre-Trial Chamber.
Before his departure, Kasper-Ansermet complained publicly that his
investigation of Cases 003/004 has been obstructed by the non-
cooperation of Cambodian-appointed judges and officials. Judge Bunleng
publicly responded that the difficulties had arisen because Kasper-
Ansermet had not been confirmed in his appointment due to the latter's
public comments on confidential judicial matters. As Mark Harmon's
nomination has been confirmed by the SCM, we anticipate that he will
receive appropriate cooperation from national and international judges
and officials. There may be disagreements about whether the suspects in
Cases 003/004 should be subject to indictment and trial, but we expect
these matters to be resolved by the co-investigative judges and the
Pre-Trial Chamber in accordance with applicable law and procedure.
Certification and United States Policy Objectives
Certification recognizes the efforts of the UN and RGC to address
allegations of corruption and mismanagement within the ECCC. It is not
an indication, however, that work is complete. Both parties must
continue to exercise oversight of the ECCC's operations, and the donor
community and NGOs must continue their vigilant engagement with the
United Nations and the Royal Cambodian government to ensure that the
ECCC remains judicially independent, corruption-free, and well-managed.
[FR Doc. 2012-20899 Filed 8-23-12; 8:45 am]
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