[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]
BILLING CODE 4710-30-P