[Federal Register Volume 78, Number 248 (Thursday, December 26, 2013)]
[Notices]
[Pages 78463-78466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30819]
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DEPARTMENT OF STATE
[Public Notice 8574]
Summary of the Certification Related to the Khmer Rouge Tribunal
On June 26, 2013, Deputy Secretary William Burns signed a required
certification for the Khmer Rouge Tribunal, per section 7044(c) of the
Department of State, Foreign Operations, and Related Programs Act, 2012
(Division I, Pub. L. 112-74) as carried forward by the Full-Year
Continuing Appropriation Act, 2013 (Div. F, Pub. L. 113-6), that the
United Nations and the Royal 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'').
The Certification and related Memorandum of Justification are to be
provided to the appropriate committees of the Congress and published in
the Federal Register.
I am signing the below to verify and affirm Deputy Secretary Burns
signature and meet the requirements for publication of these documents
in the Federal Register.
Dated: December 10, 2013.
Ed Shin,
Special Assistant for Deputy Secretary Burns.
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[GRAPHIC] [TIFF OMITTED] TN26DE13.088
Section 7044(c) of the Department of State, Foreign Operations
Appropriations Act, 2012 (Div. I, P.L. 112-74), as carried forward by
the Full-Year Continuing Appropriations Act, 2013 (Div. F, P.L. 113-6)
[[Page 78465]]
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, AS
CARRIED FORWARD BY THE FULL-YEAR CONTINUING APPROPRIATIONS ACT, 2013
Section 7044(c) of the Department of State, Foreign Operations, and
Related Program Appropriations Act, 2012 (Div. I P.L. 112-74), as
carried forward by the Full-Year Continuing Appropriations Act, 2013
(Div. F, P.L. 113-6), 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 and Royal
Government of Cambodia are taking credible steps to address allegations
of corruption and mismanagement within the ECCC. Deputy Secretary Burns
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 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 agreed that
proceedings throughout Case 001 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, with court officials seeking to reach a
verdict in 2014. In response to pre-trial motions, the Court found Ms.
Ieng Thirith, the Khmer Rouge's Minister of Social Affairs, mentally
incompetent to stand trial. She was released from custody in September
2012 after several appeals. Co-accused Ieng Sary, Foreign Minister
during the Khmer Rouge regime, died on March 14, 2013, before a
judgment could be rendered against him. 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 Determination and 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, 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 (IC), who is semi-autonomous from the Tribunal's
administration, the UN, the RGC, and donor states, to hear and address
allegations of corruption at the ECCC. The guidelines established for
the Independent Counselor confirm his 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 within
Cambodia. The Human Rights Center of the University of California,
Berkeley, conducted a survey across 125 Communes nationwide. The
Center's final report, released in 2011, revealed that an increasing
number of Cambodians have confidence in the court.
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, ``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
on the ECCC to provide advice and assistance to successfully conduct a
high-profile war crimes tribunal. In furtherance of this mandate, the
UN tasked the Special Expert 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, former U.S. Ambassador-at-Large for War Crimes Issues
(2006-2009). Williamson was succeeded in January 2012 by David
Scheffer, also a former U.S. 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 monitor 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
[[Page 78466]]
Economic and Social Affairs. The UN Office of Legal Affairs actively
engages on judicial management issues. For example, that office
recommended 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, and the ECCC accepted the recommendation.
Embassy Phnom Penh was notified of allegations of financial
misconduct at the ECCC in September 2012, but a full UN investigation,
including an independent audit, later proved the allegations false. In
September, an outside observer approached an Embassy officer alleging
that ECCC staff paid kickbacks on salaries and that large-scale
financial misconduct occurred with donor money. The source did not
offer any evidence and quoted only anonymous sources, but the Embassy
assessed that the allegations were serious enough to warrant
notification of ECCC officials. Within days of receiving the Embassy's
information, UN Special Expert on the ECCC David Scheffer traveled to
Phnom Penh to investigate the allegations. The result of his initial
investigation, which he shared with the UN in September 2012, showed
small-scale misuse of resources, such as the use of a common television
in a private office and the use of a vehicle for a single employee when
it should have been designated to the motorpool. These misuses of
resources were immediately corrected.
The ECCC subsequently retained the independent accounting firm
Ernst & Young to conduct a spot audit of the Victim Support Section,
where the anonymous sources had alleged that major misconduct had taken
place. The spot audit examined financial assets and expenditures during
the April-June 2012 time period and the inventory of physical assets.
The results of the audit, made available to the U.S. government in
December 2012, revealed that no major irregularities occurred. The spot
audit found that ``no exceptions were noted'' when comparing receipts
of funds and disbursements of funds. Some computer equipment did not
display correct serial numbers, but there was no evidence that any
equipment was misused. While the spot audit was limited, it was
sufficient to examine the allegations presented.
The ECCC took additional precautionary steps to help prevent (or
reveal) corruption. As of October 2012, the tribunal reinstituted
weekly office hours for the Independent Counselor at the ECCC itself
(rather than at the Independent Counselor's office) to receive
allegations of corruption. The Independent Counselor could also receive
allegations outside scheduled office hours. Embassy Phnom Penh is not
aware of any reported allegations since that time. In addition, ECCC
administrative leadership conducted an all-staff meeting in October to
announce the availability of the Independent Counselor and highlight
procedures to report corruption confidentially. ECCC section heads were
also brought together to examine allegations of staff kickbacks. These
efforts have not produced any evidence of corruption. Based on the
efforts of the ECCC officials and the independent auditors, no credible
evidence of corruption or major mismanagement was discovered.
With the appointment of Mark Harmon as the new international Co-
Investigating Judge in 2012, there has been renewed progress in Case
003 and 004 investigations. Since his arrival in October 2012, Judge
Harmon has nearly fully staffed an office that had been affected by
departures and established a constructive working relationship with his
counterpart You Bunleng. While Judge Bunleng has not publicly agreed
that the Case 003 and 004 investigations should go forward, he is also
not obstructing Judge Harmon's investigative efforts. The Case 003 and
004 investigations under Judge Harmon are proceeding expeditiously, and
ECCC officials expect that they will be completed in the first half of
2014 absent unexpected delays.
The ECCC's jurisdiction over suspects in the Cases 003/004 has yet
to be resolved; 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
on an indictment at the conclusion of the investigation, there is a
formal process under the governing documents of the ECCC for resolving
this disagreement in the Pre-Trial Chamber.
Certification and United States Policy Objectives
This certification recognizes the efforts of the UN and the RGC to
address allegations of corruption and mismanagement within the ECCC. It
is not an indication, however, that their responsibilities have
concluded. 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 UN and the RGC to ensure that the ECCC
remains judicially independent, corruption-free and well-managed.
[FR Doc. 2013-30819 Filed 12-24-13; 8:45 am]
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