The Good, The Bad and The Ugly JUDGES at the KRT

The UGLY Ney Thol

The UGLY Chea Leang, Xok An's niece

Reference ID: 06PHNOMPENH887
Created: 2006-05-09 09:48
Released: 2011-07-11 00:00
Classification: CONFIDENTIAL
Origin: Embassy Phnom Penh

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RUEHFR/AMEMBASSY PARIS PRIORITY 0531
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RUCNDT/USMISSION USUN NEW YORK PRIORITY 2139
RHHMUNA/HQ USPACOM PRIORITY
RUEHGV/USMISSION GENEVA PRIORITY 1427C O N F I D E N T I A L SECTION 01 OF 03 PHNOM PENH 000887

SIPDIS

SIPDIS

STATE FOR EAP/MLS AND S/WCI; GENEVA FOR RMA

E.O. 12958: DECL: 05/07/2016
TAGS: PGOV KJUS PREL CB
SUBJECT: KRT JUDGES NAMED: THE GOOD, THE BAD, AND THE UGLY


Classified By: A/DCM Margaret B. McKean; Reasons 1.5 (b) and (d).

¶1. (C) Summary. On May 7, the Cambodian Government
announced the names of the Cambodian and international judges
selected by the Supreme Council of the Magistracy and
approved by the King. The results are a mixed bag of good,
middling, and poor choices. Initial soundings within the
diplomatic community suggest that, while some missions are
unhappy over a few picks, no one at the moment is planning to
issue a negative statement. The Japanese Embassy met with PM
Hun Sen on May 8, and aired concerns over some names on the
list. The EU did the same in a private May 8 meeting with
Deputy Prime Minister Sok An. The list symbolizes a missed
opportunity for the RGC to put its best judicial face on the
proceedings, but at least a few of the best candidates did
make the cut. Both American names are listed in the reserve
categories. End Summary.

Judges Chosen: A Mixed Bag
---------------------------

¶2. (C) After months of waiting, the Cambodian government on
May 4 issued a Royal Decree naming the Cambodian and
international judges to the Khmer Rouge Tribunal. The final
decree follows very closely a list leaked to several NGOs in
early April. The names are as follows:

Judges in the Trial Chamber

Mr. Nil Nonn
Mr. Thou Mony
Mr. Ya Sokhan
Ms. Silvia Cartwright (New Zealand)
Mr. Jean-Marc Lavergne (France)

Reserve: Mr. You Ottara; Ms. Claudia Fenz (Austria)

Judges in the Supreme Court Chamber

H.E. Kong Srim
Mr. Som Sereyvuth
Mr. Sin Rith
Mr. Ya Narin
Mr. Motoo Noguchi (Japan)
Ms. Agnieszka Klonowiecka-Milart (Poland)
Mr. Chandra Nihal Jayasinghe (Sri Lanka)

Reserve: Mr Mong Monichariya; Mr. Martin Karopkin (U.S.)

Co-Investigating Judges

Mr. You Bun Leng
Marcel Lemonde (France)

Reserve: Mr. Thong Ol; International (to be announced)

Co-Prosecutors

Ms. Chea Leang
Mr. Robert Petit (Canada)

Reserve: H.E. Chuon Sun Leng; Mr. Paul Coffey (U.S.)

Pre-Trial Chamber

H.E. Prak Kimsan
H.E. Ney Thol
Mr. Huot Vuthy
Mr. Rowan Downing (Australia)
Ms. Katinka Lahuis (Netherlands)

Reserve: Mr. Pen Pichsaly; International -- none


Note: We have emailed separately to the desk on the
unclassified system the same list of names with what bio

SIPDIS
information we know on each of them.

Who's Who Among the Judges

--------------------------

¶3. (C) The best judges selected appear to be the

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investigating judge -- You Bun Leng (who currently sits on
the Appeals Court) and Supreme Chamber President Kong Srim
(Deputy General Prosecutor of the Appeals Court). Both were
listed by the Open Society Justice Initiative as "best" picks
among Cambodia's jurists. You Ben Leng has received strong,
favorable comments from a variety of NGOs and legal analysts.
The reserve prosecutor, Chuon Sun Leng is also a good pick,
as is You Ottara -- the reserve judge for the trial chambers.
Chuon Sun Leng is the Deputy Prosecutor General of the
Supreme Court while You Ottara is a Supreme Court judge. Nil
Nonn, President of the Trial Chamber was a good pick, albeit
not a standout choice. The UN Human Rights Office, however,
gave Nil Nonn high marks for cooperation with their office on
several cases of interest. Sin Rith, one of the choices for
the Supreme Chamber, is considered a good selection. Mong
Monichariya, a reserve judge for the Supreme Chamber, is also
highly thought of among NGOs. While some of the best picks
are on the Supreme Chamber, that chamber may see the least
action since it is an appeals body. (Note: The Japanese
Embassy was particularly irritated that as the Tribunal's
larges donor, the Japanese nominee was chosen for the
Supreme Chamber. The Japanese had wanted him to play a more
prominent role in the Trial Chamber. End Note.)

¶4. (C) In the bad ategory are included the other two

judges in the Trial Chamber -- Thou Mony, an Appeals Court

judge and Ya Sokhan. Both are considered politically biased
and not good picks. Thou Mony was one of the Appeals Court
judges who released Hun Sen's nephew in the appeals process
after the young man was convicted in a high-profile car
accident and a shooting incident that resulted in three
deaths. He also ruled on behalf of Ky Teck in connection
with tQpasQear's controversial Bar Association elections
that were highly criticized by Bar Association membership.
The Bar Association still remains moribund and divided. Ya
Sokhan has been disciplined by the Supreme Council of the
Magistracy (SCM) in 2005 and forcibly transferred to Bantey
Meanchey. Likewise, Huot Vuthy, one of the nominees for the
Pre-Trial Chamber, was also disciplined by the SCM and a
record placed in his personnel file. Both men appear to have
been sanctioned for holding detainees in jail beyond the
allowed period. Thong Ol (reserve investigating judge) is
considered very close to the CPP and presided over
independent radio producer Mam Sonando's defamation hearing
that sent Sonando to prison.

¶5. (C) In the ugly category is Ney Thol, the President of
the Military Court who had presided over last year's
political show trial of opposition parliamentarian Cheam
Channy -- a procedure that was legally flawed and roundly
criticized by the international community. Helen Jarvis has
countered criticism of Ney Thol's appointment by saying that
military law will be relevant to the proceedings and
therefore he is qualified to join the Tribunal. Sean Vissoth
has argued to us that Ney Thol has worked on the Ta Mok and
Duch (two detainees implicated in the Khmer Rouge genocide)
cases for the past 6-7 years. Ney Thol is a member of the
Pre-Trial Chamber, which will meet only to resolve
differences between either the co-investigating judges or the
co-prosecutors. While the pre-Trial Chamber has the potential
to play an important role in deciding who will be prosecuted,
respected Cambodian jurist Kim Sathavy suggested privately to
us that the body might play a very limited role. It is yet
to be seen.

¶6. (C) The Cambodian selection for prosecutor, Chea Leang,
is a niece by marriage to one of Sok An's cousins. Her
nomination has raised questions of nepotism; Helen Jarvis has
told us that the linkage to Sok An is not strong and
dismissed any notion that her nomination was orchestrated by
the DPM. Margo Picken of the UN Human Rights Office tells us
that she has been moderately cooperative with her office.
Likewise, the Japanese Embassy, which has some legal advisors
in Cambodia, believes that her appointment can be defended on
the basis of merit.

¶7. (C) The saving points are You Ben Leng as investigating
judge - a key position; and Nil Nonn as President of the
Trial Chamber. The two other Cambodian judges within the
Trial Chamber (Ya Sokhan and Thou Mony) are problematic.
Margo Picken and others point to the strong international
judges, particularly Dame Silvia Cartwright from New Zealand

PHNOM PENH 00000887 003 OF 003


as positive counterweights. The Pre-Trial Chambers where Ney
Thol and Huot Vuthy will be working is also weak.

What Others are Saying
----------------------

¶8. (C) Phnom Penh-based diplomats have privately expressed
disappointment with the choice of Ney Thol, but also some
relief that relatively good jurists were picked for some
important jobs. Margo Picken spoke for many in saying that
it was not the best possible list, but also not the worst.
The UN office here and the Canadian, German, French, British
and Japanese embassies have all told us they do not intend to
criticize the list publicly. That said, visiting EU
Ambassador Hamburger raised concerns about Ney Thol in a
meeting with DPM Sok AN May 8 and received no clear reply
except that the judges had met the criteria established in
the 2004 agreement with the UN. The Japanese Ambassador
raised concerns regarding some the Cambodian judicial
personnel with Prime Minister Hun Sen on May 8; Hun Sen
reportedly said that the selection process would have to be
addressed by the Minister of Justice, as the PM has remained
independent of the matter. (Comment: This is a bit of
dodge, given the PM's direct involvement in high profile
legal decisions in the past. End Comment.)

¶9. (C) Comment. While the judicial talent on hand in
Cambodia is quite limited, many had hoped that the Cambodian
government would use the KRT to turn a page on the country's
troubled legal system and present the best possible face of
the Cambodian judiciary -- one that would underscore the
government's stated commitment to judicial independence and
legal reform. However, the list of judges falls short of
Cambodia's judicial "dream team" and constitutes a missed
opportunity to rebut critics who repeatedly decried the
delays and lack of transparency in the selection process.
The presence of jurists who presided in highly political
cases -- especially Ney Thol who ruled in the widely
condemned Cheam Channy case -- provides further grounds for
suspicion of RGC commitment. NGOs like LICADHO and ADHOC
were not surprised by the list, saying the Tribunal has
always been about RGC control. The diplomatic community and
the UN are unlikely to publicly criticize the list, even if
they may express concerns privately. In sum, the Cambodian
judicial roster does not inspire the level of confidence in
the proceedings that we would have liked to have had at this
stage. However, it is too soon to prejudge how things will
play out once the Tribunal begins its work, when the dynamic
between Cambodian an international jurists will likely set
the tone for the proceedings. End Comment.
STORELLA