Summary of the Certification Related to the Khmer Rouge Tribunal, 78463-78466 [2013-30819]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 78, Number 248 (Thursday, December 26, 2013)]
[Notices]
[Pages 78463-78466]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30819]


=======================================================================
-----------------------------------------------------------------------

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.

[[Page 78464]]

[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]
BILLING CODE 4710-30-P