2010-7631. Certification Related to the Khmer Rouge Tribunal Under Section 7071(c) of the Department of State, Foreign Operations and Related Programs Appropriations Act, 2010 (Division F, Pub. L. 111-117)

Pursuant to the authority vested in the Secretary of State, including under Section 7071(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act (SOFAA), 2010, and Delegation of Authority 245-1, I hereby certify that the United Nations and Government of Cambodia are taking credible steps to address allegations of corruption and mismanagement within the Khmer Rouge Tribunal.

This Certification and related Memorandum of Justification shall be provided to the appropriate committees of the Congress and published in the Federal Register.

Dated: March 23, 2010.

Jacob J. Lew,

Deputy Secretary of State.

Memorandum of Justification Under Section 7071(c) of the Department of State, Foreign Operations and Related Programs Appropriations Act, 2010

Section 7071(c) of the Department of State, Foreign Operations and Related Program Appropriations Act, 2010 (Div. F Pub. L. 111-117) provides that funds appropriated in the Act for a United States contribution may only be made available if the Secretary of State certifies to the Committees on Appropriations 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 (ECCC), also commonly known as the “Khmer Rouge Tribunal” (KRT). Deputy Secretary Lew has signed the certification pursuant to State Department Delegation of Authority 245-1.

Factors Justifying Determination and Certification

In late 2008 the former Director in the ECCC Office of Administration, the person in charge when allegations of administrative corruption at the court first surfaced, was put on indefinite medical leave, effectively removing him from the court. His replacement, the current Acting Director, is considered to have shown himself a competent Administrator who has cooperated well with the donor community, other court officials, and the United Nations Office of Legal Affairs. The Deputy Administrator, selected by the UN and a person with many years of administrative experience, has a constructive working relationship with the Acting Director and plays an active and positive role with the UN and the donor community. Since before the departure of the ECCC Director of Administration, there have been no reports alleging new instances of corruption at the Khmer Rouge Tribunal. In the view of the State Department, other countries in the donor community, prominent court officials, and non-governmental organizations (NGOs), the court appears corruption-free at this time.

These administrative corruption allegations did not compromise the fundamental integrity of the court. In November of 2009 the court successfully concluded Case 001—the trial against the former chief of the Tuol Sleng torture center, Kaing Guek Eav (“Duch”). His trial was the first meaningful attempt to hold a Khmer Rouge official accountable for war crimes committed under the Khmer Rouge regime. The United States, foreign governments, and NGOs monitoring the court agree that proceedings met international standards of justice.

Most recently, the investigative phase of Case 002, against four surviving senior leaders of the Khmer Rouge regime, was closed. Motions and appeals are now being heard in accordance with the rules of the court, and an indictment is expected in the fall of 2010.

In August 2009 the United Nations Office of Legal Affairs and the Government of Cambodia reached agreement to establish an Independent Counsellor to serve as a deterrent against corruption and address potential future incidents of corruption or other forms of misconduct at the court. By mutual agreement Uth Chhorn, the Cambodian Auditor General, was selected to serve this role. To date the Independent Counsellor has established his own office, with a direct phone line and e-mail for receiving complaints confidentially. Last November he released a “Meet the Independent Counsellor” document to all court staff explaining his role, how he can be reached, and when he should be contacted. The circular outlined his roles and responsibilities, which include provision of an annual report to the UN Office of Legal Affairs and the Cambodian Government. Recently these two parties have also finalized more detailed operational guidelines, and the Independent Counsellor met with administrators, court staff, and the diplomatic community to further explain his role and highlight his commitment to protecting the identities of complainants and ensuring that there would be no reprisals against whistle-blowers. The United States, in coordination with other donor nations, is conducting ongoing diplomatic efforts with both the United Nations Office of Legal Affairs and Government of Cambodia to assist in making the Independent Counsellor fully operational.

The United Nations Office of Legal Affairs and Government of Cambodia have also recently reached agreement on a new international co-prosecutor—Andrew Cayley of the United Kingdom. He has been well received by the donor community and NGOs, and has over a decade of experience in international justice, having worked at the International Criminal Tribunal for the former Yugoslavia, International Criminal Court, and Special Court for Sierra Leone. The selection of Andrew Cayley is another indicator of ongoing cooperation between the two parties and their willingness to work constructively together to advance the court.

As a result of its first contribution of $1.8 million in 2009, the United States is playing a leadership role with respect to oversight of the court by currently serving as the chair of the KRT Steering Committee, a position which rotates on a quarterly basis. The United States also plays a leading role in the donors group in Phnom Penh, Cambodia. An additional contribution will indicate an ongoing commitment to the work of the court, and improve our position in discussions at the Steering Committee and with other current and potential donors.

Last month, the KRT's budget was approved. The budget reflected good management practices, including meaningful and realistic projections of the timelines for completion of the court's caseload. The State Department had an opportunity to review and approve the budget during its consideration by the Steering Committee and was satisfied that it was administratively and financially sound.

The KRT provides a monthly report to the UN Controller and the UN Department of Economic and Social Affairs, which closely monitors the activities of the court including its expenditures. In addition, all hiring on the international side of the court is vetted by the UN Department of Economic and Social Affairs. The UN Office of Legal Affairs actively engages on judicial management issues, such as shifting the pre-trial Chamber to sit on a full-time basis in order to improve the efficiency of the court and to expedite its decision-making.

Certification and United States Policy Objectives

Certification recognizes the efforts of the United Nations and the Government of Cambodia to address allegations of corruption and mismanagement within the tribunal. It is not an indication, however, that no further work needs to be done. Both parties must continue to exercise oversight of court operations, and the donor community and NGOs must continue their vigilant engagement with the United Nations and Cambodian government to ensure that the Khmer Rouge Tribunal remains corruption-free and well-managed.