In a private meeting with NGOs on Monday, the Khmer Rouge tribunal’s British co-Prosecutor Andrew Cayley warned that journalists would be liable to criminal prosecution if they disclosed confidential information from the court.
Mr Cayley also said he would seek in the future to take legal action for “contempt of court” against members of the news media who publish information from secret court documents, according to four people present at the meeting who spoke on condition of anonymity due the confidentiality of the meeting.
In an e-mail on Tuesday, Mr Cayley said requests for comment would be handled by the court’s administration. However the court’s office of public affairs had by yesterday evening not responded to questions submitted on Tuesday.
Mr Cayley’s remarks were made only in passing as part of an encounter with NGO representatives that lasted for over an hour, according to those present, several of whom later expressed surprise at the prosecutor’s remarks.
Like all jurisdictions, the Khmer Rouge tribunal imposes secrecy on large amounts of information in order to protect the presumption of innocence and the security of witnesses, to allow judges and investigators to operate undisturbed and to create confidence in the court process, among other reasons.
Mr Cayley, who was sworn in as the tribunal’s international co-prosecutor in February after 11 years at The Hague, appears to have taken a tougher stance against breaches of confidentiality than other jurists at the court.
Helen Jarvis, former chief of public affairs, told reporters in 2008 that “any person” could be subject to punishment for knowingly violating the court’s secrecy. Photographers covering a reconstruction of events at Tuol Sleng that year were threatened with blacklisting if they published photographs of the event.
But so far the tribunal has not sought to take action against any of the domestic and foreign journalists who have consistently disclosed information deemed confidential since even before the court began operations in 2007.
Unlike other jurisdictions, the Khmer Rouge tribunal functions in three languages and staff sometimes say it “leaks like a sieve.” Pleadings and decisions of a confidential nature routinely appear in local newspapers.
Information about the planned arrest of Nuon Chea and secret allegations from the prosecution were both leaked to reporters in 2007. Similarly, sensitive documents were published concerning defense requests to summon Prime Minister Hun Sen and retired King Norodom Sihanouk as witnesses. An unknown person using an e-mail account under a fictitious name distributed the documents to reporters.
In 2008, the court itself inadvertently distributed confidential material in the form of copies of an unredacted version of the indictment of Tuol Sleng Chairman Kaing Guek Eav. The names of witnesses were exposed on the Internet for several days but media outlets quickly complied with requests to suppress this information.
In his remarks to NGOs on Monday, Mr Cayley reportedly did not name the reporter whom he said he had warned of prosecution for contempt of court. But in an e-mail in April, Mr Cayley said that publication of a pleading he had written on defense motions to summon witnesses could lead to criminal penalties.
Mr Cayley had himself requested that that the document in question be made public. However the court classified it as confidential.
“There may be criminal legal consequences to publication of this document,” he wrote on April 18, asking that his remarks be included in any article that The Daily publishes on the pleading.
The court’s Pre-Trial Chamber on Tuesday rendered a decision in the matter of the defense motions regarding the summonsing of witnesses. However this decision is also confidential.
Asked in April to specify what laws would allow the Khmer Rouge tribunal to prosecute journalists, Mr Cayley referred instead to September’s prosecution of Florence Hartmann, a former spokeswoman for prosecutors at the Yugoslavia tribunal who was fined 7,000 euro, or about $8,400, for having published confidential information relating to the trial of former Yugoslav President Slobodan Milosevic.
Procedural rules at the Yugoslavia and the Cambodia tribunals empower them to hold “any person” in contempt.
However, contempt of court may be a different matter in Phnom Penh than it is at The Hague. The Khmer Rouge tribunal’s procedures, which were not adopted by the National Assembly, have yet to be tested by being applied to ordinary members of the public who are governed by Cambodian law.
The tribunal’s rules explicitly contemplate referring contempt matters to Cambodian authorities or to the UN. But under Cambodian procedural law, only participants in criminal investigations, not journalists, are explicitly called on to maintain secrecy.
Neither the Untac penal code of 1992 nor the new Cambodian penal code adopted in September appears to contain any statute to punish the media for publishing court documents. While the Press Law of 1995 says there is no protection for publishing court secrets, it prescribes no penalty for this either.
Cambodian judges and prosecutors are also routinely quoted by the news media concerning matters that would in normally be considered secret or subject to pending judicial decisions.
Thierry Cruvellier, a journalist who has covered war crimes tribunals in Rwanda, Sierra Leone, Cambodia and Bosnia and Herzegovina, said this week that the prosecution of reporters at international tribunals was a trend that defied the very reason the courts exist.
“This is an extremely worrying trend because they limit more and more the freedom of access to information and apply standards that clearly do not apply in every country where the rule of law applies,” he said.
“The fact that the court in Cambodia would follow that path is even more worrying because in the context of Cambodia the ECCC legitimizes in a way the use of the judiciary to repress or limit access to information or freedom of the press.”
Mr Cruvellier was present at Monday’s meeting with Mr Cayley but declined to comment on it due to its confidentiality.
Mr Cruvellier said he had himself been the subject of a secret contempt proceeding at 2002 at the Rwanda tribunal, which is in Tanzania, for having disclosed the name of a witness in the investigation of Colonel Theoneste Bagosora, who was given a life sentence for genocide in 2008.
Mr Cruvellier revealed that the witness, Pierre-Claver Karangwa, himself fell under suspicion of crimes during the Bagosora investigation.
However Mr Cruvellier said the prosecutors’ contempt motion against him was dismissed.
In the context of Cambodia, the prosecution of journalists, supported by UN officials, could set a poor precedent, he said.
“It is clear that this is not the kind of model that was expected of the internationals in particular when they sue journalists,” Mr Cruvellier said.
“In the context of Cambodia, if there were such cases that were supported by the internationals at the court, it would probably defeat the reason why the internationals are involved in the tribunal.”