After Pledge, Judges Publish Pleadings on ECCC Motion

Following public calls for greater openness and transparency, judicial investigators at the Khmer Rouge tribunal on Thursday announced they were publishing pleadings concerning a defense motion seeking to prevent the court’s defendants from being held jointly responsible for crimes.

In their strongest admonishments to a defense team yet, the tribunal’s Co-Investigating Judges You Bunleng and Marcel Lemonde earlier this month threatened to sanction the defense lawyers for former Khmer Rouge Foreign Minister Ieng Sary for allegedly violating the secrecy of their client’s investigation by publishing legal documents on an independent website.

Despite ordering the documents’ removal from the website on March 3, Lemonde and You Bunleng nevertheless pledged greater openness.

In a statement Thursday, they said that “with the aim of improving public information whilst respecting the protection of privacy and the presumption of innocence,” they were publishing documents concerning a July motion by the Ieng Sary team.

Lawyers Michael Karnavas and Ang Udom in July called for a public hearing on a motion they submitted to Lemonde and You Bunleng in which the defense said the use of the prosecutorial doctrine known as “joint criminal enterprise” risked unfairly “spreading the stain” of responsibility for Khmer Rouge crimes onto nearly the entire Cambodian ruling class, including Prime Minister Hun Sen and retired King Norodom Sihanouk. Prosecu­tors responded in August by arguing the Ieng Sary team had needlessly sought to politicize the court’s work. Lemonde and Bunleng have yet to rule on that defense motion.

Though widely used at the International Criminal Tribunal for the former Yugoslavia in The Hague, the joint criminal enterprise doctrine is the subject of fierce debate because under one variant, suspects may be held responsible for acts carried out by others, including unintended acts that could be a “foreseeable outcome” of a common criminal plan.

Prosecutors last month an­nounced their intention to reargue the use of the doctrine after the tribunal’s Pre-Trial Chamber declined to alter the indictment of S-21 prison chairman Kaing Guek Eav to include charges under joint criminal enterprise.


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