Investigating judges at the Khmer Rouge tribunal yesterday jointly ordered the British prosecutor Andrew Cayley to retract a public statement he released this month, continuing a clampdown on information about an investigation of Pol Pot’s military.
The novel decision—which gave Mr Cayley three working days to comply—was another salvo in the battle over how to proceed with investigations that are opposed both by Prime Minister Hun Sen and the court’s Cambodian officers.
To support the investigation in the court’s Case 003, Mr Cayley on May 9 said the matter had not been fully investigated and he revealed the broad scope of allegations under review—an invitation to untold numbers of people to seek reparations as victims.
Revealing the extent of the investigating judges’ inactivity, the statement also announced that Mr Cayley planned to ask that the suspects be questioned and charged.
Judges Siegfried Blunk and You Bunleng concluded their investigation on April 29 after conducting no field investigations and without questioning the suspects, former navy commander Meas Muth and air force commander Sou Met, whom the court has not identified publicly.
Yesterday’s order coincided with a deadline both for the public to come forward seeking reparations in the case and for Mr Cayley to submit requests for additional acts of investigation.
The order fell short of imposing sanctions on Mr Cayley for contempt of court, an action the investigating judges were reportedly considering last week. As a judicial officer, Mr Cayley enjoys legal immunity for all official acts.
William Smith, Mr Cayley’s deputy, said yesterday that the UN side of the Office of the Co-Prosecutors was considering an appeal before the court’s Pre-Trial Chamber. No decision had been received yet on Mr Cayley’s request to extend yesterday’s deadline for civil party applicants by six weeks, he said.
“We felt that the statement was provided for in the rules and was made so that victims have the opportunity to exercise civil party rights,” said Mr Smith. “The co-prosecutor and the [co-investigating judges] obviously have a different opinion.”
Yesterday’s decision provided scant legal reasoning and it was unclear what effect any retraction could have given that the information was published ten days ago–possibly invoking the American legal dictum that, once heard, a bell is difficult to “unring.”
The court’s prosecutors are permitted to release public information and Mr Cayley’s statement recalled that, under court procedure, judges are required to investigate prosecutors’ allegations.
But the order found that Mr Cayley had gone beyond what was permissible in that he was not permitted “to express publicly his opinion about ‘crimes required to be judicially investigated.'”
The finding suggested that the judges may believe they are not required to investigate prosecutors’ allegations in Case 003.
Judges Blunk and Bunleng also found that Mr Cayley had violated the confidentiality of the investigation by “informing the public in advance and in detail” about the actions he intended to ask the judges to take.
The judges identified no specific harm that Mr Cayley’s actions could have caused to their investigation, which was concluded almost three weeks ago, but said his actions had to be undone “to restore public confidence in the legality and confidentiality” of the matter.
The judges are reportedly executing a plan to do away with cases 003 and 004, which concern hundreds of thousands of victims of alleged genocide and crimes against humanity, causing court monitors to fear that the tribunal may in effect whitewash these crimes.
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