Former Khmer Rouge head of state Khieu Samphan and his lawyers want his pretrial detention hearing at the Extraordinary Chambers in the Courts of Cambodia to be open to the public, but prosecutors have objected.
“We—Verges and I and my client—want a public hearing,” attorney Say Bory, who represents Khieu Samphan with French lawyer Jacques Verges, said recently.
He added: “We have nothing to hide. When we are sure of Khieu Samphan’s innocence, we don’t have fear of a public hearing.”
Prosecutors, however, maintain that the hearing must be secret because the defense’s arguments deal with evidence that has yet to be made public.
“The problem is that lawyers for Khieu Samphan chose to ignore the basic legal tenet of the civil law system. In their appeal they call for a review of facts that are confidential,” ECCC Co-Prosecutor Robert Petit said.
Khieu Samphan was arrested in November on charges of crimes against humanity and war crimes. His appeal against detention has not yet been posted on the court’s Web site.
Comparable hearings for Nuon Chea, Pol Pot’s deputy, and Kaing Guek Eav, alias Duch, who headed the notorious S-21 torture prison, were open to the public.
The internal dispute raises long-simmering issues about how open the Khmer Rouge tribunal can—and should—be.
Judicial officials are quick to point out that by law the long investigative phase now unfurling must be secret, in part to protect witnesses and preserve the presumption that defendants are innocent.
But many court observers and some within the court itself argue that even within those strictures, the tribunal could go much farther towards opening itself, thus helping slake the public’s thirst for
“The Khmer Rouge said secrecy is the key to victory. High secrecy is long survival,” Documentation Center of Cambodia Director Youk Chhang said Tuesday. “Secrecy, to us, we’ve had enough. People want to be free, to understand, to move on. We’ve been intimidated by it for so long. The court needs to look at this legacy of survivors.”
The tribunal’s principal defender, Rupert Skilbeck, said the court seems to be operating under a “presumption of secrecy.”
“Everything about the ECCC is secret. At some point, the court has to define that more clearly so they have a better balance between people’s need for secrecy and the need for an open trial,” he said.
The tribunal’s UN Public Affairs Officer, Peter Foster, called charges that the court is too opaque “nonsense.”
Foster said the office that issues a document declares whether it should be public or not. Tribunal Pre-Trial Chamber judges then must vet that designation before a document is released.
“This court is maintaining transparency the likes of which have never been seen before. We are making every effort to publicize documents as quickly as possible,” he said.
Petit said judges could choose to be more open.
“We have always maintained that things should be in public as much as possible,” he said. “The judges have the power to further open it up if they want to,” he added. “It’s a question of timing.”