For the second time in as many months, pretrial judges at the Khmer Rouge tribunal yesterday warned of sanctions for publishing or leaking confidential information from the court’s investigations.
The warning came as the court’s Pre-Trial Chamber is also expected to rule on politically sensitive defense motions seeking to disqualify judges and demanding the testimony of high-level members of the ruling party and King-Father Norodom Sihanouk.
The co-investigating judges, whose work is governed by the Pre-Trial Chamber, are preparing to issue indictments for four of the court’s remaining suspects.
Since 2007, the court has attempted to enforce the secrecy of its pretrial proceedings, which require a greater level of confidentiality than at other war crimes courts where investigations are not conducted by judges.
Defense lawyers have in some cases openly flouted the court’s instructions, saying public scrutiny was required to ensure the proper functioning of the court and that judges had unfairly withheld pleadings that only contained either legal reasoning or matters of common knowledge.
However, the Pre-Trial Chamber’s five judges unanimously found against these concerns, saying that secrecy was required to protect the integrity of investigations and the rights of all sides.
“The fact that specific evidence is being considered by the co-investigating judges as part of the investigation, irrespective of the content of such evidence, is confidential information,” the judges wrote.
Yesterday’s directive repeated warnings that “any person” found to have breached the court’s secrecy could be sanctioned either by the court or Cambodian authorities. They also warned that lawyers may be denied the right to address the court and that judges may, if necessary, strike names from the list of people to whom court documents are distributed.
The judges did find that lawyers may request that certain documents be published by the court and that judges may hear arguments about this.
An apparent final warning, yesterday’s directive raised the temperature of proceedings at the court, where prosecutors, defense lawyers, monitors and legal observers have repeatedly called for greater transparency in matters not directly concerning the work of investigators.
In an essay published Tuesday, Krista Nelson, an intern at the Documentation of Cambodia, said the court appeared inconsistent in its determinations of which information to publish and which to keep secret.
Ms Nelson also wrote that while the court justified its secrecy with the need to protect witnesses and parties to the trials, the court had denied any right to waive such confidentiality.
“[I]n many cases […] there appear to be few reasons why the public distribution of information regarding accused persons was forbidden,” she wrote.
“An analysis of both the co-investigating judges’ release of information to the public and the Pre-Trial Chamber’s allowance of public hearings reveals a seemingly arbitrary basis for granting public access to information.”