The Cambodian story that raced across the world last week was of former Khmer Rouge prison chief Kaing Guek Eav, alias Duch, weeping at the scene of his alleged crimes, sunk in prayer before a stupa of skulls at the Choeung Ek killing fields.
It was almost too perfect a story of sin and redemption—Duch’s tears apparently signaling atonement, and his search for forgiveness.
But did Duch actually weep?
The narrative for the headline-grabbing story began with a comment by Khmer Rouge tribunal spokesman Reach Sambath, who told reporters that he had seen Duch with tears running down his face as he toured the pitted fields where some 20,000 men, women and children are thought to have been executed.
Duch’s lawyer, Kar Savuth, confirmed that his client had been moved to tears.
But tribunal Co-Prosecutor Robert Petit and Co-Investigating Judge You Bun Leng, both present during Duch’s tour of the killing fields, said they had not seen Duch cry.
No one but the 80-odd Khmer Rouge tribunal officials, witnesses and victims present at last week’s on-site reconstructions—and of course Duch himself—will ever know for sure whether tears welled in his eyes or flowed down his cheeks.
Journalists were strictly prohibited from covering Duch’s visit to Choeung Ek and the following day police apprehended and questioned a foreign reporter for two hours and deleted photographs she had taken of Duch’s visit to Tuol Sleng prison. The same day, a tribunal spokesman told an international photographer that if he published photographs of Duch, the tribunal would blacklist him.
Under the court’s internal rules, anyone—whether a court employee or not—who violates judicial orders can be penalized by the Extraordinary Chambers in the Courts of Cambodia itself or referred to Cambodian or UN authorities for disciplinary action, tribunal Public Affairs Chief Helen Jarvis said.
The story of Duch’s tears illustrates the difficulty the ECCC faces in keeping a secret judicial process sealed against 30 years of public thirst for information. Journalists have also begun asking themselves how far they will dare to go in their professional mission to inform that public.
“We are very concerned about this growing tension between the press and the tribunal officials,” Vincent Brossel, head of the Asia-Pacific desk of Reporters Sans Frontieres, wrote in an e-mail from Paris.
Such tensions have been common at other war crimes tribunals, particularly for Yugoslavia and Rwanda, Brossel wrote.
“It is a difficult and complex question because freedom of information and protection of the legal process are two important rights and principles,” he wrote.
But he added: “It will be shocking to get reporters blacklisted or prosecuted. To avoid such extreme, the ECCC must provide real access to the information [for] the press [including photographers and cameramen] and not only when they want.”
Mike Fowler, a US attorney who has spent more than a decade studying Cambodian media law, said he does not know of any Cambodian law that would clearly allow for prosecution for publishing a photograph related to the activity of the tribunal. The ECCC, however, does have the power to impose its own punitive measures against members of the media.
“The ECCC’s internal rules apparently give the court the authority to impose sanctions, including exclusion from the proceedings. Cambodian law has no similar provisions,” Fowler said.
Jarvis declined to comment on what Cambodian laws might apply if the tribunal called for action against a journalist, emphasizing that for now all such possible sanctions remain “hypothetical.”
Jarvis said the court has struck an admirable balance between freedom of information and judicial secrecy.
“We’ve received over 20,000 visitors to the court. We’ve distributed over 100,000 booklets. We’ve been involved in film showings tens of thousands of people have seen on TV. Hearings have been broadcast live. I think we’re setting a very good example, not only in Cambodia but internationally for public access to a court,” she said.
Khieu Kola, who sits on the board of directors of the Cambodian Club of Journalists, said he believed the ECCC could still be more open, without impinging on the judicial process.
“Without a free press, the ECCC is not going smoothly,” he said.
“The ECCC belongs to all Cambodian people. It belongs to all the victims. It belongs to the world.”
Ek Madra, a local reporter who managed to make his way briefly to the perimeter fence at Choeung Ek on Tuesday and look at Duch through his binoculars, before being told to leave, said the issue of access is a professional one.
“They should allow us to get closer to Duch. We don’t know exactly what he was saying, just from the spokesman,” Ek Madra said.
“We have to go to the first source [of information]. I don’t want to go to the second source,” he added.