At the request of the co-investigating judges, the Khmer Rouge tribunal has declassified dozens of documents dating from Case 002’s pre-trial period over the past few days, documents which illustrate the many questions that remained unanswered as the court prepared to try the regime’s most senior leaders.
The documents, all filed between March of 2008 and September of 2010, deal with a diverse set of issues, but do little to explain why the documents were classified as confidential in the first place.
Some of those issues, such as that of evidence extracted under torture, continued to dog the trial on into its proceedings.
The Office of the Co-Investigating Judges had argued, in part, that such material was not prohibited by the court’s internal rule on the matter, which “concerns statements obtained by the organs of the ECCC, rather than statements obtained by the officials of the Communist Party of Kampuchea . . . whose actions occurred more than 30 years ago”.
The defences for Khieu Samphan and Ieng Thirith, however, challenged the assertion – in filings they recommended be public, but which were classified by the pre-trial chamber – only to have the appeals overturned.
Later still, the court’s trial chamber overturned that ruling, though the matter continued to arise in court, in one instance prompting former Nuon Chea defender Andrew Ianuzzi to object in characteristically flamboyant fashion to portions of a witness’s testimony based on torture-tainted confessions.
“As Duke Ellington said, there are two kinds of music, good and bad,” he said. “I think there are two kinds of evidence, and this is clearly bad evidence.”
Also included in the declassified documents are the Ieng Sary defence’s attempts – also in filings they recommended be made public – to challenge the court’s authority to try certain crimes, such as grave breaches of the Geneva Convention, against which adequate laws did not exist at the time of the Democratic Kampuchea regime, they argued.
The challenge was overruled, but according to Open Society Justice Initiative tribunal monitor Heather Ryan, there is a clear need to voice such challenges in the early stages of a trial.
“Because this happened so long ago, it’s important for the court to determine what the status of international law was at the time crimes were committed,” she said. “Things that are clearly a violation of law today may not have clearly been violations to the accused persons in 1975.”
However, what’s unclear, she said, is why much of the recent cache of published documents was ever kept secret, which she called “a bit of a concern”.
Nonethless, she said, the release is “good; it increases transparency.”
“I’m in favour of that. But it doesn’t offer any more transparency as to what’s going on in the office of the co-investigators as to the investigations of cases 003 and 004.”