The monumental task of ensuring fair trials for remaining Khmer Rouge leaders may
be compounded by media outlets which observers believe opens under a longstanding
presumption of guilt.
Recent tribunal coverage has raised concern among court officials and leading members
of the Cambodian press who are worried that premature speculation may fuel unrealistic
public expectations-and that impartial or inaccurate reporting could jeopordize justice.
Many are asking whether an allegedly State-controlled media, operating under the
specter of defamation law, can provide the accurate and impartial coverage that a
highly complex and politically charged event such as the ECCC requires.
"This is a new chapter in Cambodian journalism," said Puy Kea, veteran
journalist and board member of the Club of Cambodian Journalists (CCJ). "The
media has a big job ahead of it."
According to legal experts, the presumption of innocence is one of the fundamental
legal principles of fair trial rights -but in a nation where nearly every citizen
can claim to be a victim, emotions run deep.
"The public has already judged the Khmer Rouge leaders who could be potential
suspects, not on legal grounds but on historical, experiential grounds," said
attorney Theary Seng, director of the Center for Social Development (CSD).
"The defense will have a field day with this."
Now, the concern is that the media as well as the public has already presumed the
guilt of certain potential suspects.
The front page of a leading Khmer-language newspaper on July 20 ran the headline
"Five Khmer Rouge Leaders Accused in the Introductory Submission." Underneath,
were five grainy headshots of what many have long considered "the usual suspects.'
In the United Kingdom, experts said, this could violate the Contempt of Court Act
which states "contempt is committed by any publication which creates a substantial
risk that the course of justice in the proceedings in question will be seriously
impeded or prejudiced. It would certainly be raised by the defense.
An introductory submission is by law a confidential document. In recognition of the
"need to ensure the public is duly informed," the ECCC co-prosecutors published
a summery of the document on July 19. No names were revealed to protect the "presumption
of innocence of the suspects."
"It is irresponsible for any paper to speculate on who is to be tried when the
court has not confirmed this information," said influential CTN news analyst
The paper has denied wrong-doing, arguing that nowhere in the article is it stated
that the five people in the front-page photographs have been accused by the ECCC.
"We published the photographs simply to inform our readership that these five
people are the only remaining Khmer Rouge leaders who are still alive," said
deputy editor-in-chief of the paper, Teav Sarakmony.
The names of "senior leaders" of the Khmer Rouge have long been in the
public domain, said Anne Heindel, a legal advisor at the Documentation Centre of
Cambodia (DC-Cam), which compounds the difficulty of ensuring the media will prosecute
prematurely in the court of public opinion.
"The general assumption that it is those people [named in the media] who will
be prosecuted," she said. "For example, Nuon Chea himself assumes he is
Widespread assumptions of guilt could raise expectations and, in the long run, seriously
harm the hybrid tribunal.
"Legal responsibility is a very different thing from moral responsibility as
it has to be proved," said Heindel. "This whole trial is about managing
The public's expectation that the individuals named in local and international newspapers
will be both charged and found guilty is unfounded, said Heindel. If there is not
sufficient evidence to make a legal charge stick, even the most allegedly notorious
suspects could walk.
"It would be very difficult to explain this to the Cambodian public," said
Heindel. "There needs to be a lot of work done over the next year to explain
the rights of the defense. The defense is not a role people have seen in the domestic
judicial process, so to see it in this context, when people have committed the worst
of all crimes, will be hard to understand. Everyone thinks 'they are guilty - why
not just list their crimes and be done with it.'"
According to Heindel, the ECCC needs to work with the media to ensure the court's
message is getting through.
The press, civil society and the NGO community are tasked with "managing"
the public expectations, said CSD's Seng.
But CTN's Sopheap said it would be the public's opinion of the court, not their expectations
of guilty verdicts, which would change.
"The Cambodian people know that Nuon Chea was Brother Number Two during the
Khmer Rouge regime," said Sopheap. "If the court does not find him guilty
then there will be a suggestion that the court is weak."