Judges order website closed, or risk ‘legal consequences'
A gate outside the courtroom at the ECCC. Critics say the court should strive for greater transparency, not hide behind closed doors.
INVESTIGATING judges at Cambodia's war crimes tribunal have issued an order to shut down a website set up by defence lawyers for Ieng Sary, threatening them with sanctions and fuelling a debate over confidentiality at the UN-backed court.
A press release from the Office of Co-Investigating Judges (OCIJ) Tuesday stated that the website, set up in December, had been in clear breach of confidentiality rules at the court by allowing the public access to documents considered confidential.
It added that if content was not removed within 48 hours, the lawyers could face legal consequences.
"The co-investigating judges have ordered that the defence lawyers immediately cease to publish any documents relating to the judicial investigation, other than those already published on the ECCC website; and remove any such documents from the Defence website within 48 hours, or face sanctions for a new offence," it said.
The order claimed that a decision was made in accordance with the court's rules, which state that "[i]n order to preserve the rights and interests of the parties, judicial investigations shall not be conducted in public".
Lawyers from the Ieng Sary defence team Tuesday said they were willing to cooperate with the judges but would not shut the site down.
"We intend to cure whatever error or misunderstanding there may be, but we do not intend to shut down the website," co-lawyer Michael Karnavas told the Post by email.
"We are miffed that the OCIJ did not contact us last week when I was there. We would have welcomed an exchange of views," he added.
"In any event, we have no intention to act contemptuously, but we will also not refrain from making the process more responsive and transparent."
Cambodian co-lawyer Ang Udon told the Post Tuesday that his team had received no warning about a breach of confidentiality or possible sanctions, but said it was unable to comment further
until he had spoken to his team.
The website was set up by the lawyers in reaction to what they saw as a deliberate suppression of defence filings that were embarrassing or "which called into question the legitimacy and judiciousness of acts and decisions of the judges", the site claims, citing a letter to the ECCC Deputy Director of Administration Knut Rosandhaug in December.
"...the current practice by the Judicial Chambers and Co-Investigating Judges at the ECCC, of suppressing Defence filings ... under the fig leaf that these are necessary measures to protect the supposed confidentiality and integrity of the investigation or judicial decision-making process, must be discontinued without exception," the letter, reproduced on the site's main page, states.
Andrew Ianuzzi, a legal adviser to the defence team for Brother No 2 Nuon Chea, said the issue was further evidence of a reluctance by judges at the court to make documents readily available.
"Despite the confidentiality of the investigation, the ECCC is a public institution. The OCIJ is clearly failing in its role to keep the public informed about developments in the investigation," he told the Post Tuesday.
He also said judges were upholding a double standard with regard to what they deemed public information.
"I'm not sure why the OCIJ has decided to single out the Ieng Sary defence team. I can tell you that other organs at the court - including the [pretrial chamber] and the OCIJ itself - have revealed certain pieces of information that could be classified as confidential under the OCIJ's current definition of the concept," he said.
...The OCIJ isclearly failing in its role to keep the public informed.
"In the case of the OCIJ, I'm thinking in particular of the distribution of the unredacted version of the closing order in case file 001 to certain NGOs. In the case of the [pretrial chamber], I have in mind the revelation in a public decision of portions of [detainee] Duch's presumably confidential statements to the OCIJ. Of course, this raises the issue of whether standards are being uniformly applied," he added.
Michelle Staggs Kelsall, a court monitor for the East-West Centre's Asian International Justice Initiative, said that, although it is the judges' right to uphold internal rules, the court risked setting a bad example if it did not also consider its broader role as an international institution.
"The threat of sanctions is an overly harsh determination, given that the defence lawyers were clearly acting in the interest of transparency.
Counsel should certainly have the right to reply before threats are given," she said.
"As an internationalised tribunal ... it is in the court's interest to, so far as possible, make documents available to the public. ... Given that a primary function of the court is to provide a model process for other Cambodian courts, the more transparent that process is, the better."
Co-investigating Judge Marcel Lemonde has previously recognised the educational value of releasing portions of confidential investigations in other forums.
Writing on the French judicial system for academic publication, he has noted that flagrant breaches of confidentiality by the French Ministry of Justice resulted, paradoxically, in "documents of real educational value" being open to the French public.
"Arguably, this [availability of documents] would be of even greater significance in the Cambodian context, given the country's legal system is in its embryonic stage of development," Staggs Kelsall said.