Khmer Rouge tribunal observers have welcomed a decision on Friday to continue pursuing – at least for now – a set of controversial cases against former leaders of the regime, but condemned co-investigating judges’ threats to prosecute leakers and journalists.
In a confidential document – a segment of which was obtained by The Post in May – the judges had suggested putting a “permanent stay” on Case 003 against alleged naval commander Meas Muth; Case 004, against Yim Tith; and Case 004/02, against Ao An.
Those cases, the judges proposed, would be shut down and permanently sealed for the “sole reason” of “lack of funding” – a suggestion that was met with deep scepticism in light of Prime Minister Hun Sen’s forceful objections to those cases.
In a statement on Friday, however, the judges said they “have decided to defer the decision on a stay of proceedings for the time being”, due to a “noticeable improvement in the funding situation” and responses from the UN, principal donors and the court’s office of administration.
The judges criticised leaks and the media for exposing the story, saying any future “breaches of confidentiality” must be prosecuted.
“The fact that unlawful leaks of confidential information at the ECCC have in the past been endemic and have gone virtually unpunished is not justification for continuing this disgraceful practice,” they wrote.
“[I]ndividuals, including journalists, may not – with impunity – publish information classified by judges as confidential on the basis of their own assessment of the public interest in that information. Such behaviour may endanger the integrity of the proceedings and reduce the public confidence in court’s ability to preserve confidentiality.”
Heather Ryan, of the Open Justice Society Initiative, said the threat to prosecute journalists was “most troubling”.
“[I]t represents a regressive and dangerous trend that should be rejected in favor of supporting the role of a free press in monitoring public institutions,” she said in an email. “Information published about the threat of the judges to ‘permanently stay’ their cases did not endanger judicial process, reveal investigative facts, or put the identity or safety of witness at risk. What it did was reveal an embarrassing and dysfunctional aspect of the court’s administration.”
She nevertheless said the decision to walk back, at least temporarily, “the threat to shutdown ongoing investigations” was a “positive development”, and the decision highlighted issues of voluntary funding and a draft US appropriations bill “indicating a preference for a specific outcome in a case under investigation”.
That draft proposed tying future US funds for the tribunal to Muth’s indictment, as he was allegedly implicated in the death of American soldiers in the Mayaguez incident of 1975.
The judges said the bill put them in a double bind with the US, which has donated $32 million to the tribunal.
“If we indict Meas Muth, court observers may say that we caved in to US demands; if we dismiss the case or do not indict for the Mayaguez incident, we risk the loss of major donor to the ECCC,” they wrote.
Muth’s son, Meas Sopheak, yesterday told The Post there was “no justice” for his 80-year-old father, while the Sunday Times yesterday reported Muth’s family had already prepared his coffin.
“My father is old . . . He forgot some things and so has lost the chance to give evidence,” Sopheak said.
The decision notes that while the defence teams for all three accused “supported a permanent stay at the earliest opportunity”, International Co-Prosecutor Nicholas Koumjian found the proposal “fundamentally unsound” and beyond the judges’ authority.
Muth’s defence lawyer, Michael Karnavas, said the decision was “part of the process, and there is no telling what the final outcome will be”.
“As for my client preparing for the afterlife, there is nothing unusual about it considering his age and health,” he said.
Craig Etcheson, a former investigator with the prosecution, said it was possible the “stay gambit” was “simply to nudge the donors to meet their obligations”. But he noted the “chronic funding problems have resulted in long-festering personnel issues” that made it challenging to carry out investigations.
“The charges were proposed by the international co-prosecutor in 2008, nearly a decade ago, and still, there have been no indictments, and for three of the accused, no dismissals,” he said, adding the accused had a right to a prompt trial.
“[I]t should [be] clear enough to everyone that cases 003 and 004 have been troubled for a very long time. I fear that in the end, what we have here will amount to ‘getting away with genocide’.”