Protecting Confidential Investigations or Gagging the Press? Freedom of Expression and Interference With the Administration of Justice at the Extraordinary Chambers in the Courts of Cambodia

• Publication year: 2011
• Citation: Vol. 35 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 35, No. 1FALL 2011

Protecting Confidential Investigations or Gagging the Press? Freedom of Expression and Interference with the Administration of Justice at the Extraordinary Chambers in the Courts of Cambodia

Krista L. Nelson(fn*)

I. Introduction

At first glance, Tuol Sleng is like any other school in one of Phnom Penh's quiet neighborhoods. Open-aired walkways connect classrooms and benches line sidewalks where children once played. Yet, to museum visitors, the legacy of the Khmer Rouge quickly becomes apparent. Barbed wire lines every entrance, and exercise equipment once used to torture victims still stands in the small courtyard. In former classrooms, blood stains the floor of prison cells, where metal rods and chains used to inflict terror lie untouched, as if it was only days ago that Khmer Rouge soldiers fled upon the invasion of Vietnamese troops.(fn1)

Tuol Sleng, called S-21 when it was converted into a Khmer Rouge detention center, was but one security center of the Khmer Rouge regime that seized control of Cambodia on April 17, 1975.(fn2) In the four years that followed, an estimated two million Cambodians perished under the radical communist state of Democratic Kampuchea (DK).(fn3) In an effort to transform the country into a classless society void of money and private property, the Khmer Rouge evacuated city dwelling "new people" to the countryside, where they were forced to adopt the infamous black clothing of the regime and labor in the rice fields.(fn4) "Angkar Padevat," the anonymous DK government, demanded fierce loyalty-Khmer Rouge cadres executed intellectuals, past government officials, and other suspected traitors without hesitation.(fn5)

Inside the walls of S-21 prison, an estimated 14,000 people(fn6) were tortured and killed under the command of Duch, the prison's infamous leader.(fn7) Thirty-one years later, in July 2010, Duch was found guilty in Case 001 before the Extraordinary Chambers in the Courts of Cambodia (ECCC),(fn8) a hybrid United Nations and Cambodian-run tribunal established to prosecute the high-ranking Khmer Rouge officials most responsible for the horrific crimes that impacted nearly every Cambodian.(fn9)

Though Cambodians waited over thirty years for justice, during the judicial investigation, the public was largely deprived of information related to the ECCC's case. In 2008, Duch's return to Tuol Sleng and the Killing Fields-a mass grave in a remote area outside Phnom Penh-as part of the judicial investigation drew widespread attention.(fn10) Both the public and members of the media arrived in large numbers to witness the historical event. Yet, upon arrival, reporters were stopped by antiriot police, who guarded the premises with AK-47s and barricaded the streets.(fn11) The ECCC Co-Investigating Judges forbade members of the press and others from observing the events and ordered that Tuol Sleng be closed to the public.(fn12) Those reporters who managed to get close to the event were warned by tribunal officials that if information appeared in the local media, those responsible would be blacklisted from the court.(fn13) Police questioned reporters for hours, destroyed photos, and warned about the dangers of breaching the confidential judicial investigation.(fn14)

But Tuol Sleng is now a museum open to the public, where visitors are free to roam the halls and encouraged to learn more about Cambodia's dark history(fn15) and Duch, a notorious man whose identity was far from secret at the time of the investigation.(fn16) Why the media was totally excluded is uncertain, for the judges gave no clear reasoning for the closures.(fn17)

The restrictive media access at the Tuol Sleng visit was not an isolated event, but only one instance in a series where the ECCC has restricted public information and shrouded the court in secrecy. Yet, beyond bringing senior leaders of the Khmer Rouge to justice, the ECCC, operating as a unique hybrid court, has two broad goals that highlight the importance of public participation and investment in the tribunal: (1) to serve as a means of national reconciliation for the Cambodian people,(fn18) and (2) to serve as a model for the domestic Cambodian legal system.(fn19) The public's lack of information regarding the tribunal's proceedings threatens to hinder the ECCC from achieving its objectives, and the court may leave a legacy of corruption rather than one of justice.

The ECCC's strict presumption of confidentiality during pretrial investigations serves not only as a barrier to achieving justice but also to decrease public investment in the tribunal. ECCC officials have increasingly threatened to sanction journalists for publication of confidential information pursuant to ECCC Internal Rule 35, a provision that allows for those who "interfere with the administration of justice" to be disciplined.(fn20) The threats to journalists who publicize the latest ECCC developments have sparked criticism of the court by the press, nonprofit community, and others.(fn21) And the lack of media access to information sets a dangerous precedent for the Kingdom of Cambodia, one of the most corrupt countries in the world,(fn22) where freedom of the press is severely limited and domestic laws of defamation and disinformation are frequently used to target journalists.(fn23)

Allegations of the media's interference at international courts are not unique, for international criminal tribunals have prosecuted several journalists in contempt proceedings.(fn24) Yet, what is unique is the ECCC's foundation in principles of civil law and its jurisdiction to prosecute crimes that occurred in the early 1970s.(fn25) Unlike common law courts that use express confidentiality orders, the ECCC presumes all aspects of pre-trial investigations to be confidential, even information that is already in the public domain.(fn26) As a result, journalists, who may be unaware that the information they divulge is protected, are bound by a duty of confidentiality absent an express court order. These strict presumptions of privacy-coupled with a broad duty of confidentiality and vague standards regarding the use of sanctions pursuant to ECCC Internal Rule 35-are problematic for a court like the ECCC, in which the public is highly invested.

With the sanctioning of journalists in Cambodia becoming a real possibility, this Comment advocates that the ECCC depart from the most recent contempt jurisprudence of the International Criminal Tribunal for Former Yugoslavia (ICTY)(fn27) which requires neither specific intent nor a material interference with the administration of justice to warrant sanctions-and instead develop a test similar to that used by the European Court of Human Rights, in which infringements on freedom of expression must be legitimate, necessary, and proportionate.(fn28)

Part II of this Comment explains the ECCC's presumption of confidentiality and restrictions on media access to date, while Part III reviews the most recent contempt jurisprudence from the ICTY. Part IV explains the standard established by the European Court of Human Rights, in which restrictions on freedom of expression must be necessary and proportionate to a legitimate purpose before journalists' freedom of expression can be infringed during confidential judicial investigations. Part V proposes a series of recommendations for the use of sanctions against journalists at the ECCC. In order to achieve the court's objectives of facilitating national reconciliation and serving as a model for Cambodia's struggling justice system, the final sections conclude that the ECCC should first make clear what information is protected by confidentiality orders; second, issue clear warnings when those orders are violated; and third, evaluate the use of sanctions on a case-by-case basis that considers the materiality of the interference, the importance of the confidentiality measure, and the intent of the accused.

II. The Presumption of Confidentiality and Media Access at the ECCC

While the three major sources of law governing the tribunal-the U.N. Framework Agreement, ECCC Law, and ECCC Internal Rules-all convey a desire for strong protection of public access to tribunal proceedings, they also include express provisions for confidentiality during pretrial investigations. Section A provides a brief overview of the ECCC and those provisions that protect public access, while section B summarizes confidentiality provisions during the pretrial period. Section C highlights the tension between public access and confidential investigations through a review of media access in Cambodia and the treatment of journalists covering the ECCC, and ends with an analysis of the most recent ECCC jurisprudence regarding the use of sanctions.

A. A Hybrid Court to Serve as a Means of National Reconciliation and Model for the Kingdom of Cambodia

The ECCC is the product of arduous negotiations between the Kingdom of Cambodia and the United Nations.(fn29) After much debate regarding the structure of the court, its optimal location, the limited scope of its jurisdiction, and the composition of court staff, the ECCC was established as a hybrid tribunal.(fn30) Rather than function as an ad hoc United Nations court, the ECCC was established within the Cambodian domestic legal system, yet it invites foreign participation and guidance though its internationalized nature.(fn31)

The tribunal's procedure must...