Kaing Guek Eav, better known as "Duch," directed the most infamous detention and torture center, S-21, for the Khmer Rouge regime in Cambodia. This is now a genocide museum and, for the first time in 29 years, Eav returned there in February 2008 as a man charged with crimes against humanity by the Extraordinary Chambers in the Courts of Cambodia (ECCC), a court located in Phnom Penh and created through an agreement between the Cambodian government and the United Nations. His return was part of the judicial investigation, and information about it was shielded from the public, as is the entire investigation of this civil law system. Even so, this was an historic event and, as such, was announced in advance by the ECCC. Not surprisingly, local reporters — and a few international ones — showed up at S-21 in Phnom Penh’s city center to cover the news. Several circumvented the security measures meant to keep them out.
Things then turned unfriendly. Tracey Shelton, a reporter with The Phnom Penh Post, who took pictures of the accused at S-21, ended up being questioned for several hours by the police. Her digital photographs were erased. The Cambodia Daily reported that John Vink, a Magnum photographer, "was warned by a tribunal official that if he published a photograph of Duch he would be blacklisted from the court." The director of TV Channel CTN said he was told by a court official not to air the footage his reporters had taken. As reported by The Cambodia Daily, ECCC Public Affairs Chief Helen Jarvis further warned that "under the tribunal’s internal rules any person, whether an employee of the court or not, who knowingly discloses confidential information in violation of a judicial order is subject to sanction by the tribunal, Cambodian authorities, or the United Nations."
These actions sent a strong warning to journalists covering the ECCC, just as those taken by other tribunals against journalists have served a similar purpose. In fact, during the past six years a number of worrisome practices and jurisprudence have developed at UN tribunals, practices that journalists should report on as part of their coverage of the trials themselves.
Reporting on the Courts
In the past 15 years, the rapid rise of international courts involved with criminal justice has signified important progress in the global human rights movement. During the 1990’s, three major international tribunals were created: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). The first two plan to end their judicial work by 2010; the ICC is a permanent institution that began in 2002. Other war crimes trials have been held under UN-administered East Timor and Kosovo. Three major "hybrid" tribunals, with shared responsibility between international staff and nationals from the country where the crimes occurred, have been set up — the Special Court for Sierra Leone, the War Crimes Chamber in the Court of Bosnia-Herzegovina, and the ECCC. Another similar institution, the Special Tribunal for Lebanon, should start operating soon, although that court will not deal with war crimes.
A small number of journalists cover war crimes trials and other reporters write occasional stories on proceedings in The Hague, Arusha, Freetown, Sarajevo or Phnom Penh. But what receives considerably less press attention are restraints being placed on investigative and independent journalists through threats and intimidation or legal suits placed against them by prosecutors affiliated with these courts. Nor has the practice of closed hearings and anonymous testimony before war crimes tribunals, particularly at the ICTR, nor issues revolving around witness protection, been reported on with the kind of journalistic scrutiny that might reveal that these procedures have sometimes been created by courts to assure their own protection. The increasing erosion of public access to what happens at these courts has become one of the most damaging legacies of the UN tribunals.
In 2006, several cases involving three Croatian journalists — held by the ICTY for "contempt of court" based on their political activism and disclosure of a protected witness’s identity — is just one example of the need for journalists to examine the legitimacy of such charges made by tribunal officials against such reporters. While it appears likely these Croatian "journalists" did not act out of public interest in revealing protective witnesses names but rather with the political objective of undermining the ICTY and embarrassing a politician they opposed with virulence, what they did was not as obviously a crime as the court said it was. (One of them, a self-styled reporter, did clearly act against explicit warnings from the tribunal against publishing confidential information as he put names of protected witnesses on his Web site.)
It is important to cover stories such as these so the public will know if the publication of protected witnesses’ names or testimony actually was injurious to the court’s proceedings or whether these charges demonstrate the tribunal’s arbitrary misuse of universally recognized principles, such as that of witness protection. With the possible exception of the Croatian who acted after being warned, the offending articles do not appear to have posed objective danger to the security of the witnesses whose identities they revealed. In fact, the protection of their identity as witnesses has at the very least been questionable at the time when these proceedings were launched. The details of such cases are critical to learn about, since they permit the public to be able to better judge the news media’s decision to publish and can explain how their view of that obligation can legitimately conflict with that of the judiciary.
Consequences of Revealing Information
What happened to me in this regard speaks to many of these issues. In 2002, while I was covering the ICTR in Arusha, the chief prosecutor, Carla del Ponte, attempted to charge me with contempt of court. On April 26, 2002, in my article, "The Karangwa Trap," I revealed that a potential key prosecution witness, Major Pierre-Claver Karangwa — who was scheduled to testify in the most important trial to be heard before the Rwanda tribunal — was now suspected by prosecutors of participating in the Rwandan genocide. This story also reported that the investigation against Karangwa by the acting chief of prosecutions was causing serious trouble within the prosecutor’s office and questioned if the prosecutor’s office was being run in a coherent fashion. I described its leadership as "fragmented."
Fewer than two weeks after this article appeared, the ICTR’s acting chief of prosecutions sent to my desk in the tribunal’s press room a "confidential" letter. It ordered me to withdraw the article at once because it "flagrantly violates" a witness protection order issued by the ICTR, presumably protecting Karangwa. It warned me that this "violation" would be brought to the tribunal’s attention "in an appropriate fashion."
I did not comply. On May 22nd, the prosecutor’s office asked a trial chamber to initiate contempt of court proceedings against me. Neither my newspaper, Diplomatie Judiciaire, nor I were made aware that this was happening. Contrary to the basic rules of due process, the request was sealed and filed with the utmost secrecy. Consequently, I did not have the right to defend myself. Only several days after the judges ruled on July 5, 2002 — and rejected the argument of the prosecutor — did I learn I’d been threatened by a legal suit. My paper was never notified by the court about its ruling (another breach of a basic right), nor was it served with a copy of the prosecutor’s confidential request.
What happened to me has relevance to the cases against the Croatian journalists. It is a valuable reminder that these courts, as prestigious as they might be, can abuse their powers and disregard fundamental rights. And they’ve done so on a lot more occasions than most people might think. My case also illustrates the importance of examining the timing of these legal actions — and how it can reveal the motive behind such actions. For example, the person responsible for initiating the legal proceedings against my newspaper — the acting chief of prosecutions for ICTR — had been implicated in the Karangwa article I’d written.
During the six months prior to this legal action being taken, Diplomatie Judiciaire had also published a number of reports about serious dysfunction at the ICTR at every level of its structure. A judge had made oral threats of legal action against me for contempt of court, as had a defense lawyer, both of whom had been exposed in our paper for actions that sparked a crisis between the ICTR and genocide survivor organizations in Rwanda. UN investigators had let me know they wanted to interrogate me about my sources on another story, and they had intimidated some of my contacts. Five days before this secret court action was taken against me, my newspaper had begun to publish a series of investigative articles I wrote that would result in an indictment made against a Rwandan general being recognized as a sham. (Three months later, the prosecutor was forced to withdraw all the charges against him.)
In short, the legal offensive against Diplomatie Judiciaire was launched at a moment when the ICTR and its prosecutor’s office, in particular, were being confronted by critical investigative coverage. The stated grounds for the proceedings — contempt of court for violating an ICTR witness protection order and concern about Karangwa’s safety — were clearly not the primary motivation of the prosecutor for this action. On the contrary, it was threatening to prosecute Karangwa for genocide in reprisal for his involvement with a defense team. Furthermore, Karangwa was living legally in The Netherlands, and he agreed that I’d interviewed him. (He was quoted in the story, a fact the judges used in their decision by saying that the witness had de facto waived his rights for protection.) In reality, the contempt of court procedure appeared to be plainly a way to silence a newspaper that had become too critical of the court.
Clearly, the intent in many of these cases is a desire by the prosecutor to restrict the work of the news media. According to the judges’ ruling in my case, the prosecutor’s office had requested that no one should be allowed to reveal "any information to the public, media or any other party not directly involved about the drafting of the motion, the chamber’s decision on the motion, or any other impact the motion might have." If convicted, my paper would have been forced to withdraw its article from the public domain and do so secretly without offering any explanation. This provided us with evidence that the aim of the prosecutor’s office was to suppress the article’s content rather than punish an alleged violation of a court order that had put a witness in danger.
Organizations with the mission of protecting journalists have, for the most part, said little about these legal actions against journalists. Such silence is troubling. In democratic societies, journalists breach confidentiality measures and defy court orders when they believe the public interest outweighs the need for secrecy. And it is the job of journalists to find out information that some parties in a trial want kept secret. Yet these reporters face threats and intimidation and legal action and receive little or no support from their journalistic colleagues. The reticence of these media organizations to highlight these difficulties and the unwillingness of journalists to report on what happens to their press colleagues needs to be overcome. These judicial institutions should be monitored with vigor, just as any institution entrusted with such serious powers requires oversight by the public’s watchdogs.