Arguing for principle and fairness, the British prosecutor Andrew Cayley on Friday said public trust in the Khmer Rouge tribunal had been “seriously undermined” by the actions of its investigating judges, who sought to censure him earlier this month.
In an appeal against an order from the judges directing him to take back a public statement, Mr Cayley also said Co-Investigating Judges Siegfried Blunk and You Bunleng had acted outside their powers and abused their discretion with the sole effect and purpose of publicly rebuking him.
In a brief order on May 18, the two judges directed Mr Cayley to “retract” a May 9 statement that called for further investigation in a case that was concluded on April 29 with no public information released, no civil parties admitted and no suspects charged or questioned.
Mr Cayley’s May 9 statement exposed how little the judges had done before considering their investigation complete.
More than a technical riposte, Mr Cayley’s appeal on Friday invoked what he said were the possible ramifications for the historical record created by the court if his own arguments were censored.
He also noted that the judges’ order had publicly repeated all of the information that they found should not have been made public.
The order “cannot be viewed as anything other than a capricious judicial act designed to publicly reprimand the international co-prosecutor,” Mr Cayley wrote. The appeal is now before the court’s Pre-Trial Chamber, which has twice been unable to form a majority in matters where politics were conspicuously present.
The five-judge bench was split in September on the question of whether Prime Minister Hun Sen and other government officials may have been in contempt of court for instructing high-profile CPP witnesses not to testify.
The same panel also failed to reach a majority in 2009 when arbitrating in a dispute between the court’s prosecutors over whether to open investigations of five suspects for genocide, crimes against humanity and war crimes, cases that would put the court in open conflict with Mr Hun Sen, who has repeatedly said these investigations will not be allowed to go forward.
In both instances, the court’s three Cambodian pretrial judges effectively sided with the government.
Though the dispute over the additional cases has divided the court, Judges Blunk and Bunleng appear united on the matter and have reportedly engaged a plan to do away with cases 003 and 004.
Mr Cayley’s appeal argued that the judges had cited no law or jurisprudence in ordering the retraction of his statement and were not empowered to issue coercive orders, such as retractions, in the absence of any possible interference with the administration of justice, something the judges’ order failed to identify.
Though the judges may disagree with Mr Cayley, this “does not entitle them to order him to withdraw his publicly stated opinion,” he wrote.
According to the appeal, the judges also failed to explain how Mr Cayley’s statement had caused harm to anyone and failed to consider the legal requirement to minimize the secrecy of proceedings so that victims and members of the public may be kept informed of the court’s work.
In finding that Mr Cayley was wrong to express the “opinion” that Judges Blunk and Bunleng were required to investigation the allegations made by his office, the judges had plainly misread the court’s law and procedure.
Such a view would allow the judges “to simply ignore or dismiss cases initiated by the co-prosecutors, a position that is both untenable and inconsistent with the principles underpinning the creation of the court and the responsibilities” of the judges, Mr Cayley said.
As criticism of the court mounted, the UN Secretariat last week denied giving any instructions “to any judge” to carryout such a plan, according to the German news agency Deutsche Presse-Agentur.
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