Sources and Justifications of the Acrimony Between Ieng Sary’s Co-Lawyers and the Co-Investigating Judges

The several heated exchanges between the Co-Lawyers (‘CLs’) for Ieng Sary and the Co-Investigating Judges (‘CIJs’) on the subject of the CLs’ web-publication of their motions have resulted in this dispute boiling over into the public domain.

The essence of the dispute is simple: until today the CLs have operated under the assumption that they owned their own motions and can therefore dispose of them in any way they pleased; the CIJs, conversely, believe that such motions are a part of the judicial investigations undertaken by them and therefore confidential.

Following a few gentle reminders to the CLs the situation escalated when the CIJs realized that their communications on the matter were being ignored (the CIJs allude to this in their public statement where they note “that, while a judicial decision can always be contested by exercising the avenues of recourse prescribed by law, it cannot simply be ignored”; the CIJ’s further use the “had you come to us first” language to indicate their past willingness to discuss the possibility of publication of some documents of the CLs on their website which is evidenced in “with a view to transparency, the defense could have requested that the Co-Investigating Judges publish a document if they believed that such publication was necessary for the public to gain a full understanding of the judicial proceedings”(Order, para. 14). Since instead of opting for the course of negotiating the publication of individual documents with the CIJs the defense sought the support of the Deputy Director of the Office of Administration, the action deeply chagrined by the CIJs.

From that point onwards, the CLs and the CIJs began a jabbing campaign which further escalated the dispute. Throughout this campaign a number of indecorous statements have been made by the both parties: the CLs accused the CIJs of being apprehensive of the public finding out about the alleged lack of legitimacy and judiciousness in the CIJs’ decisions; the CLs referred to the argument put forward by the CIJs’ as “a fig leaf” for the purported necessity for proper judicial investigations; the CIJs retorted with the alleged self-admitted incompetence of the defense of the workings of the system of civil law (I am not aware if the defense has ever made such explicit statement or whether this is the sum total of the CLs’ behavior, as perceived by the CIJs, and the fact that the International Co-Lawyer and the Team’s Legal Consultant come from common law jurisdictions (Alaska and New York); the CIJs further slammed the CLs for the perceived inability to read the Internal Rules (‘IRs’) which the CIJs maintain contain “perfectly clear provisions” which regulate the matter of the dispute.

The foregoing acrimony aside, the question remains – who’s got the upper hand in this dispute?

The CIJs’ most recent decision on the matter is reasoned but by no means flawless. The major shortcoming of this decision, in my opinion, lies in the fact that although the CIJs hinged their entire argument on the rule of the IRs that “all persons participating in judicial investigations shall maintain confidentiality”, the CIJs fail to point out the rule(s) of the IRs that define such participation. This leaves the question of whether all organs of the ECCC are subject to such confidentiality rule insofar as the judicial investigations are in progress (would this also apply to the administrative apparatus of the Office of Administration and the documentation they produce which is purely of administrative nature?) unanswered. With this question in limbo it is difficult to appreciate the remainder of the merits of the CIJs’ argument.