A news agency makes public a court document which has not been classified as ‘public’ by the court itself. The Co-Investigating Judges (CIJs) of the court respond by opening contempt proceedings against the media agency and issuing a stiff warning to the rest. The CIJs cite R. 35 of its Internal Rules as the legal basis for the action. R.35 does permit the ECCC to “sanction or refer to the appropriate authorities any person who knowing or willfully interferes with the administration of justice” and within that who “discloses confidential information in violation of an order of the CIJs or the Chambers”.
On the face of it, the facts of the alleged infraction fit the type of conduct that R. 35 sought to prohibit. On a closer examination, questions as to whether R. 35 controls the issue arise. Here’s why. It is hard to imagine that a news agency – even one of Voice of America (VoA)’s stature – could – or would -- directly breach the court’s security arrangements. In other words, it is hard to imagine that VoA is in possession of a court staff member’s access to the court’s database or that it has otherwise physical access to the classified documents directly and without an intermediary. I have no reason to believe that the CIJs are suggesting this to be the case either. What I believe the CIJs are suggesting is that someone with access to the court’s internal database – or just the document in question – leaked it out to the VoA. Perhaps, an officer of the court, current or former. 3 questions therefore arise: (1) how is the interest of free press reconciled with the State interest privilege to classify information? (2) what is the meaning of “any person who discloses” of R. 35? and (3) what is the media agency’s liability in this case?
Regarding (1), it is a well-known function of the media in a democratic society to keep the public informed. This function of the media is linked to a number of constitutional rights of the highest rung. These rights protect the media from undue interference of the State as there is an understanding that the media will need a high level of constitutional protection if it is to inform the public of the matters of public administration (which the government oftentimes does not want the public to know of and which it is understood the government would keep under wraps if it were not under the constant glare of the media). However, it is understood that there are certain matters regarding which the State reserves the right not to disclose information (e.g. national security). In democratic societies, the law does not permit the State to determine which matters must be classified on the basis of capricious standards; on the contrary, there are legal tests which determine the types of information which may be classified. It is further understood that this information has to be of the highest level of privilege and importance to the State. It is hard to imagine how the document disclosed by the VoA meets this high level.
Regarding (2), it is reasonably clear that the CIJs do not suggest that the VoA has independent, direct and unhampered access to the court’s internal documentation. Therefore and as posited above, the CIJs are suggesting that the media merely published a document obtained by someone else who is not an employee of the VoA. If the CIJs consider the act of obtaining and transferring the document by the person(s) who committed the act illegal (for which they have a sufficient legal basis), the ire of the court’s contempt must be directed at the person(s) whom they suspect of having illegally obtained and transferred the document, not the media agency which published it. Once taken out of the secured space of the court’s internal communication the document would have been shared one way or the other, whether it would have been done by establishing an anonymous blog or by handing it off to a large media outlet (CIJs can argue that considering the size of the blogosphere it is less likely that as many persons would have been shared this document with as it may be the case when the sharing is done through a media company with the VoA’s wingspan). Essentially, the CIJs might be on the right trail but they are surely barking up the wrong tree – the offending officer of the court should have been the target of the CIJs’ ire, not the media outlet which provided a forum for the document’s publication.
Regarding (3), it must be noted that it is the most difficult of the 3. The media’s freedom of expression is not limitless and does not shield it from all types of information it might make public. In many countries the publication of such things as hate speech, defamatory (which, unlike it is often the case in Cambodia, have the ‘false’ element in them as opposed to be merely telling the “inconvenient truth”) statements, information which the media company has reason to believe to be untrue, etc. VoA appears to have had no reason to believe that the publication of the document in question was barred by any of these limitations (for one, it is clear that the document published is authentic which is clear from the CIJs’ response). Except for one: the interference with the administration of justice. This matter is not without precedent on the plane of international criminal courts. A couple of years ago the International Criminal Court for the former Yugoslavia (ICTY) brought contempt proceedings against its own employee who the indictment stated disclosed information excluded from the public domain through a court order. The facts of this disclosure differ from those of the one at hand in the following ways: (1) the documents as such were not disclosed but the fact of their existence was; (2) the contempt proceedings were brought against the offending court officer, not the media outlets she used to disclose the privileged information; and (3) the value of the information disclosed. Let’s look at these one at a time. (1) The ICTY officer did not leak court-protected documents to the media but made statements disclosing the existence of these documents which considering the nature of the documents was both revelatory and inflammatory. (2) No proceedings were brought by the ICTY against either of the media outlets which the offending officer used to make the disclosure. (3) The documents the existence of which was disclosed were, perhaps, of the highest rung of importance in the whole of the Yugoslav conflict of the 1990s. If we presume that the most contentious matter of that conflict is the Srebrenica Massacre and if we presume that this is the single most embarrassing (whether they admit it or not) to the Serbs (be they ethnic Serbs throughout the former Yugoslavia or the State of Serbia) event of that entire conflict and one of the main sources of tension which presently exists between the State of Serbia and the State of Bosnia and Herzegovina (whose affected Muslim population continue reeling from the event), we can presume that any document regarding the Srebrenica Massacre is sensitive, to say the least. This existing sensitivity was made more acute at the time of the disclosure as the case of genocide filed by Bosnia and Herzegovina against Serbia (not the Serb enclave known as Republika Srpska but the sovereign state of Serbia) was at the time under review at the International Court of Justice (ICJ) with potential historical, diplomatic and financial implications for Serbia. Hence, when the special panel established by the ICTY found that “the disclosure could harm Serbia’s vital national interests”, a reasonable observer versed in the particulars of the Yugoslav conflict and post-conflict developments could see how. In this case, the CIJs do not tell us what it is that is so special about this particular document besides the fact of its mere disclosure (particularly considering that this is not a first in this court’s tenure as while the names of the suspects in Cases 003 and 004 were never officially disclosed, we all know who they are; how? the media) besides the fact of disclosure itself. It would be most instructive to hear the CIJs’ arguments regarding how this document is of “vital national interest” to Cambodia considering the fact that there is an international precedent which controls the issue and in the environment of this court’s heavy reliance on the precedent of the other international and hybrid criminal tribunals which should make it relevant to -- if not dispositive of -- the matter at hand.