By David Scheffer, Professor and Director of the Center for International Human Rights, Northwestern University School of Law

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Trial Footage - Transcript
Part 1 | Part 2 | Part 3
Part 4 | Part 5


The final day of the closing arguments in the trial of Kaing Guek Eav (alias Duch) before the Extraordinary Chambers in the Courts of Cambodia (ECCC) was a combative and surprising end to this historic trial held three decades after the atrocity crimes of the Pol Pot era. On this day, Duch’s admitted guilt was transformed into a request for acquittal, and the expectation of his incarceration for the crimes committed at S-21 was repulsed with his demand to be released so that he might walk a free man again. The civil party victims and hundreds of Cambodians sitting in the public gallery witnessed an astonishing display of hubris and arrogance that may reveal itself as a cynically smart defense strategy some day, but appeared almost obscene as a direct assault on the entire purpose of international justice and the preservation of memory.

Rebuttals continued today with International Co-Prosecutor William Smith immediately launching into a counter-attack against the co-defense counsel on several levels. He took great exception to defense counsel’s allegations that the prosecution was “using untruths” in its case against Duch. He pointed the judges to all of the prosecution’s submissions, including the 160-page final written submission with its 1,000 footnotes. “Look at the evidence rather than the rhetoric,” Smith counseled. He had acknowledged the limited cooperation of Duch on page 6 of his final brief, including that Duch had been generally cooperative and apologetic and that such conduct should be a mitigating factor in the sentencing. The defense counsel’s accusation that there had been no such acknowledgment “is an untruth and completely inaccurate.”

Smith addressed the judges: “You have been grossly misled by defense counsel. Their brief has nothing addressing mitigating circumstances. Throughout this trial and the briefing for it, defense counsel have accepted that Duch will [essentially] plead guilty. Certainly not acquittal! But they asked for acquittal yesterday based on Duch’s cooperation with authorities. This needs to be rectified. The defense is leaving its client behind and that’s improper conduct. If the accused has instructed defense counsel to seek an acquittal, then he should benefit from no mitigating factors on his sentence.”

Yet Smith pondered a different scenario. “I have a feeling that is not the case. I believe counsel have acted without instructions from their client. The judges should solve the problem now, today, or else the accused will be shortchanged or he will appeal the judgment and say his counsel did not act on his instructions and then we will go through this all over again….What has Duch asked for—a guilty plea or an acquittal? Answering that question would avoid an appeal he might raise in the future.”

The next step was to try to unpackage the substance of Duch’s acquittal submission, if that indeed is what he has done. The defense, Smith said, claims that Duch benefits from an amnesty, does not fall under the jurisdiction of national crimes, is free of any evidence of grave breaches of the Geneva Conventions, and enjoys a full defense because he obeyed superior orders. International defense counsel François Roux admitted that things had changed on Thursday and that his client was pleading “not guilty,” and then he sought mitigation! What seems clear is that they were asking for an acquittal, but were counsel acting on instructions after months of representations of expression of guilt for the crimes of S-21? “This would be unacceptable in any court,” Smith protested.

Smith then addressed some of the particular points raised by defense counsel the day before. He said that the 1994 amnesty law did not apply as the ECCC Law effectively withdrew it and even if it had not done so, the amnesty law still does not apply to this defendant. Further, defense counsel’s sudden submission of this argument is 1.5 years late, as it should have been filed in accordance with the procedures set forth in Internal Rule 89. In addition, Article 29 of the ECCC Law clearly states that superior orders are no defense and that reflects well-established international jurisprudence on crimes against humanity and war crimes.


After Smith sat down, Civil Party Group I lawyer Karim A.A. Khan jumped up and asked the judges to act upon Smith’s request for instructions from Duch as to which plea he seeks to enter. They should ask Duch immediately so that the co-prosecutors can react to whatever Duch’s instructions prove to be. He was met with stony silence from the bench and Cambodian co-prosecutor Chea Leang was invited to continue the prosecution’s rebuttal statement. Khan sat upright for several minutes awaiting some response to his request, but that would not come until later in the morning’s proceedings.


Chea Leang opened by saying that the defense should not be seeking revenge, but justice in its task before the court. “Did crimes exist at S-21, and who is responsible for them?” The defense failed to bring forward exculpatory evidence regarding its client and those crimes. She repeated Smith’s point: “Is it the defense counsels’ request to reduce Duch’s sentence or to acquit him?” She said the time had already elapsed to raise the issues presented by the defense counsel yesterday. Chea Leang argued that Duch indeed is among those “most responsible” for the crimes falling within the jurisdiction of the court and that the extension of the statute of limitations for offenses under the 1956 Penal Code was entirely legitimate. This is because the crimes of homicide and torture under the 1956 Penal Code clearly existed at the time of S-21. The principle of legality thus was not violated by act of the National Assembly to extend the statute of limitations for such crimes an additional 30 years. In fact, the Constitutional Council had examined the issue in 2001 and rendered two decisions that validated the extension of the statute of limitations, and there is no appeal from the Council’s final decision. The crimes themselves were not altered in any way. Enforcement of the ECCC Law does this violate the principle of non-retroactivity. Duch should have known that the murder and torture of more than 12,000 detainees were criminal acts. In fact, he made clear in earlier testimony that he knew the illegality of the regime. Finally, the Pre-Trial Chamber had already ruled on the inclusion of murder and torture under the 1956 Penal Code in Article 3 of the ECCC Law.

Chea Leang described as making no sense the defense counsel’s major argument that Duch was being made a scapegoat for the crimes of others. She cited the Lubanga trial at the International Criminal Court. When Lubanga surrendered to the ICC, he also was accused of being a scapegoat defendant, a charge quickly rebutted there. Here, the Trial Chamber only looks at the facts of S-21 and not all crimes committed in Democratic Kampuchea. The crimes of S-21 have been well listed, she said, and substantiated by ample evidence. In fact, “he already plead guilty for the crimes!”

Duch was among the most senior and responsible people in the Pol Pot regime, Chea Leang continued. He was responsible for torture and executions. S-21 was the main security prison in the entire country and it operated with direct connection to the Standing Committee. The aim of S-21 was to purge enemies of the regime, the internal staff and members of the Communist Party of Kampuchea, through arrest, detention, torture, and death of the detainees. Duch ordered arrests and executions. He had the authority to make arrests, which he carried out in person at times. He received prisoners from all regime ministries and used great skill at arresting individuals. “Duch was the real criminal,” Chea Leang said. “He was behind the crimes. He was the secretary of S-21 and guided the whole function of the center. He was the most senior among others ‘most responsible.’”

Chea Leang continued that Duch knew of the existence of an armed conflict with Vietnam prior to 15 August 1977. Duch knew that Son Sen had to go to the battlefield prior to that date. In fact, Son Sen briefed Duch about the conflict. Also, through arrests of Vietnamese and their interrogation he would have become aware of the conflict.

Duch was not genuine in his expression of remorse, she said. But he cooperated with the Trial Chamber and made statements that he is responsible for all crimes in both the legal and emotional context. If Duch would only keep cooperating and expressing genuine remorse, the victims probably would accept his apologies. But that had not happened.
William Smith rose again to deliver the final component of the co-prosecutors’ rebuttal. He returned to the vexing issue of the day. “The defense seeks an acquittal. If Duch is not acquitted, then they want a penalty ranging from 17 to 20 years. Bearing in mind the huge scale of crimes, the defense strategy represents completely and utterly inadequate responsibility for the crimes. It does not reflect what international law requires for crimes of such large magnitude.”

Smith then sought to distinguish the trial of Dragan Obrenović before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Duch trial, in response to International defense counsel Roux’s efforts to draw a useful comparison from it the day before. “I worked there [at the ICTY],” Smith reminded everyone. “Obrenović is completely different from the case against the accused. Obrenović was a military officer of good character before the war. Duch had been at his business [of torture and executions] for years. He said as early as 1971, ‘I cannot stand duplicity and I beat them to death.’ In contrast Orbrenović acted over a three-day period in 1995 at Srebrenica. He essentially played a passive role in allowing his men to be part of an operation of mass murder. But when the ICTY investigation began, he cooperated fully, allowing investigators into his office. For Duch, the crimes at S-21 last for 3.5 years with more than 12,000 deaths. He cannot be compared at all to Orbrenović. Rather, this Trial Chamber should give Duch triple the sentence Orbrenović received!”

As for the Albert Speer defense delivered by Roux on Thursday, Smith said that Duch loyally implemented the Pol Pot regime’s policies. Speer was quite different. He had a conscience and actually ordered people not to commit these types of crimes. Speer was one of the few men to tell Hitler that his regime was ending. He deliberately sabotaged the government at great personal risk. Duch knew that 90 percent of his victims were innocent. Duch admitted to his guilt but did not provide evidence that he avoided orders. Was he a small cog? Did he have to commit all the crimes? Could he have minimized the pain and suffering of his victims? Duch testified that he trained interrogators and dared them to be cruel. The terror he inflicted at S-21 multiplied throughout Cambodian society with the names he extracted in the interrogations, which led to more arrests and more torture and more executions.

Smith said Duch was asked, are you the man who implemented the trust of your superiors? He said, “Yes.” Smith noted that the co-prosecutors gave Duch the opportunity two days ago to really apologize. Apart from seeking acquittal, he has had his international counsel say he was the small cog in the machine. But it was Duch who proposed torture and proposed arrests to his superiors. He chose not to take the opportunity to back off. But what really undermines his case, Smith contended, was his close and adulatory relationship with Son Sen. Duch told the court, “This is the question I have been waiting for. I had the utmost respect and faithfulness in Son Sen.” Son Sen brought him up through M-13 and S-21. And Duch stayed with him for 15 years after the collapse of the Pol Pot regime.

Smith uncharacterically became agitated. “What?! He’s got to be joking. If not, that proves that this is just a complete lie. He comes to court but he is not facing up to what he was! Maybe in a final statement, he will turn to the civil parties and say, ‘I believed in the CPK; I believed it was a means to an end.’ How can you be proud of a boss who told you to torture and kill for years?!”

Smith continued, “This case is about 12,000 people brutally tortured and murdered. It cannot go to a light sentence. You must give him a 40-year sentence.” He noted the wishes of the civil parties for a life sentence. He explained that the court must reduce the sentence due to Duch’s prior unlawful detention in the military court. It must be a sentence the court can be proud of. Smith concluded, “In respect for the victims, for the Cambodian people, and for no peace without justice, remember the victims and send a strong message to Cambodia.” Smith then sat down.

The Trial Chamber president, Nil Nonn, referenced Smith’s request for clarification of the defense plea and whether defense counsel were acting on the defendant’s instructions. He asked the accused whether he wishes to make final remarks and if so, the court would reserve time for him. Since the chamber was not yet clear about the inconsistent defense counsel statements, the judges expect that the matter be clarified in the defense rebuttal.


Cambodian defense counsel Kar Savuth rose for his rebuttal argument. He said he did not challenge, but then he challenged the extension of the statute of limitations under the 1956 Penal Code for an additional 30 years. He emphasized that the statute expired in 1989. “This is like a person dying and then resurrecting a dead body—that is impossible.” He delivered a somewhat convoluted explanation of his objection to the extension, drawing upon various sources including the 1971 Paris Peace Accords.

Savuth returned to his earlier theme of comparative injustice, namely that chairmen of the 195 other prison centers in Cambodia during the Pol Pot regime have not been brought to justice. More people died in some of the other facilities. “Why is S-21 the primary target of the prosecution?” he asked. While Son Sen oversaw S-21, other members of the Standing Committee supervised other prisons. “We reject that S-21 was unique,” he declared. He said the aim should not be to find justice for the CPK cadre who were “smashed” at S-21, but the prosecution should find justice for the innocent victims at the other prisons.

Savuth said that the defense acknowledges that crimes were committed at S-21. The accused has confirmed that, he said. But who is responsible for those crimes? “The CPK is solely responsible for such crimes,” Savuth declared. The CPK was behind all orders for execution. Duch did not order the crimes, he said. He said Duch was a scapegoat. Duch had been imprisoned for ten years and other prison chairmen had not been imprisoned at all. “So let my client go home. Release him and let him go home!”


International defense counsel Roux continued the rebuttal at this point. He lit into Smith: “You challenged my words of yesterday.” Roux then sought to downplay Smith’s point that the prosecution indeed had acknowledged Duch’s own statements of responsibility and his cooperation with the court. Roux essentially argued that the prosecution’s acknowledgement was not sufficient. He also defended the brevity of his 16-page brief. “The defense tried to convert into a legal framework what the defendant has said since 1999, that he acknowledges the crimes he committed. Duch said, ‘I acknowledge my crimes. I apologize to the victims. I am also morally responsible for all crimes in Cambodia by the CPK because I am a member of the party.’”

Roux challenged Smith’s effort to distinguish the Ordemoviç case at the ICTY. “The people massacred in three days were massacred due to Ordemoviç, whereas all of them should have been protected by him.” Roux raised the Albert Speer defense, and said that while he prevented Hitler in part from pursuing a scorched earth policy, Speer had much higher responsibility in Nazi Germany than did Duch in the Pol Pot regime. “Speer’s crimes were a thousand times more serious,” Roux said. Despite the severity of those crimes, the Nuremberg Tribunal took into account Speer’s admission of guilt. How can the prosecution here say that Duch instituted a reign of terror in Cambodia? Roux argued that although 12,380 persons died at S-21, and the prosecution accuses Duch of those deaths, those deaths did not cause a period of terror to operate throughout Cambodia.

Regarding Duch’s relationship with Son Sen, Roux said that to have faith in him means Duch understood who Son Sen was. It is Son Sen who should have been brought to this court, Roux claimed. [Of course, he knew Son Sen was dead.] Son Sen was the CPK and Duch followed the orders of the CPK. Duch is a tragedy, Roux said, “Yes, indeed, a tragedy.”

Then Roux launched a new argument. “If Duch had resigned at S-21, do you believe S-21 would have gone on? Yes. It would have been a killing machine in the hands of Son Sen. Duch got lost—he believed in the revolution and that it was good for his people.”

Roux noted that the co-prosecutors acknowledged that there were mitigating circumstances. Duch must benefit from mitigating circumstance, Roux claimed. First, regarding duress and superior orders: Duch did not escape from the system. Everyone received orders from their superiors and passed those orders on to their subordinates. The 30 March 1976 decision defined the whole policy of the elimination of the enemies of the revolution. The Standing Committee made such decisions, not Duch. It was impossible to escape. Second, the co-prosecutors do not challenge Duch’s cooperation. Third, Duch has shown remorse and contrition several times, and he asks that the door be kept open for more contrition. Fourth, one must consider his personality. Fifth, there is the issue of what the psychiatrists determined about him. Over the course of the year, they witnessed a change in his psychological development. Was Duch dehumanized during the Pol Pot regime? Before dehumanizing their victims, the executioners dehumanize themselves, Roux noted. “No one is born an executioner, one becomes so.”

Roux noted New Zealand’s sentencing law, which requires taking into account all restorative aspects of justice: apologies, contrition, and the character of the accused. There is no justice, Roux said, if the only purpose of the sentence is to punish. The sentence will never repair the suffering of the victims, he continued. But do not follow an eye for an eye, a tooth for a tooth. We pleaded that the Trial Chamber take into account Cambodia’s forthcoming new penal code and the reparation that Duch is entitled to for the violation of his rights—the unlawful imprisonment in the military court. “There are many people more responsible than Duch who will never be prosecuted. He’s already spent ten years in detention. You cannot draw a parallel with other prison chiefs and senior leaders who have not been prosecuted,” Roux said.

Roux emphasized that the 1994 amnesty law ended the civil war and was designed to make peace with enemies. He asked the court to take that into account and not turn Duch into a scapegoat. He reminded them that he had declared “Duch” dead on Thursday in his closing argument. Duch is dead and the court now faces again the former math teacher, Roux claimed.


Smith rose at the end of Roux’s rebuttal. “Maybe this was an oversight, but the defense have evaded your question on the change of the defendant’s plea,” Smith said. He continued: “Is the defendant seeking a mitigated sentence or an acquittal? Why is the defense running these two defenses at the same moment? What is the basis for an acquittal? There will be no relief for the victims if the accused is generally accountable but not legally accountable. Because of this evasion, the better course is to ask the accused if he instructed counsel on two grounds that are not real cooperation or remorse. If his request is for an acquittal, that undermines his pleas of remorse and invites a longer sentence. If his counsel are not following his instructions, the court is exposed to the possibility of an appeal by Duch over the fact that counsel did not comply with his instructions.”

Roux objected to Smith rising as there was no provision in the Internal Rules for a rebuttal to the defense counsel’s rebuttal. Then Roux turned particularly caustic and almost insulting. He said the co-prosecutor “must not have been listening to us. The word ‘acquittal’ was not used this morning. Both defense lawyers urged mitigation and that he be freed as soon as possible. He should be freed after being imprisoned for ten years and after having acknowledged the crimes.” However, the judges remained confused and Roux would soon be contradicted by his co-counsel for the defense, Kar Savuth.


High drama continued in the courtroom. The judges consulted among themselves. President Nil Nonn finally asked, “Does the defendant wish to speak? There have been some doubts in comments by counsel for the accused. The Chamber expected the defense to clarify its position. Our question was not well answered yet. The Chamber and the public have observed good memory of the accused in the proceedings. We wish to hear the personal position of the accused.”

Duch rose to speak. He said the following: “I am most grateful for the opportunity to make my last words. I have worked in a spirit of cooperation with the court. Since my arrest on 8 May 1999, to the military court, I had been determined to report to the court sincerely and honestly. I have cooperated with all questions by the co-investigating judges and the co-prosecutors. I fully responded to questions in these proceedings. The proof is in the transcripts. In paragraph 86 of my submission, I take into account the crimes at S-21 and won’t talk more about them. I request the Chamber consider what I said. My 33-page document is just a fraction of the information I have provided. I have fully cooperated with all levels of the court.

“I have expressed my apologies and my guilty admission. This court has jurisdiction from 17 April 1975 to January 1979. M-13 was also discussed and I responded to questions about M-13. I also was asked about events after 1979. I have never forgotten about the one million souls that perished, including those of my relatives. But all of the crimes were committed by the CP. I, as a member of the party, acknowledge and apologize. Pol Pot relied heavily on the party and I was a party member.

“I don’t challenge the number of 12,380 deaths at S-21. I am responsible for crimes without any denial. I’m responsible for crimes as part of a criminal party [CPK]. I acknowledge that these people died at S-21. My deputy, Hor, was in charge of executions. I did not want him to bear responsibility. I have learned from the psychiatrists that I need to be restored into the ambit of humankind.”

Duch then went on to claim he was not part of the senior leadership of the Khmer Rouge and pointed to only six individuals from the Standing Committee as meeting that standard. He then said that no one could violate the party line. Pol Pot was the secretary in charge of the party. The secretaries of the zones had the authority to “smash.” If they violated the spirit of the collective, Duch said, they also had to be “smashed.” The purpose of the ECCC Law is to bring senior Khmer Rouge leaders to justice and that would find justice for everyone in the country and achieve national reconciliation.

But Duch continued: “I never challenged the crimes at S-21. I have served for ten years, six months, and 18 days. I do not challenge my detention as illegal. I leave to the court to determine illegality. I ask the Chamber to release me.”

President Nil Nonn asked the accused to rise again and said to him, “The Chamber has heard your final remarks. You asked to be released. The question now is, what made you ask for a release. Are you seeking an acquittal of all charges against you or a reduction of sentence for your cooperation and time detained since 1999? We need to be of clear mind regarding our decision.

Duch responded that, “My ability to analyze is limited to what I can report. I would like the Chamber to release me.”

President Nil Nonn responded, “This development is strange at the end of the trial if compared to national practice. The defendant has pointed to his Cambodian counsel to say a few words. Perhaps he could clarify the position of the defense.”

Duch said his view was consistent with Kar Savuth’s so he may speak for him.

Kar Savuth rose and sought Duch’s release. He reiterated some of his prior arguments about Duch not being a senior leader of the Khmer Rouge, that Son Sen had the authority to “smash” at S-21 as a member of the Standing Committee, that Duch was not among those most responsible for the crimes and that the CPK was the culprit. For those reasons, that is why the defense sought the defendant’s release.

Judge Silvia Cartwright intervened with this question: “Do I infer that the defendant is seeking an acquittal?”

Savuth responded: “Release means acquittal.”

President Nil Nonn declared the trial at an end and summarized some of basic information about the total of 77 days of trial proceedings. He thanked all participants, including the civil parties and victims. He said that the Trial Chamber would deliberate and prepare a final judgment. The date for delivery of the judgment cannot be scheduled due to the size of the case file and the requirement to work in three languages, he said. The judgment date will be duly announced in advance.


At the press conference immediately following the day’s proceedings, International Co-Prosecutor William Smith said that Duch had been ably represented by counsel, that this had been a fair trial, that the civil parties had been ably represented, and that the way the trial judges presided over the proceedings pointed to a fair trial. He said the co-prosecutors looked forward to the judgment. He said the co-prosecutors were surprised this week at the defense strategy. The request for acquittal reflected the accused’s view of what he wanted. The accused has shown some remorse and cooperation but the remorse is now limited due to his acquittal plea.

Cambodian Co-Prosecutor Chea Leang said they were taken by surprise. Duch had asked for an acquittal and that contradicts what International defense counsel Roux had long sought—namely acknowledgment of guilt and mitigating circumstances, “but today we heard the opposite.” So the position of the defense is rather mixed. The national defense counsel sought acquittal and release. The international defense counsel had a different view. Duch essentially wanted the charges dropped.

Smith explained that both defense counsel ended up seeking release of Duch. Perhaps, pursuing Roux’s presumed logic, it was premised on ten years having been served for the crimes committed at S-21 and that should be enough. Despite the disagreements between the two defense lawyers, Smith believed that the sharing of defense responsibilities can work for the best of the court and develop skills for future cases. Smith also said he was satisfied there could be no appeal by Duch. “It took a while to get the answer in the courtroom. It fell to Duch to state his position. The national counsel confirmed the acquittal plea. Despite the advice of defense counsel Roux, Duch plead not guilty and yet he still wanted mitigation on his sentence.”

Smith further explained the rationale for the prosecution’s request for a 40-year sentence and maintained the same reasoning as he had stated in the courtroom. He said the cooperation of Duch in trial 002 will be a factor to consider. His partial cooperation so far had influenced the co-prosecutors’ recommendation of five years subtracted from a 45 year sentence (thus reducing it to 40 years). But now, “we would have had some discussion in the office on that issue if we had known there would be an acquittal plea.”

Civil Party Group 1 lawyer Karim A. A. Khan stated at the press conference that it remained a historic day, the end of the first trial before the ECCC. It was the first completed international or hybrid court trial with the active participation of civil parties. All were taken aback, he said, and it was contrary to expectations that the accused did not put forward a guilty plea. “He is seeking an acquittal. This confusion needs to be reconciled….Duch is criminally responsible for the crimes he committed at S-21. He raised a jurisdictional defense at the last moment. Notwithstanding his responsibility for the crimes, since the court’s personal jurisdiction covers those most responsible, he does not regard himself in that category [and he denies being a senior leader].” Khan confirmed that such a claim is time barred under the Internal Rules and that there is abundant jurisprudence in the international criminal and hybrid tribunals on “most responsible” to reject Duch’s argument. Khan continued, “Duch refused to disclose the full truth of his motivation at S-21. Rather than be a reluctant party, he was an active participant; he fell prey to the whole atmosphere of the Democratic Kampuchea regime. His refusal to say he was an enthusiastic participant leaves us short-changed.”

Labels: duch, Duch Closing Arguments

By David Scheffer, Professor and Director of the Center for International Human Rights, Northwestern University School of Law

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Trial Footage - Transcript


On Thursday, November 26, 2009, international defense counsel François Roux rose to deliver about four hours of closing arguments in the trial of Kaing Guek Eav (alias Duch) before the Extraordinary Chambers in the Courts of Cambodia (ECCC). He made two dramatic announcements at the outset: 1) he had to revise his pleadings overnight in light of the argument made by his co-counsel, Cambodian Kar Savuth, on November 25, and 2) this would be his last pleadings as a lawyer. In the latter respect, Roux said that it had been 37 years since he took the oath as a lawyer and at the end of this day he would be taking off his gown. He will head up the defense office of the Special Tribunal of Lebanon in The Hague and continue his commitment to the service of international criminal justice. He dedicated his words during the day to his grandchildren and to the young generations, particularly the young female lawyers on the civil party counsel teams in the courtroom.

Roux continued that “to stand up and speak in defense is what makes our job noble.” He stood “beside one accused of one of the most serious crimes imaginable—crimes against humanity. When I hear such a plethora of mistruths by the co-prosecutors and not hear anything of our humanity, of how the accused has provided the co-prosecutors with the bulk of the charges against him, then I stand tall as a defender.”

“Beneath the gown,” Roux said, “there is a human being—a man so perturbed by what the victims have experienced. My compassion and respect as a human being tell me this morning that I was pleased to hear all civil party groups say that this trial for our client has been the first step on the road to catharsis. Let us celebrate that this little drop of water will cool the great suffering they have endured. The civil party groups are defending the presence of victims in our proceedings. This is the beginning…to make sure this happens for the first time in an international criminal court: the presence of victims as civil parties.”

Looking at the ECCC itself, Roux asked, “How many cynics said it would never take place? And then the trial took place, with all the complexities we had to deal with and transcend. But here we are; we’ve done it. Today, we can say this trial will be inscribed in the annals of international criminal justice that is evolving in our time. It is still a child. We’re all trying to find the best way forward. At the end of the day justice is rendered. But you, the judges, are not in charge of effecting reconciliation. You cannot force reconciliation. But you must render justice. You are not here to fight impunity. That is the co-prosecutors’ job. You are here to render justice in a court whose strength is to enable adversarial proceedings.”

After noting the work of the Truth and Reconciliation Commission in South Africa and Desmond Tutu’s writings that it had allowed for the rebirth of the human race in his country, Roux said, “At times, we had the impression as though we were taking part in a truth and reconciliation commission in this courtroom. It is to the honor of Cambodia that this court has allowed so many to follow the trial, which serves as a model for that purpose.”

Roux acknowledged what had been so apparent on Wednesday—a huge last-minute rift between his strategy for the defense of Duch and the strategy of his Cambodian co-counsel, Kar Savuth. He described some of Savuth’s objectives as unacceptable and would let him prepare his own rebuttal for the counterattack that was sure to come from the co-prosecutors. First and foremost, Roux admitted that the case law of the International Criminal Tribunal for the Former Yugoslavia had dealt at length with the criteria for who falls within the category of “those most responsible” for the commission of genocide, crimes against humanity, and war crimes. The national law of Cambodia simply is not applicable on that issue, “and therefore international law must prevail,” he said. International law had already been introduced into domestic law in this respect.

Second, Roux had to address the vexing reality that Savuth essentially had argued the innocence of Duch under the ECCC Law and 1956 Penal Code and thus for his acquittal of all charges. In contrast, for months Roux had guided his client through many representations of responsibility for the crimes charged in a manner that constituted a de facto guilty plea (even though such a plea technically is not available under the law for the ECCC). “We cannot ask for acquittal of the accused as well as enter a guilty plea for him,” Roux conceded. Although Duch will not literally plead guilty, “who is in a position to dispute the tears wept by Duch? Who can contest his apologies? These were moments of truth that were experienced by an accused person who wept before victims and the co-prosecutors and who proclaimed, ‘These are the words I have waited to utter for 30 years.’ Who can dispute that? Duch has acted with utmost sincerity and has been utterly moved.”

Roux said that Duch recognizes his guilt, and that fact alone is a historic moment for Cambodia. “We must build the truth,” he advised. “We heard a man apologize on his knees yesterday.”

Roux then received permission from the judges to show a film from the trial of Dragan Obrenović before the International Criminal Tribunal for the Former Yugoslavia (ICTY). Obrenović was the acting commander of the Zvornik Brigade of the Bosnian Serb forces that swept through Srebrenica in July 1995 and executed Muslim men and boys. He entered into a plea agreement with the ICTY prosecutor and plead guilty to one count of the crime against humanity of persecution, and was sentenced to 17 years imprisonment on December 10, 2003. The film extract showed the closing statement of the prosecution regarding his sentencing. It was a powerful and eloquent statement for the ECCC trial audience to watch, for the ICTY prosecutor explained the admission of guilt by the defendant, his remorse, his cooperation with the prosecutor, his provision of the truth about what happened at Srebrenica, and the prosecutor’s basis for seeking a 17-year sentence.

Following the showing of the film, Roux rose and said simply, “So there you have it. This is what this trial should have been. This might have prevented what happened yesterday afternoon [i.e., Savuth’s pursuit of an acquittal].” Roux emphasized that Obrenović did not admit to everything; in fact he plead not guilty to all charges until the first day of his trial. Then he approached the prosecutor and only at that time did he plead guilty to one charge. “It was not a deal,” Roux said. “It was a dialogue, a discussion between the prosecutor and the defendant.”

In civil law, Roux continued, the guilty plea does not exist as such. But the court can draw upon international law for the application of what constitutes a guilty plea in a case and trial of this character. “The co-prosecutors missed their date with history, and this led to frustrations in public opinion among the victims that Duch is not telling them all that he should. What a waste! From the outset Duch told the co-investigating judges that he is guilty and responsible for all of the crimes. But no, the co-prosecutors decided to submit to the conventional argument whose underlying philosophy is, ‘This man is a monster.’ Instead, we must understand how a decent man becomes a torturer. That is what I would have liked the co-prosecutors to say.”

Roux initiated the core theme of his closing argument, which he drew from expert witness David Chandler and his writings: “This is a case about the crime of obedience. How do you become a criminal when you have been obedient?” Roux did not want Duch to be a scapegoat; he should not bear on his head all of Cambodia’s atrocities. He ripped into the co-prosecutors’ “gratuitous statements” and “farcical words” describing his client. He challenged Craig Etcheson, who works in the office of the co-prosecutors, as an expert.

Roux rhetorically asked, “Did Duch become Pol Pot?” Then he said, “I apologize to the victims for what I am about to say: How many died at S-21—about 12, 280. In Cambodia, 1.7 million people died. S-21 was responsible for less than one percent of the deaths in Cambodia. And yet we are to believe that Duch was a terror that bathed the country in blood!”

There was no question, Roux continued, that Duch has admitted the facts. The loss of life in Cambodia was huge. He has acknowledged responsibility for lives lost at S-21 and in particular for torture and executions there. He never wavered in admitting this. Roux then recited a litany of admissions of facts by his client, where he admitted to heinous crimes at S-21 and said he was criminally responsible for the acts committed on his watch. He confirmed his own remorse and that he was extremely ashamed, that he has shame he carries with him each and every moment of his life. Roux quoted Duch when, on June 15, 2009, he admitted that he betrayed his friends and that what he did “transcends cowardice.”

Roux pointed out, forcefully, that Duch had agreed to cooperate during the investigative phase of his case and during the re-enactments. “He takes nothing away from the seriousness of the crimes. He is full of remorse,” Roux contended. But, he said, the co-prosecutors lacked contact with Duch. As his lawyers, Roux and Savuth see him alone when he speaks freely from the heart, when he collapses into tears. Roux railed against the co-prosecutors for not acknowledging, in their written submission to the court, Duch’s admissions of guilt. “Not once have they said it in their final submission!” The co-investigating judges recognized the admissions and said Duch acted out of fear and shame.

At the proceedings on September 16, 2009, Roux recited to Duch co-prosecutor Robert Petit’s statement regarding what he wanted from Duch as an admission of guilt. “Do you admit to it?” Roux asked Duch. “That you implemented it all? Yes or no!” Duch replied, “Yes, I admit it completely.”

Roux looked at the co-prosecutors and asked, “So how can there still be a shadow of doubt with the co-prosecutors? How, two months later and the submission of a 160-page brief to the court, could the co-prosecutors not confirm Duch’s admission of September 16?

Roux then raised the expert testimony of David Chandler. He reminded Chandler of Duch’s admission on April 17, 2009, that he was ashamed of photographs from S-21 where he looks proud of the work he was doing. “I am ashamed,” Duch said. “It is shocking and one feels shame when depicted in such a photograph.” Roux said Duch recognized that he ordered and supervised crimes. When asked about this, Chandler said, “Yes, what Duch said will serve history. I was very impressed by Duch’s admission of guilt. He is unique among the surviving actors of the Khmer Rouge regime."

Roux accused the co-prosecutors of reinventing the history of Democratic Kampuchea. They had explained it was a dictatorship. “If S-21 occupied an important position,” Roux responded, “and its head had such autonomy in decision-making, indeed that he advised his superiors and frightened them, well, then it’s not a dictatorship anymore. It’s participatory democracy where there are no superiors!” He continued, “Duch was the subordinate of Son Sen. You cannot avoid that fact! Duch never enjoyed full autonomy in his position at S-21. The prison was closely monitored from the very top of the CPK leadership. S-21 was in the grasp and control of the Central Committee. 78 percent of those killed at S-21 were members of the regime. S-21 was directly controlled by the center of the regime.”


The testimony of Craig Etcheson presented a new version of the facts, Roux contended. Etcheson maintained that Duch had fueled the paranoia of the regime leaders. Chandler had testified that S-21 confessions were like a mantra protecting the party from others. Etcheson admitted that the Standing Committee controlled all communication in Democratic Kampuchea and that it was a top-down hierarchy. Roux said that Duch’s mission was defined by the fact that anyone who entered S-21 was to be executed. “This was the sinister task Duch was given. It is a rewriting of history to claim that Duch had the will to choose independently who to arrest or who to execute.” Roux objected to Etcheson’s effort to cast Duch as a source for a constant purge in the ranks. Once again, Roux said that 12,380 deaths are one too many, but they are not 1.7 million deaths that the senior leaders of Democratic Kampuchea must be responsible for.

Duch’s job was simply to elicit confessions at S-21, Roux said. He was an instrument in the hands of the party and he acted like an obedient machine. “He had to choose to kill or be killed,” according to Roux. Chandler testified, he said, that if Duch did not obey orders, death was certain. Etcheson testified to this reality as well. Why did Duch not escape? The answer was based on common sense. Others had more power than Duch and they were unable to escape with their lives. All of the CPK leaders who entered S-21 were unable to escape. “This was a system of paranoia, of madness,” Roux concluded. “You are reproaching Duch for doing something demanded of everyone!” He continued, “Isn’t it too comfortable to see Duch as a monster? The co-prosecutors don’t have the courage to seek a life sentence; they opt for a 40-year sentence. Isn’t that too comfortable a solution?”


Roux advised that the real task of the co-prosecutors should be to discover the phenomenon whereby a normal man becomes a murderer. We return, he said, to Chandler’s ultimate quest: the crime of obedience. Roux said he had defended civil disobedience in the courtroom for 35 years in an effort to change the law in the same spirit as Gandhi practiced in India. Roux took note of what President Barack Obama had said months ago, that those individuals fulfilling in good faith the advice of the Justice Department during the Bush Administration on the interrogation of terror suspects, which included acts of torture, would not be prosecuted. How can that instruction stand in contradiction to what Duch confronted at S-21, namely to follow the orders on interrogation of prisoners? Why didn’t the U.S. personnel disobey? “If we don’t learn how to disobey in a democracy, how do we do it in a dictatorship?” We all operate in a world, Roux said, where we ask our superiors what to do. Are we all engaged in crimes of obedience? “After 35 years of defending acts of disobedience, here I stand defending someone who slavishly obeyed his orders.

Roux next turned to the co-prosecutors’ continuing attempt to hold Duch liable under the joint criminal enterprise theory (JCE). He argued that the trial chamber cannot determine that Duch committed acts in joint criminal enterprise with individuals whom you did not give the right to appear to defend themselves of that accusation. The co-prosecutors should have sought a closed session so that these individuals could testify and defend themselves from JCE theory.

Further, Roux stressed that Duch cannot be prosecuted for committing torture himself, as the co-prosecutors sought this week. The Pre-Trial Chamber had rejected that charge. Roux then launched into a lengthy critique of Rule 87, which requires the judges “must be convinced of the guilt of the accused beyond reasonable doubt.” He claimed there was a problem in the translation of the rule from the original English into French. He hoped the judges would be guided by “your intimate conviction” when deciding Duch’s guilt.

Roux sought to portray Duch’s more humane side as a “sweet” and “nice” man. He quoted from page 256 of Nic Dunlop’s book about Duch, where Duch, long after the Pol Pot era, averted an outbreak of typhoid in the humanitarian camp where he worked and saved countless lives in doing so.

Roux raised the prospect that Duch suffered from post traumatic stress disorder, which may cause the victim to evade reality and to be emotionally insensitive. Roux remained convinced there were certain things Duch was still not telling him, and that PTSD might be the reason.


Regarding the sentence against Duch, Roux noted that the other criminal tribunals regarded obeying superior orders as a mitigating circumstance. Duch, he said, was in the chain of command and was a servant and hostage of the regime at all times. Duch also is continuing to cooperate in Case 002, Roux revealed. In fact, Duch and his lawyers met with the co-investigating judges about two weeks ago and will do so again next week. Roux regretted not stressing this fact of continuing cooperation of the defendant earlier in the trial.

Roux envisaged Duch sentenced to the duty of explaining to younger generations touring Cheong Ek, the killing fields, what must not be done in the future.


Since yesterday, Roux admitted, there was no longer a guilty plea by his client. “We are in the Albert Speer defense now. At Nuremberg, Speer did not plead guilty but he acknowledged his responsibility. Prosecutor Jackson gave value to Speer’s acknowledgement, saying he was the best among the worst of the defendants at Nuremberg. Speer received a 20 year sentence. Obrenović got 17 years. “Can Duch still be useful to humanity?” Roux asked. Roux claimed that Duch had been a fugitive for 20 years and imprisoned for 10 years. So for 30 years he has not been a free man—a point the co-prosecutors doubtless will contest on Friday. Roux said Duch already had paid for the evil he has committed. “Send him home!” Roux pleaded. In human eyes, Duch will never be forgiven. “But can we look Duch in the eye and see him for the human he is? Will you bring Duch back into the fold of humanity? Duch is dead. Today his name is Kaing Guek Eav. He is no longer the Duch of the revolution.”

Roux sat down, having completed a brilliant, albeit contestable, closing argument. The rebuttal phase of the closing arguments then commenced with the civil party lawyers leading the statements.


Karim A. A. Khan began the rebuttals of the civil party groups in his capacity as counsel to Group 1. He acknowledged Roux’s elegant delivery, great wealth of experience, charm, and ability. But Khan immediately went on the attack. He accused Duch of trying to ride two horses. At the last possible moment, things changed on Wednesday. For months Duch had expressed a guilty plea in all material respects, and yet now he seeks to be acquitted and set free. That is unfair to the people of Cambodia, Khan said.

There is no provision similar to Rule 71 of the Internal Rules for a disagreement between defense counsel. That kind of disagreement logically should be resolved by the client who would give instructions to counsel as to what the client desires. In some respects, what happened with Mr. Savuth’s closing argument on Wednesday was an abuse of process, Kahn said.

Kahn turned the tables on Roux’s allegation that the co-prosecutors had missed their date with history. “In my view,” Kahn said, “Duch has missed an important opportunity to speak clearly, spontaneously, and candidly to the court. He was the de jure head of S-21 but in fact voluntarily joined in that venture. He turned away from the co-prosecutors rather than engage them.” An act of contrition and expressions of sincerity and frank acceptance of the truth are priceless and are all that Duch can offer the civil parties. Tears alone are not determinative, Khan said.

Khan said that Roux’s raising of post traumatic stress disorder was entirely irrelevant, that this is a court of law and not someplace where you can bring unsupported hypotheses into the courtroom at the last moment.

“There were 12,380 moments when Duch could have done the right thing. But he has been content to leave it all opaque,” Khan contended. He continued that the defense fundamentally misconceived the issue of extending the statute of limitations on the 1956 Penal Code, as Savuth had contested on Wednesday. As for Savuth’s claim of lack of personal jurisdiction, under Rule 89 preliminary objections of that character should have been filed within 30 days of the closing order. In any event, there are reams of case law to knock out the argument. On the issue of joint criminal enterprise theory, Kahn noted the Seromba judgment of March 12, 2008, by the International Tribunal for Rwanda. There the judges found it irrelevant that the accused did not personally drive the bulldozer that became a killing machine. The accused exercised influence over the driver and that was sufficient to find JCE in that case.

Khan concluded by saying, “We don’t know what is being said by the defense anymore. Mr. Roux claims Duch is not pleading guilty, but has contrition. Mr. Savuth wants Duch released as a free man.”

Silke Studzinsky rose for Group 2. She immediately argued that the non-guilty pleading of Savuth on Wednesday was “a slap in the face of the civil parties.” They were shocked by his request for Duch’s acquittal and immediate release. Duch was and continues to play a good game, she said. But the time has come to shed the sheep’s clothing. Studzinsky then repeated and elaborated upon many of the points raised by Khan a few moments earlier. She emphasized that the objection to personal jurisdiction should have been pleaded earlier and is not admissible at this stage. Savuth fundamentally misunderstood Article 31 of the Cambodian Constitution, which has no concept of equality for injustice. That right does not exist, she said. The legality of a decision cannot be sanctioned for failure to prosecute others.

Savuth’s arguments regarding defense of superior orders insults the civil parties, Studzinsky claimed, and in any event does not relieve Duch of culpability. It can only be considered as a mitigating circumstance for sentencing.

The new logic of the defense team seems to be, Studzinsky said, that Duch completely escapes criminal responsibility and that only Pol Pot is liable! Duch’s defense strategy does not contribute to the reconciliation process. The civil parties are even more alienated now. Indeed, the defense strategy contradicts the defendant’s genuine remorse of prior statements. His wish to return to Cambodian society must be rejected, she concluded.

Martine Jacquin rose for Group 3. She said that the civil parties had not heard words of deep contribution from Duch. “You lacked courage under the Khmer Rouge. You lacked courage here as well! You did not fundamentally ask for forgiveness. You missed an appointment with the history of your country. You have not understood the civil parties. You have not distanced yourself from the murderous Utopia of the regime. You seek the pity your victims never had.” Throughout Jacquin’s statement, Duch stared at her. (Usually, he looks away from opposing counsel.)

Philippe Canonne followed (and Duch looked away) and began by praising Roux for his decades of service to the law. He said, “How much we would have appreciated a guilty plea. We could have come closer to a fair sentence. This would have been a bridge. We expected words of sincerity, not of convenience. We heard from Duch a piling up of events, of case numbers, document numbers. Perhaps Duch has not understood a single thing here. Perhaps he is still lost in his footnotes. He operated in the most absurd bureaucracy where reason and sensitivity were completely absent. And now the defense asks for his acquittal. This is irresponsible!”

Canonne argued that an order must be disobeyed if it is cruel and Duch had the leeway to do that, but refused to do so. Not once was there any discussion of reparations by Duch. How could the civil parties hear the statistic of only one percent of all deaths in Cambodia at that time occurred at S-21? “How can you say that to them?! These are heavy statistics that weigh on the hearts of all survivors.”


Hong Kim Suon spoke for Group 4. He spoke emotionally and twice stopped for many seconds to collect himself. He said he was a victim and it was hard to compose himself. “I apologize for not controlling my emotions,” he said.

Hong Kim Suon accused Savuth of contradicting what Duch had already said in the trial regarding his own responsibility and thus inflicted more pain and suffering on the civil parties. Was it convincing to argue that Duch was not among the most responsible or not a senior leader? Duch was most responsible when he oversaw the execution of over 12,000 people. His experience at M-13 made him trusted by the regime and promoted to S-21 to extract confessions. It is a lie, Suon said, when Duch claimed he could not escape and was simply a cog in the machine. He personally annotated for years all of the death documents.

Suon called for a harsh sentence. He requested that Duch’s apology be broadcast on radio. Oddly, Suon closed by proposing that a statute of Duch, in uniform, be erected at S-21 to remind everyone he is a criminal. Cambodians in the public gallery gasped at the suggestion, some laughing at it and others with expressions of horror on their faces.

Labels: duch, Duch Closing Arguments

By David Scheffer, Professor and Director of the Center for International Human Rights, Northwestern University School of Law

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Trial Footage - Transcript
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International Co-Prosecutor William Smith continued his closing arguments in the trial of Kaing Guek Eav (alias Duch) before the Extraordinary Chambers in the Courts of Cambodia (ECCC). The defense rose following his statement, first with the defendant Duch speaking and then his Cambodian defense counsel, Kar Savuth, delivering his entire closing argument. The international defense counsel, François Roux, will present his closing argument on Thursday, November 26.


Smith described Duch as a perpetrator of multiple forms of liability under Article 29 of the ECCC Law, in other words, someone who planned, instigated, ordered, aided and abetted, and committed crimes against humanity and war crimes. Duch had to fulfill all these modes of participation in order to establish and operate S-21, Smith argued. He also charged Duch as a superior who failed to prevent the crimes of or to punish his subordinates. In fact, he hired staff for the express purpose of committing crimes.

Smith made the case for joint criminal enterprise liability (JCE) as well before the judges. This is an issue that has been deferred to the merits judgment of the Duch case, so the international co-prosecutor was compelled to make his best argument for it in his final submission. JCE captures the essence of Duch’s responsibility, Smith argued. The efficiency of S-21 could not have been achieved without the planning and collaborative work with both superiors and subordinates that Duch orchestrated as chairman of the prison.

The statutes of other international and hybrid criminal tribunals of the modern era refer to the same modes of liability as does the ECCC Law, and therefore Smith inferred that what emerged from those tribunals as JCE should be applicable to the ECCC as well. He said that the drafters of the ECCC Law intended it to be part of the body of international precedents represented by the tribunals. Thus, refusing to apply JCE as a mode of liability would put the ECCC at odds with the very tribunals it was intended to model itself after.

The grand criminal vision of JCE is to employ others as a tool to achieve a criminal goal. The result can be far more serious commission of crimes than when they stand alone. JCE, Smith proposed, perfectly captures the scope of crimes by Duch. The co-prosecutors obviously disagree with the Pre-Trial Chamber’s ruling that denied JCE and Smith requested that the Trial Chamber find Duch guilty of JCE.

Regarding Duch’s personal commission of crimes, they were limited to a small number of very significant acts, Smith contended. He should be guilty, the co-prosecutor said, under the mode of physical commission of crimes as well. Smith concluded that the co-prosecutors had proven beyond a reasonable doubt crimes against humanity, grave breaches of the Geneva Conventions, and two categories of violations—homicide and torture—of the 1956 Penal Code of Cambodia.

Smith delivered a lengthy statement about the sentencing of Duch in the event he is proven guilty of the charges (to which he already has admitted his guilt). Smith said that in international criminal jurisprudence there are no real guidelines on sentencing. It was necessary to look to the sentencing principles of other tribunals. Under those standards, the sentence must reflect the gravity of the crimes. Here there was the utmost gravity in both number and type of crimes which were committed daily and systematically at S-21. The crimes committed had long-term physical and mental impacts on the victims and their relatives. Three survivors of S-21 who testified in the case are permanently scarred from their imprisonment and severe mistreatment, including emotional instability. The family survivors extend around the world, with many families ripped asunder by what happened to their loved ones at S-21. For some, suicide has been the only way to deal with grief. The number of such family victims is unknown, but surely, Smith believed, they must number in the tens to hundreds of thousands. The costs are still being felt today, with countrywide post traumatic stress disorder experienced by countless victims.

The extent of Duch’s participation depends upon the court’s examination of whether Duch inflicted pain with his own hands and whether, with his superior position at S-21, he inflicted such pain through the work of others he supervised. If both, he becomes more culpable. If he engaged in such acts enthusiastically, then his criminal participation becomes even more serious. If he acted voluntarily and with pre-meditation, then his participation reaches its zenith. In fact, Duch stayed with the Communist Party of Kampuchea (CPK) throughout the violence. He was an effective leader, Smith argued, who relished in transforming staff into killers. He mastered all details of his work. As chairman of S-21, Duch had significant responsibility for a wider net of torture. Thousands were arrested, tortured, and killed at Tuol Sleng. He toured interrogation cells, personally kicked detainees, and forced prisoners to fight each other. Duch was one of the most effective tools of CPK policy to seek out and kill assumed enemies. Indeed, what he accomplished has rarely been matched in world history regarding the scope and callousness of the criminal conduct.

Smith reminded the court that Duch was highly educated, intelligent, and logical. He made the choice to be part of the CPK rather than to withdraw from it. As chairman of M-13 for four years prior to Pol Pot’s rule of Cambodia, Duch knew what was expected of him—to arrest, detain, interrogate, torture, and execute CPK enemies. Indeed, he personally tortured many times himself during those years.


Smith then advanced the aggravating factors that should guide the court’s consideration of a sentence for Duch. First, Duch’s authority at S-21 was not itself an aggravating factor, but how he used it may be. He should have protected the rights of the detainees there and he failed to do that. In fact, he did the opposite. He never acted as if he were under any duty to protect the welfare of the prisoners.

Second, the infliction of unusual pain and suffering on victims is an aggravating fact, Smith argued. What he oversaw was particularly savage, sadistic, and ruthless. The catalog of brutality at S-21 was truly grotesque and Smith went on to describe how that was so. The terror, shock, and fear were beyond our imagination, he said. Prisoners saw what foreshadowed their own fate. “Imagine what each prisoner felt when fellow prisoners disappeared and they waited for their own names to be called. Imagine how many contemplated suicide,” Smith suggested.

Smith described the defenselessness of the victims at the killing fields. He suggested that all three of these aggravating factors are directly relevant and must be taken into account in Duch’s sentence.


He next turned his attention to mitigating factors in the sentence. On the issue of duress, the evidence does not support Duch’s claim that he hated his work. He was a man of terror, not a victim of terror. The defense has not proven, Smith argued, that Duch was subject to the terror that began to grip the country in 1978. As Elizabeth Becker has written, Smith said, Duch was one of a half dozen of the most important leaders in the country at that time. He spread terror throughout Cambodia in his capacity as chairman of S-21. He designed the terror machine and he was an enthusiastic participant in it.

The defense of superior orders, which is addressed in Article 29 of the ECCC Law, requires that a subordinate relying on the defense as a mitigating circumstance must show the order had an influence on his behavior. But the defense collapses if the defendant would have committed the crime anyway without specific orders. Duch actually desired to carry out the revolution and smash its enemies, rather than simply comply with orders. In sum, duress and superior orders do not apply with respect to duress and thus should not be considered as mitigating circumstances.

Cooperation with the court is a mitigating factor under international criminal law. The test rests on the quantity and quality of the information provided and if it is given selflessly without any quid pro quo. Early cooperation also is important, as is cooperating in the investigations of other trials. If the information provided is limited or not entirely true, then cooperation would not be considered sufficient. Duch made the choice not to surrender from 1979 to 1999. For 20 years, he was a fugitive; indeed for the first 15 years of that period, he collaborated as a fellow fugitive with the senior leaders of Democratic Kampuchea. He changed his name and did not reveal his connection to S-21. Only when photographer Nic Dunlop tracked him down did he find it impossible not to reveal the truth. He would not have been arrested and imprisoned but for Dunlop’s persistent tracking of him.

Granted, Duch has provided evidence recently regarding the CPK and with respect to other charged senior leaders. But, Smith contended, Duch only admitted part of the truth regarding his own conduct. He essentially has confessed, “I did really terrible things but it’s not my fault; it is the fault of my superiors.”


Further, the defense strategy at the trial, Smith explained, is to try to limit the court’s efforts to review the facts. The cumulative effect of the defense’s challenges is to try to reduce the impact of the crimes and Duch’s own liability for them. The defense has claimed little evidence that would bring Duch into the ECCC Law Article 1 personal jurisdiction of the court. The defense objected to any evidence being admitted regarding Duch’s behavior at M-13 prior to the temporal jurisdiction of the court. That deprives the court of reviewing evidence regarding the character of Duch as a killer. In contrast, defense counsel wanted the court to hear about Duch’s good behavior as a young student, long before the atrocities of 1975-1979. The defense also objected to detailed witness summaries, a tactic clearly designed to make the voluminous written evidence less easily available to the court. Judges need summaries as a roadmap to understand key issues in the case. But the defense aim was clear—to instill less clarity.

The defense objected to a reserve witness list, which would fill gaps if witnesses suffered memory loss or some other setback. Smith considered reserve witnesses essential because the court has prohibited the co-prosecutors from meeting with witnesses in advance. Since most witnesses were former S-21 staff, it is difficult to know whether the particular individual will lie or limit the information requested out of a sense of personal guilt or embarrassment. This actually proved true during the trial, with a general reluctance to speak freely. When the defense energetically advised a witness who had been an S-21 interrogator that he might be prosecuted in national courts, the defense sent a message all similar witnesses that they might be prosecuted in national courts. The defense injected fear into every S-21 witness. The tactic does not encourage witnesses to tell the truth; in fact, the defense took great pleasure in the witness not telling the truth. Finally, the defense sought to limit the documents to be delivered to the court, including documents relating to expert Craig Etcheson’s findings on the existence of an international armed conflict.

Thus, on one level Duch provided evidence regarding the CPK regime and he assisted in providing information voluntarily to the court. On another level, however, Duch was not cooperative about his own role at S-21. He stated a truth only when it proved too difficult to maintain a falsehood. “You cannot challenge the trial process throughout and then claim you have cooperated with the court,” Smith said.

Regarding Duch’s admission of guilt, Smith described it as limited in character. When pressed on his own involvement in the crimes, Duch was always recalcitrant in the courtroom. He claimed he was forced to torture and kill. He must, Smith demanded, accept and face up to the truth with the enthusiasm of an argent revolutionary. He has not accepted full responsibility for crimes before this court. His remorse is limited by his denial of responsibility. Duch has an inability to empathize.


Would a reduced sentence for Duch contribute to national reconciliation? Smith said it is a legitimate consideration, but Duch’s behavior has not added significantly to national reconciliation. The purpose of the court is to end impunity. A heavily reduced sentence would hamper and not help reconciliation. National reconciliation is the by-product of the trial, not its purpose. Duch’s admissions cannot have any impact on peace in the country. He failed to demonstrate that a lighter sentence would be advantageous for national reconciliation. “Humanity must be made whole by sternly punishing one of its own,” Smith said. “That will do far more to advance reconciliation than a disproportionately lower sentence.”


Smith spoke favorably of giving Duch credit for the time he served under the jurisdiction of the Cambodian military court prior to his arrival at the ECCC. That prolonged detention was a serious violation of international law. “Here, the rule of law must apply,” he proposed. When an accused is not brought to trial in a reasonable period of time, such a violation of law must be remedied. Smith recommended that given the gravity of the crimes in this case, the court should start with life imprisonment for Duch’s sentence. The court should take the breach into account. A fair course of action would be to commute the sentence of life imprisonment to a determinant sentence.

Smith claimed that Duch had been met with a fair trial by independent and impartial judges. He should be sentenced only for crimes he committed. At S-21, the detainees never had such justice. Duch ensured that they were treated as animals. Nothing can justify the brutality at S-21. Duch worked tirelessly to identify, arrest, and “smash” enemies. He repeated apologies and shed tears at Cheong Ek. Smith acknowledged Duch’s admissions of guilt. But he saw no remorse in Duch’s refusal to reject his active participation in the crimes. Whenever possible during the trial, Duch sought to minimize his role, claiming he was trapped by secrecy and terror. But the court must not allow him to hide behind false claims, Smith pleaded. Duch was a loyal and dedicated agent of the CPK.

Smith quoted William Shawcross, the English prosecutor at Nuremberg, who said, “There comes a point when a man must refuse to answer to his leader if he is also to answer to his conscience.” Duch refused to answer to his conscience. He willingly and enthusiastically abandoned all respect for human life. He had a choice: the abuse of power or his conscience, and he chose the former.

Smith believed that Duch deserves a sentence of life imprisonment, but that it had to be reduced to a fixed number of years. He recommended adjusting the sentence to 45 years to reflect a credit for time served at the military court and as an additional remedy for being detained there without trial and contrary to international criminal law. Smith recommended a further reduction of five years in recognition of Duch’s general cooperation, conditional remorse, and apologies, and the possible effect his conviction will have on national reconciliation. Thus, Smith proposed a sentence of 40 years for Duch.

Smith closed by saying that all should be mindful of the dreams and opportunities denied due to the crimes at S-21. The families of the victims still suffer today. “This court must speak on behalf of that humanity, that crimes like these must never be perpetrated again,” Smith said. “Let your judgment speak of justice and establish criminal responsibility for 12,000 crimes. You are not taking away Duch’s humanity; you are giving it back to the victims of S-21.”


Duch, who again declined to look at Smith during the latter’s statement, read his closing statement facing the judges and a packed auditorium of Cambodians. He focused almost exclusively on the CPK’s policy of killing its alleged enemies and distancing himself from the decision-making that drove that policy. Both Duch and his Cambodian defense counsel, Kar Savuth, later referred repeatedly to the practice of “smashing” at S-21 and elsewhere in Cambodia during the Pol Pot regime years. They could have ceased using that highly derogatory word, which was part of the Khmer Rouge strategy of dehumanization, in the courtroom and referred instead to “murdering” or “killing.” It seemed odd that the very terminology the Khmer Rouge leaders would want us to apply in conformance with their own usage during the 1970’s repeatedly infected the court proceedings.

Duch set out a fairly detailed description of how the CPK developed a policy of killings to protect the Party itself and how internal purges became standard operating procedure from the beginning. He admitted that before 1975 he already was plunged deeply into the criminal acts that defined the internal purges. “Anyone the CPK identified as the enemy had to be smashed—no one could challenge that,” he admitted. He was afraid of being removed if he did not join in the CPK policy. “I knew how to control and save myself.” He identified ten individuals who decided who would be killed and who would be spared. The list included Pol Pot, Nuon Chea, Ta Mok, Son Sen, and Ke Pauk. No one else had such a right, he contended.

Duch read through a tedious list of the leadership structures (and the changes therein over time) in each zone of Cambodia, as if to emphasize that he was not in any of the leadership slots. He claimed he could do nothing about the overall policy of “smashing.” Pol Pot, he said, was the criminal. “He wanted to become King.” As for S-21, Duch claimed that it was under the supervision of Son Sen, to whom all annotated confessions were sent for transmission to Pol Pot for final decisions. S-21 was unique because members of the Standing Committee were detained and killed there. “These people were a thorn in Pol Pot’s eyes,” Duch said. The people killed at the 195 other detention centers were “innocent and honest people who committed no wrong.” He said he was still terrified about what happened to all those innocent people.

Duch said he was responsible and would be forever liable for the crimes at S-21: “I am accountable to the entire Cambodian population for the souls that perished. I am deeply remorseful and regret such a mind-boggling scale of death.” He continued, “I ended up serving a criminal organization. I could not withdraw from it. I was like a cog in a machine. I regret and humbly apologize to the dead souls. I acknowledge all of the crimes at S-21 in a legal and a moral context.”

Duch hoped that the victims would leave their doors open for his apology. He claimed to fully and sincerely cooperate with the courts, including the military court where he was first detained. He wanted to be recognized again as a member of humankind.

Duch finished by reading all 34 footnotes to his statement, without any reference for the audience as to what point in the text the individual footnote referred. It was an odd finish, but emblematic of the teacher in Duch and his attention to details.


Duch’s Cambodian defense counsel, Kar Savuth, spoke for almost three hours. He repeated many times and presented information that he argued supported a general theme: that Duch was neither a senior leader of the Khmer Rouge nor someone who had the most responsibility for the commission of the crimes covered by the court (ECCC Law and UN/Cambodia Agreement Article 1 personal jurisdiction requirements).

Savuth pointed out that there were 196 security prisons and that each district had mass graves. Why, he asked, were the chairmen of the other prisons “living happily with their families” while his client, Duch, sat in the dock as a scapegoat? Compared with the larger numbers of victims at some of the prisons, Duch killed very few people at S-21, he said. Savuth returned to this theme repeatedly throughout his oration.

He also objected to the extension of the 10-year statute of limitations by 30 years for certain designated crimes under the 1956 Penal Code as set forth in Article 3new of the ECCC Law. He said it violated the non-retroactivity principle in international law. Since the Cambodian legislature passed the ECCC Law with the extension, Savuth essentially was arguing the unconstitutionality of the law (or at least Article 3new) under Cambodian law—all in an effort to knock out the charges of Article 3new crimes against his client. Thus the court could not prosecute Duch under national law, Savuth argued.

Regarding crimes against humanity and grave breaches (war crimes), Savuth explained that only governments made the decision to go to war and Duch was only following orders. Further, it was the top leadership who ordered and thus was most responsible for the actions constituting crimes against humanity. Since, in Savuth’s view, Duch was neither a senior Khmer Rouge leader nor someone most responsible for the commission of the crimes at S-21, he should not be charged under the ECCC Law. He fails Savuth’s test of personal jurisdiction under that law. In his view, only three individuals should be prosecuted by the court because only three surviving persons fall within the personal jurisdiction of Article 1 of the ECCC Law: Nuon Chea, Khieu Samphan, and Ieng Sary. Furthermore, only these individuals could order arrests and acts of “smashing.” Duch was at the third tier of recipients of orders. The top individual was Pol Pot, then Son Sen, and only then does one arrive at Duch following Son Sen’s orders. “The person who received orders and executed them is not ‘most responsible’ under the ECCC Law,” Savuth argued. He kept returning to his scapegoat theme as well, noting that other chairmen of prisons during the Khmer Rouge regime roam freely in Cambodian society and should be prosecuted if his client is being prosecuted. Such inequality of treatment, Savuth contends, violates the equality provision of Article 31 of the Cambodian Constitution.

While he and his client admit that crimes existed at S-21 (“You can’t cover an elephant with a rice basket.”), Savuth argued that Duch was not culpable for those crimes under the Cambodian 1956 Penal Code or the ECCC Law. He also claimed that Duch acted under duress and Article 238 of the 1956 Penal Code provides that if one obeys superior orders under duress, then the prosecution can only be brought against the superior.

Savuth ignored other provisions of the ECCC Law, such as the denial of defense of superior orders other than for mitigating purposes, and the fact that sufficient records simply do not exist for the other prison camps that would ensure successful prosecutions of other surviving prison chairmen. The voluminous records of S-21, thanks in large part to Duch’s meticulous attention to detail, and S-21’s notorious and systematic use of torture and other methods to extract confessions prior to executions arguably provide the basis for prosecution of him. One must also consider the raw evidence of what actually occurred at Tuol Sleng and who in reality led in the execution of the crimes.

Nor did Savuth consider the intent of the negotiators of the ECCC Law with respect to the scope of personal jurisdiction. He based his entire analysis on what was established on paper in the CPK regarding the issuance of orders. The commission of crimes against humanity and war crimes on the massive scale experienced in Cambodia from 1975 to 1979 cannot rest only on how the CPK defined its leadership structure on paper. It is up to the co-prosecutors, co-investigating judges, and judges to determine who constitutes a “senior leader” and one “most responsible” for the crimes. Since Duch acknowledged his responsibility for the crimes at S-21, Savuth’s arguments today appeared awkward in that he was seeking to deny any culpability under the law for Duch’s actions at S-21. Perhaps international defense counsel François Roux will clarify matters during his closing arguments on Thursday morning.

Labels: duch, Duch Closing Arguments