Chamber and Parties Seek Expeditious Trial, But at What Cost?

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Tough Questions from the Civil Parties and Softballs from the Defense

Civil party lawyers continued questioning Kaing Guek Eav (alias Duch) today on operations at Tuol Sleng prison (S-21) and the killing fields at Choeung Ek.

Focusing her questions on the plight of women at S-21, civil party lawyer Silke Studzinsky asked about the female interrogation team Duch established after his former teacher was sexually assaulted by a male interrogator. Duch did not personally train the make-shift team assembled from the wives of S-21 cadre, but rather they observed five or fewer interrogation sessions before setting out on their own. Without putting forth documents, Studzinsky cited a history book which claims three S-21 interrogators confessed having committed sexual offenses. Duch denied knowledge of these confessions and related incidents. Duch confirmed that rape and sexual abuse were “moral offenses” generally subject to punishment during the Khmer Rouge period; however, he denies contemporaneous knowledge that the documented instance of sexual abuse, in which a male interrogator inserted a stick into a woman’s genitals, was a crime. “I did not study any penal code, so I did not know the law.” Duch doubted even his superiors knew the law. When asked if he knew this behavior was “wrongdoing,” Duch exercised his right to remain silent – which generally signals he feels the question is repetitive.

Oddly, Duch tends to be the main policeman regarding what is repetitive in the courtroom. He generally announces that he chooses to remain silent and then, without fail, President Nil Nonn tells the party his question is repetitive and that he should move on. Duch tends to invoke silence most often in response to civil party questions, especially from Studzinsky whom he does not appear to like. In most cases, the questions Duch deems repetitive refer to subject matter that has been covered, although the specific question has not been answered. Later in the day, the defense asked Duch a series of repetitive questions and no one objected.

Civil party lawyer Alain Werner then put a series of interesting questions and hypotheses to the Accused for comment, striking at the heart of many of Duch’s key assertions. While Duch has claimed he had no alternative but to give prisoners the limited food rations established by the upper echelon of the Communist Party of Kampuchea (CPK), Duch confirmed that he gave away “surplus” rice while S-21 prisoners were dying of starvation. Werner submitted that Duch stayed away from S-21 not because he could not bear to see the suffering as he claims, but because the prisoners had no relevance or value to him as he focused solely on pleasing his superiors. Duch said this proposition was fundamentally correct in that he did everything possible to please his superiors, but then reiterated that he avoided S-21 because he was a coward and could not bear to see his friends there whom he had betrayed.

Werner cited the testimony of Khmer Rouge expert Craig Etcheson, who opined that Duch was promoted to S-21 Chairman because of his inventiveness in developing the practice of extracting lists of co-conspirator names from prisoners. Duch confirmed that there were “inventions” at S-21, but only to fulfill the requirements of party policy. Werner further cited Etcheson’s testimony that Duch’s superior Son Sen was too busy handling national security for the entire country to be involved in analyzing confessions and making orders regarding “unimportant” prisoners. Duch confirmed that certainly Son Sen was busy, but still adamantly maintains Son Sen would not allow Duch to act freely and was involved in all aspects of Duch’s work.

Werner submitted that although Duch was implicated in two enemy confessions, he survived because of his close relationship with CPK leaders Son Sen and Nuon Chea who protected Duch and admired his zeal. As always, Duch sought to maintain his distance from the leadership and simply declared he was so honest and loyal that he left his name in the those confessions for his superiors to see.

While Duch maintains that six lists showing “release” of prisoners while he was the S-21 Deputy Chairman were fake lists designed by Chairman Nat to conceal people Nat arrested and killed without upper echelon authorization, Werner submitted that Duch simply did not want to admit anyone was released from S-21 because then he would be forced to explain why he did not release innocent victims.

Taking the floor, Cambodian defense counsel Kar Savuth asked Duch questions aimed at clarifying the “release” issue raised by Werner. Demonstrating skills gained during his prior career as a teacher, Duch put several documents before the Chamber and described how Nat used a code-name “M-21” to arrest victims unilaterally. Nat then created false release lists of these victims to conceal his unauthorized actions. Perhaps there were translation issues or perhaps Duch was unconvincing, but this section of testimony was a bit confusing. Kar Savuth then asked Duch a series of questions which brought out a few points Duch has emphasized throughout the proceedings: he did not kill anyone with his own hands and tortured only one victim.

International defense counsel Francois Roux then asked Duch to describe the “reenactment” Duch attended in 2008, visiting S-21 and Choeung Ek. Duch described how the visit “shocked and moved” him, “requir[ing him] to pray to God.” Roux then played a three-minute video clip from that visit in which Duch broke down in tears while apologizing to the S-21 victims present. In response to a question from Roux, Duch explained how he made regular offerings for the souls of the victims before his detention and now prays for their souls and asks for forgiveness.

An Unhealthy Obsession with Time?

Since the trial management meeting on June 11, the Chamber has displayed an increased interest in time and mentions the need to move along expeditiously several times each day. It is unclear whether the motivation is coming from the Chamber itself, another body of the ECCC, or the great media obsession with the topic. Oddly, the Chamber’s newly-imposed time limits on the parties took effect as the parties came to questioning the Accused this week on perhaps the most important topic of the trial – the operations at S-21 and Choeung Ek. While the prosecution pays lip-service to supporting time limits, its questions yesterday aimed at setting up later impeachment of Duch were clearly cut short. The civil parties were able to comply with the time limit given that two parties shared their leftover time with the others and they asked Duch to keep his answers brief. Notably, only one or two questions were asked about operations at Choeung Ek over the course of the last two days. Hopefully, this was due to deliberate strategy, rather than insufficient time.

The Chamber announced yesterday that it would hold another in camera trial management meeting on Thursday to find solutions to technical issues faced by the Chamber and the parties. However, Roux requested this morning that the meeting be held this afternoon due to his need to return to Europe urgently on a personal matter. While no party objected to his request, at least one civil party lawyer and President Nil Nonn urged the defense to wrap up its questioning of the Accused – on this critical subject matter – as soon as possible to leave ample time for the meeting. Before Roux started questioning Duch, he thanked everyone for moving up the meeting and said he “consequently” had very few questions to ask. As he speaks French, my hope is that this was a translation issue and he did not express that he would ask fewer questions in the interest of getting to the meeting faster. While the defense was allotted four hours, it only questioned Duch for about an hour. During this time, only one critical issue, the six “release” lists, was clarified while other major issues were not touched upon. Hopefully, this was due to a deliberate strategy or the wishes of the Accused.

Time is on the minds of everyone around the ECCC as funds dwindle and the remaining indictees get older and weaker by the day. Unquestionably, time is a valid concern; however, it is only one of many. After thirty-plus years of painful recovery, many years of difficult negotiations to establish the ECCC, and a long investigation by the Co-Investigating Judges, the historic first trial is finally underway and much is at stake. It is time to obsess about justice, not time. As a young lawyer only in Cambodia for a few months with no personal or financial stake in the Duch trial, I certainly recognize my bias. I want to see international fair trial standards met and justice done no matter how much it costs or how long it takes. In my opinion, a single properly-executed trial is better than five questionable ones.