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

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 | Part 6 | Part 7


Today the co-prosecutors delivered their closing arguments in the trial of Kaing Guek Eav (alias Duch) and will conclude their statements tomorrow. The only drama in the courtroom was the fainting of one court official, which caused a short delay in the proceedings, and an audio failure mid way through the afternoon which caused an early adjournment. The court official was back in her seat working a short time later. The Cambodian and international co-prosecutors read from prepared statements which were summaries of their 160-page written submission to the court. So it was a monotone day of prepared statements mixing detailed expositions of the crimes and law with accusatory insights into the character and motivations of Duch as an alleged war criminal.

The courtroom was packed throughout the day, mostly with large groups of secondary school children in their school uniforms, Buddhists and Cham Muslims, and a sizable group of victims (including civil parties). I looked across the sea of young faces and wondered what they would remember of this day and how many could relate the horrors that had swept through their families three decades ago. When the work of the Extraordinary Chambers in the Courts of Cambodia is concluded, it may well have achieved the largest participation of the victim population of any war crimes tribunal. The credit for that in no small measure goes to the Documentation Center of Cambodia under the leadership of Youk Chhang.


Chea Leang, the Cambodian co-prosecutor, launched into several hours of closing arguments by first acknowleding the statements of civil party lawyers on November 23rd. "They reminded us," she said, "of the never-ending impact of the accused's actions on the victims. It is like a knife that continues to turn inside each one of them for the rest of their lives. They have aching hearts that will never rest." Leang said the co-prosecutors have not been moved by calls for revenge or to forgive and forget. Their task is to prove their case beyond a reasonable doubt and ask that the law be applied fairly based on international standards of justice.

The victims, Leang said, were arbitrarily deemed to be enemies of the Khmer Rouge. They were threatened, intimidated, beaten, executed, forcibly drowned, force fed their own excrement, and subjected to other unspeakable cruelties. They met anonymous deaths in the darkness of the killing fields at Choeung Ek—a humiliating death at the hands of Cambodians killing fellow Cambodians. Leang noted that the victims of S-21 would fill the auditorium of the courtroom 24 times over.

Leang called for nothing less than a lengthy sentence of imprisonment for Duch despite his expressions of responsibility for the crimes, remorse, and respect for the victims. Furthermore, there was nothing remotely democratic about Democratic Kampuchea, she said, and Duch was a key part of that regime. Under it, 1.7 million Cambodians were massacred. The regime enforced a radical ideology that involved ruthless violence. The target of the violence was any non-conformist or anyone who would not submit to the authority of the state.

She described the term "smashed" to mean "executed and crushed to bits--obliterated." It was meant systematically to dehumanize the victims. While the Duch trial only focuses on one prison--S-21--it was no ordinary jail. Tuol Sleng was the model political prison in the entire country.

The Communist Party of Kampuchea (CPK) trusted Duch to discover plots against the revolution. Leang told the court he was totally indifferent to the suffering of the victims. Duch was the perfect candidate to run S-21. “He's always been treated fairly and with dignity by the court and he is represented by experienced counsel,” said Leang.

There are so many crimes of such serious character consuming so many victims—crimes that shock the conscience of humankind, that Leang found the only answer in a lengthy prison sentence. It does not matter that others do not admit guilt (which none of the charged individuals in case 2 have done). She called for the ultimate sanction, presumably meaning a life sentence.


Leang recited the fundamental elements of personal jurisdiction of the ECCC (in other words, “…senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia…” Art. 1, ECCC Law) In identifying the relevant individuals, Leang said the government itself was a sham source of power. The real power lay with the CPK, or "the Party." The Party was headed by the Central Committee and under that the Standing Committee really determined regime policies. The guiding force of "Angka" fed a culture of secrecy and evasion of accountability.

Since the ECCC Law does not provide statutory guidance on senior leaders, the co-prosecutors looked to the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia. Leang explained that they needed to examine the gravity of the crimes, their temporal scope, territorial scope, and the manner in which the crimes were committed. She said they were not limited only to policy leaders. A number of subordinates also fell into the jurisdictional reach of the court. They found in Duch personal jurisdiction both at the senior leader level (his personal oversight of Tuol Sleng) and as a "most responsible" individual (he was permanent secretary of S-21 and intervened daily with the Standing Committee, and thus was responsible for S-21 crimes on multiple levels). As for "serious" crimes, the crimes at S-21 were among the worst of atrocities. More than 12,000 individuals were executed there and that qualified on the scale of “serious.”

Leang raised the defense plea that Duch was being made a scapegoat. She emphatically rejected the scapegoat defense. S-21 was at the apex of the security offices of Democratic Kampuchea. Duch had unique access to and relationship with the leaders of the regime. S-21 was unique as it received prisoners from across the country. It also was unique because senior officials in the CPK and the government, as well as purged chiefs of other districts, arrived there for detainment and execution. The confessions at S-21 were sent to leaders of the CPK, so they were instrumental in advising senior leaders who next to arrest. No other prison chairman had more influence over the CPK leadership than did Duch.


Leang opened this portion of her closing argument by examining the issue of Duch’s criminal intent. She said he had not agreed that he committed crimes willingly. Rather, he claims to have acted under orders and duress (with the threat of death for non-compliance). His denial of intent bears upon the facts surrounding the crimes, she said.

Leang developed a line of reasoning that rests on what existed in Cambodia during the Pol Pot era: How could the facts of that reality be interpreted in any way other than to point to Duch’s criminal intent to commit heinous crimes? The overwhelming horror of the facts must co-exist with criminal intent, she seemed to argue. She described Cambodia in stark terms:

The CPK constituted political persecution on a national scale. By 1976, there was no private property and the cities had been abandoned. The CPK began to target their own kind. The policy was to “smash” enemies inside and outside the ranks of the CPK. There were purges, including among the Central Committee. Thousands were arrested and executed.

On August 15, 1975, Son Sen convened a meeting, with Duch participating, at which the creation of S-21 was approved. In October 1975, S-21 became operational. About 1,500 prisoners were detained at any one time at S-21, which was a systematic torture and execution center. It existed to extract confessions prior to execution. Three groups of interrogators were formed to accomplish the task: the “cool” group, the “hot” group, and the “chewing” group. The co-prosecutors found that many of the surviving guards at S-21 were not keen to talk about their work there, perhaps out of fear of being arrested. But they were tools of the senior cadre and were both shaped and used by Duch and by the Central Committee. The objective of “smashing” enemies was continually enforced at S-21, with the CPK propaganda radio blaring all the time.

S-21 was a place from which no one escaped. During the trial the court heard from three prisoners whose talents as artists spared them from execution. In addition to the torments they described, there was the forcible extraction of blood and live surgeries. Blood would often be extracted until the prisoner gasped and died, completely drained of his or her own blood. Leang argued that to Duch, the practice of bloodletting meant nothing. In red ink, he would annotate next to the victim’s name, “smashed blood.”

Duch’s cruelty towards prisoners knew no limits, Leang contended. The interrogators had free rein to use their imagination and to ensure no premature death during torture sessions. High-ranking detainees were told that if they did not confess, the locations of their families were known and would be acted upon.

The arrest of an individual condemned him or her before arrival at S-21. Since no wrongful arrests could be made, elimination followed. At S-21 the cries of victims and stench of rotting corpses must have been ever present from the earliest days. Execution was a certainty for everyone. Each must have imagined death a 1,000 times over during their torture and detainment. Two witnesses before the court survived the killing fields at Choeung Ek to describe the fate of the victims. But no one can adequately explain the fear and anguish of victims other than that they knew, as they kneeled, that they would be executed. Every corpse was checked for signs of life. Throats were slit and stomachs opened with a knife before burial. Duch was the only prison official with authority to report all of this to senior leaders.


Leang proceeded to explain, as a summary of the co-prosecutors’ written submission, the crimes proven by these facts. The first category of crimes she described were crimes against humanity. The co-prosecutors argue that seven out of the nine crimes against humanity set forth in Article 5 of the ECCC Law were committed at S-21. The threshold requirement is that the commission of the crimes at S-21 had to be part of a widespread or systematic attack against a civilian population. The crimes at S-21 indeed constituted a part of the wider commission of crimes against humanity throughout the country. Even if viewed in isolation, Leang said, the crimes at S-21 were widespread. The victims arrived from all over Cambodia to face torture and execution at the prison. The victims numbering more than 12,200 met the test for “widespread.”

What occurred at S-21 also must be described as “systematic” crimes, organized and orchestrated by the Party and that instructors of the Party implemented methodically and carefully. The tens or hundreds of thousands of individual attacks at S-21 constituted an Article 5 attack. The targets of the attack were predominantly civilians detained at S-21.

The definition for crimes against humanity in Article 5 of the ECCC Law has an additional requirement: that it be done, among other categories, on political, religious, or ethnic grounds. In fact, the attacks at S-21 were driven by political ideology and political persecution resulted. The attacks included ethnic discrimination against the Vietnamese prisoners. No religion, including Islam, Christianity, or even Buddhism, was tolerated. A perpetrator of crimes against humanity must have knowledge of the attack on the civilian population. Duch knew the crimes committed at S-21 were part of a widespread attack on civilians. He was in regular contact with the hierarchy of the CPK. Those meetings informed him of conditions elsewhere in Cambodia. By reading the extensive records of interrogations at S-21, Duch became fully aware of the context of the attack on the civilian population.

Leang then examined seven separate offenses of crimes against humanity at S-21: imprisonment, other inhumane acts, enslavement, rape, torture, murder, extermination, and persecution on political, racial, and religious grounds. She said that the figure of 12,273 prisoners at S-21 was compiled from documents recording names, but many who arrived at S-21 and died thereafter were never recorded, so the figure is likely considerably larger. There was no legal codification of the basis for arrests by the regime, so there was no legal system to oversee the operation. The plethora of barbaric acts at S-21 easily triggered the category of “other inhumane acts.” Duch issued direct orders to intimidate prisoners and accomplish these acts. The conditions at S-21 constituted enslavement, with Duch intending to exercise ownership and control over the detainees. He was criminally responsible for superior responsibility over acts of rape in the camp. Torture was indisputably part of S-21’ culture and was clearly systematic. It was the principal tool for interrogations and confessions. Duch, Leang claimed, personally mistreated prisoners. The killing of prisoners on such a vast scale constituted the crime against humanity of murder. Everyone detained had to be executed. The court had heard much testimony to this effect. The death occurred on a massive scale and thus triggered the crime against humanity of extermination. Discrimination occurred on political, religious, and ethnic grounds.

Leang next turned her attention to charges of war crimes against Duch. Why is not charging Duch with crimes against humanity enough? Leang answered that question by stating that the rule of law requires that the co-prosecutors enforce the law, and that includes the Geneva Conventions of 1949 pursuant to Article 6 of the ECCC Law. It is important, she said, to see that grave breaches of the Geneva Conventions are punished, because that would have a deterrent effect on future armed conflicts. The absence of war crimes charges would not tell the whole story about Duch, particularly in connection with the innocent Vietnamese who arrived at S-21.

Leang argued that five of the eight grave breaches described in Article 6 of the ECCC Law occurred at S-21: unlawful confinement, depriving a prisoner of war or civilian the rights of fair and regular trial, wilfully causing great suffering, torture or inhumane treatment, and wilful killing. She said it was beyond doubt that an international armed conflict began in April 1975 and lasted until January 1979. Duch was fully aware of the circumstances of the international armed conflict at least as early as when the first Vietnamese soldier arrived at S-21. In fact, Duch documented the arrival of the Vietnamese soldiers, who were supposed to be protected by the Geneva Conventions, in his own handwriting. They were entitled to prisoner of war status under the Third Geneva Convention. Duch was aware of the protected status of Vietnamese soldiers captured on the battlefield and Vietnamese civilians captured on Vietnamese territory during the war.

Leang stressed that Vietnamese suffered no less than Cambodians at S-21 and that Duch’s criminal intent towards the Vietnamese was no different than towards the Vietnamese prisoners. Leang described the elements of torture as a war crime to be identical to those of torture as a crime against humanity. While she admitted the prosecution had no specific evidence of torture of Vietnamese detainees, she believed such torture could be reasonably inferred for the common use of torture at S-21.

Leang concluded by describing the applicability of Article 3new of the ECCC Law, which brings certain crimes under the 1956 Penal Code of Cambodia within the jurisdiction of the court. She said these were no less worthy of enforcement by the court. “This is a court for the Cambodian people and it is important to see national laws being enforced and used to protect them.” The Penal Code, in her view, clearly defined Duch’s actions as criminal, particularly murder and torture. Leang described the barbarity that existed in the prison as being projected by the crime of torture.

International Co-Prosecutor William Smith rose to direct his closing arguments directly at Duch’s culpability for the crimes charged. He began with a series of rhetorical questions about justice, among them: What is justice for the 12,200 people killed so cruelly at S-21? What is justice for the families and friends of the victims? The judgment of the court will not bring the victims back to life. The victims will not see their children play; perished adolescents will not fall into love; the slaughtered parents will not look proudly at what they left behind. The prosecution’s job is to achieve a sense of justice. Justice will be done by applying the ECCC Law, by conducting a fair trial, and by proving facts beyond a reasonable doubt. The sentence must be in accordance with international standards of fairness. The court’s mission is retribution and deterrence. The people of Cambodia are worth protecting and their lives are worth respecting. “S-21 should never have happened and it should never happen again,” Smith pronounced.

What, then, is justice? Smith said it can be discovered by factoring in the gravity of the crimes, the impact of the crimes on victims, and Duch’s role in the commission of the crimes. Duch claimed during the trial that the crimes at S-21 occurred against his will, under threat of death, and with no chance of escape. He paints himself as a victim of the system. Smith described Duch as neither a prisoner, nor a hostage, nor a victim. Rather, he was an idealist, a CPK revolutionary, and a crusader prepared to sacrifice everything for the cause. This, Smith claimed, is the significant difference between the prosecution and the defense in this case.

Smith claimed it was no coincidence that Duch led a comfortable family life during the Khmer Rouge years. He attained a senior position. He maneuvered to the chairmanship of S-21 with hard work and attention to detail. He wanted to eliminate enemies of the Party. He developed one-on-one relationships with senior leaders of the CPK. He continued to work with them for 15 years after Democratic Kampuchea collapsed. Duch was one of only two officials invited to meet with Son Sen on August 15, 1975, to create S-21. The number 21 was picked by Duch for personal reasons. He hand-picked his most trusted people as interrogators and torturers. He wanted to supervise at S-21 but not do the dirty work himself. He taught interrogation techniques, vigorously pursued his enemies, and ordered torture of detainees.

Duch, Smith claimed, fed the regime’s paranoia with his interrogation reports. His close relationships with senior leaders suited Duch well; he constantly needed to be mentioned by them, to please them, and be praised for his work. Duch spoke fondly of Son Sen during the trial. He described him as being his biggest influence. When Nuon Chea replaced Son Sen in 1977, Duch retained his position at S-21 and reported to Nuon Chea.

The extent of Duch’s authority at S-21 was total. He was meticulous, logical, and bordered on the obsessive. Duch has a selective and brilliant memory. In his world at S-21, rules must always be obeyed and order maintained at all times. His staff numbered 2,000 and he carefully selected and trained them. He ruthlessly enforced the rules and instilled constant fear in his staff. 155 executed detainees were former S-21 staff and Duch initiated or approved their executions. He chose not to use less extreme forms of punishment. For Duch, the principal role in life was to ensure that the political ideology of the CPK was strictly enforced. As a trained teacher, skilled interrogator, and firm believer in the cause, he was perfectly suited to the role he assumed at S-21.

Smith described Duch’s role in training sessions at S-21 and stressed Duch’s understanding that dehumanization was essential in the training. Duch was an excellent manager of the torture center at S-21. He took a hands-on role regarding every aspect of the work. Indeed, he could not have made it work any more effectively. Whenever a decision needed to be made at S-21, Duch was the one to make it.

Smith continued to explain Duch’s involvement in the core activities of S-21. He was an active investigator. He took a pro-active role in arrests of individuals who were brought to S-21. He personally initiated hundreds if not thousands of arrests. He developed the “strings of traitors” theory that compelled interrogations under torture followed by new waves of arrests. The arrests usually were made under subterfuge to lure the individuals to S-21. Duch actively participated in a massive purge of the CPK. Only he confirmed when an interrogation was complete. He particularly enjoyed interrogating high-level prisoners.

But, Smith said, Duch could not succumb to one of the most human of impulses—to alleviate the pain of others. His attitude was so hardened and absolute that there was no room for friends and close associates. Two friends of his were horribly tortured at S-21. One, a woman, was raped with a stick up her vagina. The second was forced to eat his own excrement. Duch’s denials, Smith argued, lacked any credibility given his own annotations regarding these two individuals, and there were hundreds of other annotated interrogations. He demonstrated a complete lack of mercy for the prisoners of S-21.

Smith described how Duch personally participated in torture at M-13 prior to his move to S-21. Indeed, over a period of 7.5 years, Duch beat and tortured prisoners. Why would he commit such crimes over such a long period of time if he was not ordered to do so? Because, Smith answered, Duch had an ardent belief in doing it. “The infliction of pain was not something he hated, but something he found necessary and perversely gratifying,” Smith said.

In Duch’s reports to his superiors, the attention to detail was “astonishing,” according to Smith. Ninety percent of the prisoners at S-21 presented no danger to the CPK. For the vast majority of prisoners, Smith applied his own techniques of torture. He synthesized the interrogations reports for the benefit of his superiors. He has an almost photographic memory for details.

In annotations, Duch simply wrote, “Kill them all.” “Interrogate four, kill the rest.” “Smash.” His personal participation in most interrogations and torture would not have been the best use of his time. Whether orders of senior leaders were required or not, Duch’s orders to kill went ahead. All executions required his approval at S-21. The senior leaders trust Duch to kill everyone at the right time. He was the willing participant in the plans. So did he hate doing it all and act only in fear? Smith questioned the plausibility of how Duch could take such an innovative and activist role in running Tuol Sleng and the treatment of its prisoners and simply do it all out of fear.

Duch was a strong believer in Communist ideals. That belief system gave him the resolve to develop and prove himself in the revolution. Though he claims being trapped after 1971, all of the evidence disproves his claim. While defense counsel claimed that no one dreams of becoming a mass murderer, Duch prepared to do anything to further the cause of the CPK. He was a leading crusader of the Party.

Duch expressed such admiration for Son Sen that Smith wondered what that really meant. Duch claimed that Son Sen threatened Duch with his life if he did not do his duty. But then he holds Son Sen in the highest regard. How, Smith wondered, did Duch have such faith in a man who forced him to bring such pain and agony into the lives of so many? The answer can be found, Smith said, in the fact that there actually were no threats by Son Sen; the two men were soldiers in the same crusade.

Smith remarked that the prolonged length of the trial allowed Duch to talk freely and the more he did so, the more the truth slipped out into the courtroom. “The more he speaks, the more he reveals the truth.” Duch had a “good feeling” about meeting Pol Pot in 1978, even though Pol Pot was the mastermind of the atrocities. In fact, Duch was proud to represent S-21 as the chief ideologue. How could someone be so proud of his superiors who wanted him to commit such crimes? How could someone be so proud to indoctrinate his staff to torture and kill? It was because Duch believed in the Party and he was so content in his work that the Party believed in him.

Smith then ventured into Duch’s personal life to seek out more explanations. Duch married at the end of 1975, after he already had taken part in his first torture and killing exercises at S-21’s initial location in Phnom Penh. That fact did not prevent him from starting a family. He fathered two children while he was arresting and killing children at S-21. “What a horrid disconnect to the humanity around him,” Smith lamented. “While feeding his own children, Duch was starving and killing other children.” Smith believed the explanation lies in the consequence of a need for something to believe in. Duch saw himself as protector of Party central. He could not be a revolutionary and have any feelings. Smith placed significant weight on expert David Chandler’s trial testimony. According to Chandler, Duch firmly believed in interrogations. It was part of the Party line Duch had no trouble accepting.

If Duch now admits that he implemented CPK policy and believed in doing so, rather than claiming he hated his work, lived in fear, and had no chance of escape, such an admission will come very late. The victims will have lived with his lies for years.

Smith summed up his view of Duch as a perpetrator of crimes against humanity and war crimes in Pol Pot’s Cambodia: “Duch was a willing partner, not because he was ordered to commit the crimes, but because he believed in their legitimacy. He was extremely efficient in carrying out the crimes at S-21. He was no prisoner of the regime. Duch was nothing less than a willing participant in the crimes.”

Throughout Smith’s closing argument, Duch gazed to his right, away from Smith. His eyes wandered up to the ceiling, to his defense counsel, and to his console. But he refused to make eye contact with Smith. At times Duch appeared gaunt, sad, and lonely.

Due to audio problems mid-afternoon, Smith was unable to finish his closing arguments. He will resume on Wednesday, November 25, and then be followed by the defense.

Labels: duch, Duch Closing Arguments

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

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A week of closing arguments in the trial of Kaing Guek Eav (alias Duch) commenced today with lengthy statements from the Cambodian and international lawyers representing the four groups of civil parties, who total about 90 individual victims. The public gallery in the courtroom was packed with a large audience of Cambodian citizens, including some of the civil party victims, and a small group of foreigners. Civil society representatives and the international press were present in full force. U.S. Ambassador Carol Rodley and her Deputy Chief of Mission, Ted Allegra, attended the initial hour of the arguments. The final stages of this historic trial thus began with an impressive display of domestic and global interest.

Duch arrived wearing a yellow long sleeve turtle neck shirt and white slacks. In the afternoon session he wore a white shirt. Duch was seated in the middle of the courtroom facing the judges, with his defense counsel on his right and the co-prosecutors and civil party lawyers on his left. He maintained his composure throughout the day and spent most of his time scribbling notes, watching the video screen in front of him, and occasionally turning to his left to face his accusers. But when Philippe Canonne, the French avocat representing Group 3 civil parties, and his co-counsel Martine Jacquin of France delivered perhaps the most pointed and eloquent statements of the day, Duch locked eyes with both for the duration of their arguments, leaving me to wonder whether I was witnessing remorse or defiance as each minute ticked by.

On two occasions during the recesses, Duch wandered over to the glass partition and placed a piece of paper with his writing on it against the glass. Several Cambodians whom he may have known (that was not clear) waited for him and then smiled when they read his note. He withdrew the paper from the glass, smiled, turned, and then laughed. One foreigner placed a message on the glass for him to read. They smiled at each other, Duch saluted him, and then returned to his seat. Stranger things have happened in courtrooms, but this ranked among the most disturbing, particularly given the emotional and condemnatory context of the civil party arguments today.

The civil party arguments varied significantly in their substance and delivery. Rule 23 of the Internal Rules stipulates that the civil party participates for the purpose of supporting the prosecution and to allow victims to seek collective and moral reparations. That may not have always been the case today. President Nil Nonn opened the afternoon session, which followed the Group I and Group II arguments, by reminding the civil party lawyers that they must confine their statements to the Rule 23 parameters. He claimed that the morning session had strayed far afield. Most of the afternoon arguments appeared to comply with his instructions. With the time afforded the civil party lawyers to prepare for today’s focus on their clients’ interests and needs for realistic remedies, I found it surprising that some of the lawyers had not organized and delivered their statements more effectively.


The experienced English prosecutor, Karim A.A. Khan, delivered the opening statement for the 37 Group 1 civil parties. Khan has not been present for most of the Duch trial and recognized the work of his co-counsel, including Alain Werner of Switzerland (absent today), Brianne McGonigle of the United States, and Ty Srinna, the Cambodian lawyer who followed Khan at the desk-top podium. Khan spoke very deferentially to the judges and delivered an eloquent statement. He acknowledged that there were a lot of firsts in the courtroom, including the first internationalized trial where civil parties have had an active role in the trial proceedings. He explained that whatever flaws or defects arose from civil party representation in the trial, their work had been done in good faith and with a sincere attempt to make the system work, as envisaged by the Cambodians and by the United Nations.

Khan stressed the need to distinguish between rhetoric and reality. He noted the allegation that the civil parties wanted vengeance done, or blood, during the trial. The defense had emphasized this by saying “we are in a court of law, not in a market square where we are stoning the accused.” But Khan said that all civil parties had not succumbed to the basic instincts of seeking revenge. Instead, they honored the procedures of the court so that they could achieve closure and get to the truth of what really happened at Tuol Sleng prison.

Then there was the defense counsel’s suggestion, Khan said, that “we are no more than the prosecution.” He stressed that Rule 23 limited the scope of civil party participation. “We have not aped the prosecutor uncritically,” he exclaimed. Indeed, he had made his reservations on the prosecutor’s joint criminal enterprise theory in the case well known. Group 1 had not filed any document to support that theory.

Khan claimed that the trial was not simply about the guilt or innocence of Duch. One of the advantages behind civil party participation (aside from a remedy of reparations) is that it allows victims to come before the judges to give them an insight into the impact of the crimes on their lives. That is a unique perspective that only the victims can provide.

The defense counsel’s complaint that the civil parties created an inequality of arms in the courtroom invited a strong rebuttal from Khan. He denied that Duch faced five prosecutors. The civil parties are not prosecutors, he said. They had received no financial assistance from the court. This was the case despite the basic rule in international human rights law that all rights should be rendered practical and effective and not illusory. Khan said the civil parties lacked the resources of the prosecutor and of the defense, implying that the inequality is one that short-changes the civil parties rather than creating some juggernaut aimed at the defense.

Khan concluded his initial statement by reminding the judges that Duch’s acceptance of certain allegations nonetheless requires that those allegations be proven before them. He said the judges must objectively review the evidence whether or not what has been conceded by Duch is the truth. When all the evidence is reviewed, he said, it reveals only one conclusion: in large, important particulars, Duch has sought to evade and minimize his role.

The Cambodian counsel to Group 1, Ms. Ty Srinna, then rose. Three orange-robed Buddhist monks entered the public gallery as she began, framing her remarks with appropriate solemnity. Srinna described the role of the civil parties to unearth the truth of the crimes. They would endure great mental suffering for the rest of their lives. Without their participation, she said, the trial chamber would have difficulty measuring the magnitude of the crimes and the suffering at S-21. Their object is to seek justice for themselves and for their loved ones. The court’s mandate is to help the civil parties relieve their grievances and suffering.

Since many of the original victims of S-21 were not told of their offenses when arrested, the trial represented the chance to find out the truth and ensure that justice will be done. Why were they arrested? The trial has much to do with national reconciliation also.

Srinna then proceeded to describe a number of the civil parties in Group 1 and the victims of Tuol Sleng whom they represent. Many of her accounts had been disclosed in earlier trial testimony. But Srinna plodded on so long that she consumed a large chunk of Group 1’s allotted time and was compelled to rush through the names without further descriptive accounts. Her occasional asides to Khan revealed that they had not prepared their closing arguments with attention to the time scheduled for Group 1. An air of disorganization began to take over. Srinna closed quickly with the important clarification that many documents identifying the relationships between the civil parties and the original victims were destroyed during the Khmer Rouge regime and in the intervening years. That explained, she said, some of the difficulties in responding to defense counsel’s challenges to the authenticity of the civil parties.

Khan rose again for Group 1 with a statement that consumed almost 20 minutes. It was this statement that might have been on President Nil Nonn’s mind when he later cautioned the civil parties’ counsel to remain within the parameters of Rule 23. For Khan aimed his considerable skills, as if he were the prosecutor, directly at Duch. While support for the prosecutor is part of the Rule 23 mandate, the judges appear reluctant to view the civil party lawyers as wading too deeply into the issue of the defendant’s culpability.

Khan took issue with Duch’s protestations that he had no autonomy at S-21, that he was just a tool. It was a camp dedicated to death and Duch led it. Duch did not use his autonomy to alleviate any suffering. “This is no Schindler in front of you,” Khan exclaimed. Duch was dedicated to his job. But what he accomplished was not confined to S-21, Khan said. The campaign of terror and torture that Duch ran in S-21 had the effect of increasingly the paranoia elsewhere in the party. It created a vicious cycle in which more and more arrests occurred, and more individuals were tortured into making false confessions implicating others that fed the cycle once again. Duch did all this because he was ideologically of the same mind as the leadership. It was not only because he wanted to belong to a powerful group, but also because it made life comfortable for him.

The evidence spoke for itself, Khan said. When he had the option during the chaos of the Vietnamese invasion to let people go, Duch instead smashed them. He had demonstrated his resolve at an early age in high school, and he did his job at S-21 by his own volition. He had sufficient confidence to report to his superiors, who rubber-stamped what he proposed. While the defense seeks to minimize the role of Duch, he failed repeatedly to seize options that would have minimized his role. There were no documents dictating to Duch the forms of torture but he designed a cruel and callous system at M-13 and then used it at S-21. Duch claimed he put people into pits at M-13 to protect them from U.S. air strikes when in reality such aerial bombardments had ended. The pattern emerges, Khan said, where Duch shifts and minimizes his role in the most brazen fashion. He failed to discipline guards who ordered prisoners to eat their own excrement. It was patent nonsense, Khan claimed, that Duch told interrogators to have detainees draw a picture of a dog and pay homage to it for the purpose of sparing the victim a worse fate.

Khan made the further point that although Duch showed remorse in small areas, when one compares what he had conceded in the courtroom with the truth and reconciliation model, amnesties under such mechanisms are awarded only where witnesses give the full truth and demonstrate remorse. Khan pleaded with the judges to be “alive” to the fact that Duch fell far short of that standard. Duch’s strategy, Khan said, is to bluff the court. He closed by asking the judges to consider the evidence most carefully, noting that the truth does not require a penny in reparations. But truth is of enormous value to the civil parties. He asked the judges to find Duch guilty of the charges.


Following a brief adjournment, Group 2 counsel Silke Studzinsky from Germany described herself as someone who lives with Germany’s own past. Despite Nuremberg, the atrocities had continued since World War II. She believed the Duch trial would close one of the impunity gaps in recent history, namely arising from the Pol Pot era. She and her team represent 17 civil parties in Group 2. The civil parties have to deal with the meaning of what happened every day. Why were they selected to be imprisoned and tortured when they were not guilty of anything? How were they interrogated and by whom? How and why were they killed? The trial cannot answer all of those questions, but the civil parties, who suffer permanent restlessness their entire lives, demand disclosure of the entire truth. It is the only way to re-establish their dignity, she said. Studzinsky recounted the stories of nine of the civil parties she represents that were not related in the trial.

Studzinsky then launched into scathing criticism of the judges and how they had allegedly mishandled the civil parties. She accused the judges of not being sympathetic to the suffering of the civil parties. She said that “thank you” are only two words, but they mean a lot and the judges never used them with the civil parties. There was insufficient attention to how traumatized the civil parties are, how they could not sleep the night before their testimony, they were so distraught. None of the experts would have been treated so insensitively, Studzinsky said. Civil parties were told to control their emotions, so they sought to suppress their tears and emotions. But the painful and traumatic expressions of civil parties reveal the crimes of Duch and the judges should see that. When one victim was told to show his scars publicly in the courtroom, his lawyer intervened and fortunately reversed the judge’s request. Studzinsky claimed that the civil party lawyers were often interrupted by the president of the court and thus gave the impression judges were not interested in the civil parties.

Studzinsky criticized Cambodian defense counsel Kar Savuth for his alleged insults of a sexual character to the international counsel for the civil parties. Studzinsky asked why the civil parties could not be treated with equal respect. “Is the suffering too hard to bear,” she wondered? The president of the court should have protected the interests of the civil parties, she said. Despite these shortcomings, the civil parties appreciated the opportunity to tell their stories before the court.

Following her accounts of the grievances of several civil parties, Studzinsky concluded with the story of one civil party rape victim. She had remained silent for so many years because to disclose being a victim of rape in Cambodia invites being considered “fair game” for everyone. But when she saw Duch in the courtroom, she could no longer be silent. There would be no justice for the victim of rape if her claim is denied.

Cambodian counsel Kong Pisey focused on the crime of rape and criticized Duch for hiding behind his supposed ignorance of the penal code on the crime. It was a slap in the face of the victim to do so. Duch, Pisey claimed, attempts to cleverly avoid responsibility when it suits him. Many women, he said, felt prey to sexual assaults under his command. Pisey gave some examples, stressing that male guards oversaw the women detainees. Since the women already were assigned to death, they became easy prey for sexual assaults. But Duch failed to prevent abuses or to punish the perpetrators of sexual assault. He also allowed guards to shame male detainees by taunting them when they had to completely strip during the water hose-downs. It was sexual harassment that constituted yet another inhumane act against the detainees.

Pisey stressed that Duch is not a scapegoat. He was a willing and enthusiastic participant with broad discretion regarding the prison conditions. Pisey claimed that Duch was not only proud of his job, he enjoyed the power as a power-hungry man. Duch’s aim was to keep power. He later converted to Christianity in order to be on the right side of a powerful religion rather than remain a Buddhist and be condemned to the 18th level of Hell with no prospect of return. In the courtroom, Pisey claimed that Duch was neither sincere nor truthful and his admissions were half-hearted. There were too many questions he did not respond to or circumvented. He failed, Pisey said, in his promise to the civil parties to contribute to the truth and answer all their questions. Duch’s repeated remorse and apologies are contradicted by his defense. He cries on cue crocodile tears at 4 p.m. His is an orchestrated remorse.

Pisey articulated some interesting ideas for reparations. Duch could write an autobiography and use the royalties to support the civil parties. He could work while in prison and use those earnings for such support. Pisey also proposed that Duch write two letters to the government. The first letter should be his apology to the government, while the second should request that one-third of the entrance fees at S-21 be used for reparations. Duch’s wish to return to Cambodian society should be rejected, Pisey concluded.

With the close of Group 2’s arguments, the court adjourned for lunch.


Philippe Canonne delivered the first closing argument for the 28 Group 3 civil parties. He described what confronted the civil party lawyers. They had worked tirelessly on the monumental task to bring together the victims. The civil party in an international criminal trial is a major innovation. The lawyers sought to assist the court to ensure the fairness of the trial.

The first reaction of the civil parties is often instinctive: Duch must suffer the same treatment we did. Canonne advised that the counsel give voice to the first reaction but they must transcend it. Then justice would be rendered and not savagery. Canonne quoted a string of statements by Duch during the trial, all of which directly implicated him in the commission of the crimes charged in the indictment. In light of those statements, Canonne wondered whether Duch’s contrition in the courtroom was sincere. Although weeping is the beginning of contrition, Duch sought to be released. “So look at the victims! Look at them, Duch, whom you sought to punish!” Canonne continued, “You can smash insects and animals. You cannot smash human beings, because one day they will rise again because they or their successors will demand a reckoning….Their gaze beyond death is there to judge you. Perhaps your victims will forgive you after this trial. Imagine how much these people are searching, trying to understand why a man can set up such barbarity. How can an ordinary person be so respectable and yet so terrifying?”

Canonne reminded Duch that the civil parties are simple, modest, poor, and either barely educated or high educated, and they are all fighting the same, universal fight to find in the law their continuation as human beings and not sink to the level of animals. Their intent is not to destroy fellow human beings in the name of ideology. To treat civil parties with scorn would be a new form of de-humanization.

Interestingly, Canonne admitted that the civil parties were disorganized during the trial. But they were inaugurating a new system with the Duch trial. If the court reverts to silencing the civil parties during the trial, they will become icons only—voiceless—and once again they will be buried. If they are not to be victims of their stories, then we must understand them. It is with the victims, Canonne predicted, where history will be reconstructed. The most valuable reparation, he said, is the victims’ presence in the court and the acknowledgement of their rights.

Canonne said that the Extraordinary Chambers in the Courts of Cambodia foreshadows a new blueprint for hybrid international courts with attention to the victims. He closed by criticizing Duch’s use of the French poem, “The Death of the Wolf,” because he only looks to the most morbid element in the poem. He gives no chance to humankind. Because of that he cannot fathom Duch’s contrition. Is he simply trying to put all of us to sleep, Canonne wondered? Where is there any romanticism in the deaths of 16,000 or more at Tuol Sleng? “We consider you have become a wolf for mankind,” Canonne said to Duch as he finished his statement.

Martine Jacquin followed Canonne with a second eloquent statement. She described how it took the victims decades to speak out. She said, “This court is giving voice to memory.” It enabled sons and daughters of the dead to be allowed to be heard. She then showed photographs of a number of the original victims and their civil party representatives. Then she said that the perpetrators of such crimes do not commit them out of mental illness. Rather, they take pleasure in submitting to popular madness. That is the most frightening reality. The civil parties must give testimony so that all of humanity can take up the mission of justice. In Jacquin’s view, the civil party will only forgive somebody who proves to be aware of the faults of the past and will endeavor to excise those faults from the consciousness of others. Nothing, she said, can ever justify one human being dominating another.

Cambodian counsel Moch Sovannary expressed her gratitude to the Cambodian Government and the United Nations for the creation of the court. She focused on reparations and stressed the need for effective medical care for the surviving victims. The civil parties need justice and justice has to be seen to be done—reparations would accomplish that. Sovannary proposed several ways to implement reparations: 1) create a voluntary trust fund; 2) preserve crime sites where the victims were executed and all related documents, so that younger generations can stop the “horrible historical wheel;” 3) preserve all portraits displayed at S-21; 4) erect a plaque naming all of the victims and forced labor; 5) preserve the grave and pits at Cheong Me; 5) disclose the assets of Duch; and 6) determine precisely who will implement the reparations.


Cambodian counsel Hong Kim Suon led off the fourth segment of closing arguments with his representation of civil parties in Group 4. He proceeded to deliver an exhaustive rendition of data about each of the ten civil parties in his group. One had to wonder whether he was making the best use of his valuable time for the civil parties. While some may have appreciated his recognition of their presence in the courtroom, nothing he said was of a persuasive character to influence the thinking of the judges. Duch appeared utterly disinterested. However, Hong Kim Suon’s concluding point that part of the entrance fee at S-21 should be allocated to reparations was an intriguing idea.

Pierre-Olivier Sur from France delivered the final closing argument of the day. He noted the paradox that Duch came to the courtroom without a great deal of difficulty while the victims had enormous troubles in securing recognition as civil parties. The total number of 94 civil parties reduces the situation to the level of theory, he said. Indeed, Sur argued, Duch is in complicity with the court on the rights of the victims. While the victims are steeped in Buddhism, with its Karma, reincarnation, and “letting go” concept, their country, led by a former Khmer Rouge soldier, has enough trouble looking to the future while keeping memories alive. It has only been a few months since school textbooks were circulated with information about S-21.

Sur claimed that Duch’s shedding of tears in public is at odds with Buddhist culture, which embraces the survival of the fittest. By converting to Christianity, Duch actually followed the logic of survival of the fittest. Duch has sought to demonstrate total complicity and monopolize the trial in the process. Among the victims there is a great sense of discomfort.

For the victims, Sur argued, forgiveness can only be accompanied by sincere and exhaustive confessions. Duch has not done that. Instead, he has been evasive. Duch’s further argument that he was just a follower in the Khmer Rouge machinery is not plausible. He perfected his methods at M-13, so much so that he was better than others and was promoted to chair S-21. He had the power to save people, but chose to do so only for the photographer (who took thousands of photos of Duch in his private life), dentist, and painter. If he was able to spare life, he also was able to smash it—even his school teacher. He was no pawn. He must be judged as a criminal against humanity.

Sur recounted some of the civil parties’ stories. He then proposed entrusting to international justice the “noble mission of saying and judging that there are crimes against humanity that will not remain unpunished.”

President Nil Nonn announced that Tuesday, November 25, would be devoted entirely to the closing arguments of the co-prosecutors.


Note: For a recent essay on civil party participation at the ECCC, see Civil Party Participation at ECCC: Overview, by Michael Saliba, November 6, 2009, posted on the Cambodia Tribunal Monitor.

Labels: duch, Duch Closing Arguments

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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William Smith is the Acting International Co-Prosecutor for the Extraordinary Chambers in the Courts of Cambodia (ECCC).  He has been the International Deputy Co-Prosecutor for the last three years.  Prior to joining the ECCC, he spent over ten years at the International Criminal Tribunal for the Former Yugoslavia as a trial attorney, legal officer, and analyst.  He has also practiced law in South Australia as a defense barrister and solicitor as well as a prosecutor for the South Australian Police Department.  He received a degree in law and the arts from the University of Adelaide and a Masters degree in international law from Leiden University in the Netherlands.  On October 07, 2009, William Smith spoke to the Cambodia Tribunal Monitor about developments at the ECCC.


CTM: There are reports about on-going disagreements between national and international staff at the ECCC regarding your submissions for additional investigations. How will this affect the direction of the court vis-à-vis the additional investigations? 

SMITH: As you know, the dispute over additional investigations was submitted to the Pre-Trial chamber last December.  However, the disagreement has not affected our day to day work.  To the contrary, there has been an increasing level of cooperation within the office and it is now as strong as ever.  There is a mutual respect that has developed over three years of working together.  Furthermore, the disagreement should not be characterized as one between the international staff and the Cambodian staff.  We operate as a single office and this particular disagreement is only between two people - the international co-prosecutor and the national co-prosecutor. 

The additional Introductory Submissions were filed with both the national and international co-investigating judges.  While the two judges may eventually come to different conclusions with regard to arrests and indictments, at this time they are both under an obligation to investigate the crimes alleged.  Other than several actions that require the joint signature of the co-investigating judges such as indictments, other disagreements cannot suspend or impede the investigation of the co-investigating judges.  The procedure to resolve an eventual dead-lock between the co-investigating judges with regard to indictments is similar to the procedure used to resolve the original disagreement between the co-prosecutors.

CTM: Do you have any comment on allegations that the national co-prosecutor received instructions from the government of Cambodia not to pursue additional suspects and that some international staff knew about and covered up such information? 

SMITH: The Prime Minister’s public expression of concern regarding additional prosecutions aligned with the national co-prosecutor’s decision not to support additional investigations.  People are free to draw conclusions as they see fit, but such conclusions are purely speculative.  To my knowledge, there is no evidence of direct interference with the court and there has been nothing, up to this point, that has impeded the prosecutor’s office from properly discharging its duties.

CTM: Given the poor health and old age of the charged persons in Case 002, there are concerns that some or all will die before their trials end.  Is the prosecution taking any specific actions to deal with this particular concern?

SMITH: Let me begin by saying that the charged persons are not in poor health relative to their age.  Furthermore, they receive the very good medical care while in confinement and there are indications that their health has improved rather than deteriorated.  Of course there is always a possibility at that age to contract an ailment and die suddenly.  In fact there is a high likelihood that one or more of the charged persons will be unfit to plead or will die before the conclusion of their trial.  However, if these were over-riding concerns that would impede the legitimate judicial process, then the tribunal would never have been established.  These concerns have existed ever since the establishment of the ECCC when it was evident that any potential suspects would be very old when brought to trial.

Now, just to be clear - we do not want any of the charged persons to die before their trial is concluded, but what is most important is to have a legitimate legal process that addresses the mass crimes that were committed during the period of Democratic Kampuchea.  This process must be expeditious and fair and meet international standards of due process.

CTM: If a charged person dies before Case 002 concludes, will the trial for that person end as it did with Milosevic at the ICTY?  If so, what will that mean for the Cambodian people given that one purpose of the tribunal is to establish the historical truth?

SMITH: We cannot continue a trial after an accused person dies and we cannot hold a trial if an accused person is unfit to plead.  However, in Case 002, no single case is dependent on the other, so the trials for the remaining accused persons will continue.  In such a case, the Cambodian people would certainly be disappointed.  They would be left with a feeling that justice has not been fully achieved.  However, I think the majority of the Cambodian people would say that such a result is better than if no criminal tribunal had been established in the first place.

CTM: Can you comment on the unique aspects of the Duch trial given that he has in essence pled guilty while the prosecution has, at the same time, tried to prove his guilt?

SMITH: It is true that Duch has acknowledged his guilt with respect to many aspects of the crimes of which he is charged.  For example, he has accepted roughly 85 percent of uncontested facts that we submitted to the defense.  However, the facts that he accepted all related to the mechanics of his acts during the Khmer Rouge regime and were not related to his state of mind.  This highlights a critical disagreement between the prosecution and the defense about whether Duch “willingly” committed the crimes.  The prosecution asserts that Duch was a willing participant in these crimes and firmly challenges the position of the defense that Duch acted only out of fear and pursuant to superior orders.  One must distinguish between those who were driving forces and those who acted only subject to such driving forces.  Such a distinction is extremely important in international criminal law.  If one were to accept Duch’s argument then nobody in the regime would be held responsible because everyone could claim that they were only acting out of fear and pursuant to superior orders.

CTM: Having challenged what will be one of the main mitigating factors put forth by the defense, will the prosecution seek the maximum sentence of life imprisonment?

SMITH: At the moment we are weighing all the evidence and evaluating the international case law.  This is a difficult issue because no matter the ultimate sentence, it will sit well with some people and not with others.  However, I reiterate the prosecution’s assertion that Duch acted willingly in the commission of his crimes and his state of mind during that time should be properly reflected in the ultimate determination of the sentence.

Labels: duch, William Smith

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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Chum Mey is a civil party in the trial of Kaing Guek Eav (alias Duch) and a survivor of the Tuol Sleng prison (S-21).  He was recently elected the president of the newly formed “Association of Victims of the Khmer Rouge Regime” and is one of the few civil parties who attend the Duch trial during every session.  On October 06, 2009, he met with the Cambodia Tribunal Monitor (CTM) at Tuol Sleng prison to discuss his experiences and his opinions about the Duch trial.




Civil Party and S-21 Survivor Chum Mey stands 
in front of the building where he was incarcerated


CTM: How long were you in confinement at S-21 and can you describe your life at the prison?

CHUM MEY: I was imprisoned for four months.  During that time, I was shackled to the floor and blind-folded in a two-by-one meter brick cell.  I had to sleep on my side because my back was so sore.  I had to be careful not to move because if the guards heard the chains they would administer up to two hundred lashes as punishment for unauthorized movement.  I was also tortured during my interrogation.  My toenails were ripped out with pliers.  I received several electric shocks which has caused me to permanently lose my hearing out of one ear.  I was beaten with sticks and several of my fingers were broken.  After my interrogation I was returned to my cell and could only weep quietly because we were not permitted to make any noise in our cells.

CTM: Out of a conservative estimate of 14,000 prisoners at Tuol Sleng, only twelve are known to have survived.  How did you manage to survive when all those around you perished?

CHUM MEY: When the Vietnamese troops first arrived to Phnom Penh they did not know about S-21.  The guards evacuated the prison and I was first taken to the Prey Sar reeducation camp (S-24).  There, I found my wife who had been detained at S-24 and had given birth to my baby boy.  I held him in my arms for the first time as we continued to flee the city.  The group came under fire from Vietnamese forces but eventually reached a Pagoda that was full of Khmer Rouge cadres.  Later that night a Khmer Rouge officer ordered that my family be executed.  In the ensuing gunfire, my wife and son were shot but I was able to escape.  Completely alone, I fled to the forest to hide.  I would hide during the day and venture out only at night.  I spent many days and nights alone in the forest without food or water, before eventually finding my way back to the city.

CTM: You come back to Tuol Sleng frequently.  Given your personal experiences, what compels you to come back to a place that has known so many horrors? 

CHUM MEY: I come to Tuol Sleng every day unless I am attending the Duch trial or if I am in the province.  I come everyday to tell the world the truth about the Tuol Sleng prison.  I speak to visitors of all nationalities.  I think it is important to expose the truth about the prison not only to the Cambodian people but to the entire international community so that none of these crimes are ever repeated anywhere in the world.

CTM: Recently the defense showed a video of Duch’s apology to victims at S-21 where you thanked him for admitting his guilt.  With the trial approaching its conclusion, have your views about Duch changed since the start of the trial?

CHUM MEY: At first I was ready to accept his request for forgiveness because I thought his apology was honest and unconditional.  However, during the course of the trial Duch has denied the testimonies of many civil parties.  Even though he has been honest with respect to many of the events that occurred, he has proven to be very calculating, often choosing what to say based on what he thinks is in his best interest.  For this reason, my views have changed; at first I was ready to accept his apology but I am no longer ready to accept it so long as he continues to deny many of the important testimonies of the other civil parties.

CTM: The Trial Chamber prohibited civil parties from questioning character witnesses which led to a civil party boycott.  If you could confront Duch on this issue, what would you ask him? 

CHUM MEY: First, let me say that the Court’s decision was unjust and I still do not understand its reasoning.  The Court allowed students and teachers to testify about what Duch had done both before and after he became the chairman of S-21.  Such testimony is, in my opinion, irrelevant.  When civil parties testified, they were constantly reminded that they could only speak about events occurring between 1975 and 1979.  Had I known at the beginning of the process that we would be barred from participating fully in the proceedings, I would not have filed a civil party application.

I want to know who stood behind Duch.  Did he receive direct orders to kill or was the killing his idea?  I also want to know why he only speaks about the deceased victims and never mentions the survivors of S-21 and the Khmer Rouge regime.

CTM: Similarly, the Trial Chamber also prohibited civil parties from making pleadings on sentencing.  What do you think should be Duch’s sentence?

CHUM MEY: I want the tribunal to achieve justice for all parties participating in the trial.  I don’t think that Duch should receive the maximum sentence of life imprisonment.  Duch is not an animal; he is still a human being and he has confessed his guilt and acknowledged many of his crimes.  If Duch is killed it will not bring back the 16,000 people who perished at S-21.

CTM: Has your participation in the trial eased your pain and suffering because you feel that justice is being done or increased it because it revives traumatic memories?

CHUM MEY: Of course there is pain in my heart when I attend the trial and hear testimonies recounting the tragic events that occurred during the reign of Khmer Rouge.  However, I attend the trial every day so that the judges and Duch can look directly into my eyes and see the pain and suffering that I have endured.  Furthermore, I attend the trial every day so that I can keep track of everything that happens.  It is important that this trial achieves justice not only for Cambodia but for the entire world.

Labels: Chum Mey, Civil Parties, duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law 

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François Roux is the International Defense Counsel for the Accused person Kaing Guek Eav (alias Duch).  He is a French lawyer who has been practicing criminal law for over 35 years.  He spent many years at the International Criminal Tribunal for Rwanda where he represented four accused persons and obtained one verdict of not guilty.  He was also a member of the defense team for Zacarias Moussaoui who was implicated in the September 11th attacks in New York.  On September 17, 2009, François Roux sat down with the Cambodia Tribunal Monitor (CTM) to discuss the role and significance of the Duch trial.

CTM: Duch has acknowledged his guilt at many points during this trial.  Under common law systems, accused persons that plead guilty are not subjected to a full criminal trial.  Do you think that it was important to go through this judicial process or would it have been preferable if Duch could proceed directly to sentencing?

ROUX: Given that this was the first trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC), it was important to have experts and witnesses testify to establish a historical record about what happened at Tuol Sleng prison (S-21).  If Duch were to proceed directly to sentencing it would have been very frustrating for the people of Cambodia.  Having said that, I believe that we could have accomplished this outcome in the context of a guilty plea, whereby there would be a guilty plea and the defense and prosecution would agree on having certain experts and witnesses testify in open court.  However the prosecution did not want to follow this framework.  This is a shame because it would not be incompatible to allow Duch to plead guilty and at the same time have witnesses recount their stories in open court to establish the historical record.  It would have resulted in a more seamless process but instead we were left with a strange situation where the prosecution is still trying to prove Duch’s guilt, which has already been accepted and acknowledged.

CTM: You have mentioned several times that the civil parties are confusing their roles by acting as prosecutors.  What do you think should be the proper role of civil parties in subsequent cases at the ECCC or at a permanent court such as the ICC?

ROUX: In principle, I am in favor of victim participation in international criminal tribunals, but at this point we have not developed the ideal model of such participation.  We thought that we could transpose the civil law model to trials of mass crimes but it is now clear that it is not possible to do so without some modifications.  This does not mean that we should abolish victim participation.  Instead, as jurists we need to be inventive and adapt the model to fit the unique requirements of trials of mass crimes.  The Duch trial has highlighted some of the challenges associated with the current model.  The Plenary Session of the ECCC identified some positive changes for the model in future trials, such as providing for collective representation of victims.  We must ensure that the mass presence of victims does not interfere with the rights of the accused.  Ultimately we should strive to find some common rules for victim participation in international criminal tribunals.  We should begin with the civil law system and adapt it accordingly as we confront the unique challenges of trials in international criminal tribunals.

CTM: You mentioned several times that Duch is the first and only Khmer Rouge leader to accept responsibility for his crimes.  In light of this acknowledgement of guilt and other mitigating circumstances, what is an appropriate sentence and how do you respond to those who say that no sentence length can be proportional to the acts of a man responsible for the death of thousands?

ROUX: International criminal jurisprudence clearly identifies certain mitigating factors that should be considered when rendering a sentence.  For example, while obeying orders of a superior does not absolve an accused person of international crimes, it can serve to mitigate the sentence.  In Duch’s case, not only was he obeying orders of a superior, but he was doing so in the context of a regime of absolute terror.  In such a regime, even the notion or suggestion of a difference of opinion could result in death. 

It is too early to respond with regard to the length of the sentence.  However, several decisions in other international criminal tribunals suggest that the maximum sentence of life imprisonment is not appropriate, even in cases of mass criminals, when certain mitigating circumstances exist.  Ultimately it will be left to the responsibility of the Trial Chamber to render an appropriate sentence. 

CTM: The government of Cambodia and the national staff at the ECCC are opposed to additional criminal inquiries.  In light of the fact that such a large number of people were involved with the Khmer Rouge and that many were leaders considered more senior than Duch, do you think that others be judged in the same way as Duch?

ROUX: Courts should not decide who to prosecute on the sole basis of symbolic justice.  Instead, they should prosecute people for what they did and not for what they represented.  On the one hand, I understand the Government’s position that they have made peace with their enemies and they want to protect the fragile peace.  However, it is also important to comprehensively address the issue of national reconciliation for past crimes.  The mandate of the ECCC is to prosecute senior Khmer Rouge leaders, and there were many other leaders more senior than Duch.  Ultimately, the ECCC must achieve a balance, but prosecuting only five accused persons does not strike me as a proper balance and does not seem to be sufficient in the eyes of the Cambodia public.

CTM: Many people have different opinions with regard to the role of the ECCC.  Some believe that its primary purpose is to achieve national reconciliation while others believe it is to end the culture of impunity or punish those responsible for mass crimes.  Insofar as these may conflict, what is the proper role and primary purpose of the ECCC?

ROUX: The prosecutors, judges, and the Government of Cambodia all have different roles.  While the work of the judges certainly contributes to the process of national reconciliation and ending the culture of impunity, these are not their primary objectives.  Once the judges are sworn in, they must sacrifice themselves for the sole purpose of achieving justice by rendering a judgment according to the rule of law.  In parallel, the prosecutor has an obligation to fight the culture of impunity and the Government has the responsibility to try and achieve national reconciliation.  This can be done comprehensively through, for example, a truth and reconciliation commission.

Labels: duch, Francois Rou

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law


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Alain Werner represents Civil Party Group One in the trial of Kaing Guek Eav (alias Duch).  Previously, he spent several years working directly with victims as a Prosecutor at the Special Court for Sierra Leone.  More recently, he joined a team under Human Rights Watch working to bring the former dictator of Chad, Hissene Habre, to justice in Senegal.  On September 14, 2009, Alain Werner sat down with the Cambodia Tribunal Monitor (CTM) to discuss the role of civil parties in the Duch trial specifically, and in international criminal proceedings more generally.




CTM: Late last month, the Trial Chamber rendered several decisions that led to a civil party boycott.  Specifically, the court prohibited civil parties from pleading on sentencing and from questioning certain character witnesses.  Do you plan on officially appealing these decisions as provided for in the Internal Rules?

WERNER: The Internal Rules are clear and we cannot appeal the two decisions rendered on the 27th of August. Indeed there are limited categories of decisions which can be subjected to immediate appeal under Rule 104 paragraph 4 of the Internal Rules; the two decisions you mentioned (prohibition against questioning of some experts and witnesses, and prohibition against pleading on sentencing) do not fall under any of these categories. These two decisions could therefore only be appealed at the same time as an appeal against the judgment on the merits.

Some civil parties have reacted very strongly after these two decisions, boycotting the hearings. It has been very difficult for us to explain these decisions to our clients as legally I do not understand them either. Furthermore, we are still waiting for the Court to issue the written decisions, as they only read the final part of these decisions in open Court.

CTM: The Internal Rules specify that one of the main purposes of civil party participation is to allow them to seek collective and moral reparations.  Have you determined the forms of the awards that you will seek on behalf of your clients?

WERNER: The four groups of civil party lawyers will file a joint motion on this precise subject on September 17, 2009. We are requesting that the Trial Chamber award our clients, at a minimum, the following:

•    The compilation and dissemination of apologetic statements made by Duch throughout the trial which acknowledge the pain and suffering of victims, including the comments of civil parties on these apologies;
•    Access to free medical care, including psychological and physical care and transportation to medical facilities;
•    The funding of educational programs, both in schools and museums, that inform Cambodians of the crimes that took place under the Khmer Rouge at Tuol Sleng prison (S-21) in particular;
•    The erection of memorials, pagodas and pagoda fences both at S-21 (Choeung Ek and Prey Sar) as well as in the local communities of civil parties
•    Include the names of all civil parties in this case in any final judgment, including a specification as to their connection to S-21.

If the Accused is unable to bear the costs of the above mentioned reparation awards, we are requesting that the Court ensure that either the Government of Cambodia, in accordance with its international obligations, implement the awards or the Victims Unit, through the creation of a voluntary trust fund, carry out the awards.

These awards are the minimum requested and each Civil Party Group may make further specific claims of reparations in their final briefs, as directed by the Trial Chamber.

CTM: Civil parties were often very emotional when testifying, as they recounted their experiences during the rule of the Khmer Rouge.  Has participation in this process eased their pain and suffering by increasing feelings of justice, or increased their pain and suffering by reviving many of their traumatic memories?

WERNER: About 20 Civil Parties recounted their experiences in Court, and it is difficult just after these hearings to make a global assessment of their experiences. I know that some of my own clients were very relieved immediately after their testimony and some even felt empowered. I hope that the final judgment will give to all the civil parties the sense that their involvement has been useful for this Chamber in understanding the extent of the grief still suffered by the survivors and the families of the people who died at S-21.

CTM: You have been involved in the first international criminal trial that provides for such comprehensive participation of civil parties.  How do you respond to certain criticisms that this participation has had the unintended effect of lengthening the trial or that the model of civil party participation cannot be adapted to a trial of mass crimes?

WERNER: Concerning this precise trial, I do not believe that an argument could seriously be made that our participation lengthened the trial to an unacceptable extent. The hearings will have lasted less than 6 months, for one Accused facing, amongst others, several counts of war crimes and crimes against humanity. Considering that it was the first experience of an international court applying mainly civil law with the participation for the first time of more than 90 civil parties and four groups of lawyers, I believe that this is an achievement. So, on the contrary, my view is that this trial has shown that the system can certainly work in theory, maybe with some adaptations depending on the total number of accused persons and civil parties, provided you have good lawyers on all sides.

CTM: There has been a lot of discussion about changing the model of civil party participation in Case 002.  Based on your experience, what changes do you think would be beneficial to future cases at the ECCC?

WERNER: My team, led by Karim A. A. Khan, will not be present in Case 002. We have been operating almost exclusively pro bono and committed ourselves only for this first case. I understand the need to find some adaptations for this second case, considering the fact that there will be several hundreds of civil parties and four accused persons. However, I am glad that the Plenary Session, which took place last week, took the principled position to maintain the role of civil parties. It seems that we are heading towards a system with one consolidated group of civil parties, represented by two senior lawyers paid by the Court, who will be in charge of coordinating with the civil party lawyers of different interest groups. These two senior lawyers will need to have a very solid experience in high profile trials in other international courts.

CTM: Can the experiences of victim representation before the ECCC be replicated for the ICC and what lessons can be drawn from your work with victims here for how lawyers should represent victims before the ICC?

WERNER: The extent of participation for civil parties in the ICC is not as extensive as in the ECCC. They are not equal parties to the proceedings. And of course the work with victims is always very specific depending on the context where the atrocities took place. In Cambodia the main factor was the fact that so much time passed after the commission of the crimes and that therefore our clients had waited for a very long time to see justice done. However, this experience has taught me many important things in my dealing with victims, for example how crucial it is to explain to them that the rights guaranteed to the Accused (who is well fed and treated by the Court, allowed proficient and fully funded legal representation and presumed innocent until the verdict) does not in any way constitute an offence for the victims, even where some of them have do not enough money to properly feed their families.

CTM: Do you have any impression of how the government regards an activist representation of victims before the ECCC?  Has the government ever tried to influence your work?

WERNER: We filed a motion in May 2009 asking that the Trial Chamber make a request to the United Nations Headquarters for a disclosure of a UN report on alleged corruption at the ECCC. The next day some officials in the government made comments in the press about the fact that they were keeping a record of presumed “enemies of the ECCC”. I felt at the time that some people in the government were not happy with our filing. However, there has not been any direct interference.

CTM: How significant has been the role of Cambodian lawyers in representing victims?

WERNER: The national lawyer on our team, TY Srinna, is someone of great talent. Her contribution has been fundamental in our work, inside and outside the courtroom. I do not think you can really pretend to be representing the victims without having people on your team who can understand the context and the culture of the country. However, it is challenging for any Cambodian lawyers to deal with colleagues of various nationalities and in several languages. TY Srinna has demonstrated real willingness to learn and adapt herself to the requirements of international trials and her work and contribution in court is a source of great pride for our team.

CTM: How would you describe the lawyerly skills needed to properly represent the victims?

WERNER: For the victims of international crimes of this magnitude any trial is an incredibly difficult and sometimes a painful experience. Their lawyers need to have enough empathy to really understand these factors but at the same time always maintain a distance which allows them to perform adequately as lawyers, in the defense of the interest of their clients. My view is that a lawyer of victims cannot also feel somehow victimized. This almost always leads to bad representation and much confusion.

Labels: Alan Werner, Civil Parties, duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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

Today marked the close of evidence in the trial of Kaing Guek Eav (alias Duch).  The court adjourned late in the morning after receiving requests for additional submissions of documents from the defense and the civil party groups. The court will likely adjourn until closing arguments, which are set for November 23 and estimated to last for three days.    However, the court left open the possibility of reconvening the trial chamber for additional hearings before closing arguments should it deem it necessary to discuss issues related to the requests made for submissions of additional documents.

The public affairs office of the ECCC reported that since the commencement of the substantive proceedings, the court has convened 72 different trial sessions.  During the proceedings, the trial chamber received the testimony of nine expert witnesses, seventeen fact witnesses, seven character witnesses, and twenty two civil parties.  An average of 330 people observed the Duch trial every day for a total of 23,742 visitors. 


Labels: duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law
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Trial Footage - Transcript


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Part 1 | Part 2 | Part 3 | Part 4
Part 5 | Part 6 | Part 7 | Part 8

The court in the trial of Kaing Guek Eav (alias Duch) recalled Duch to the stand one final time to face questioning from the prosecution and the defense on the issue of his character.  The prosecution attempted to portray Duch as a man who remained loyal to the Khmer Rouge until the bitter end while the defense focused on Duch’s apology to victims and his acknowledgement of guilt.  

The prosecution characterized Duch as a man who was proud of his role at Tuol Sleng prison (S-21) because he had the opportunity to work with the highest echelon of the Khmer Rouge leadership.  They argued that Duch executed his duties with great care and enthusiasm.  They suggested that his work was primarily motivated by an underlying and genuine sense of loyalty to the Khmer Rouge regime.  Duch responded that his work was motivated not by a sense of loyalty to the regime, but rather by a fear for his own safety.  After seeing many people close to him implicated as enemies, he felt that his arrest was inevitable, and the only way to stay alive was to continue pleasing his superiors.   

The prosecution also argued that Duch remained loyal to the Khmer Rouge up until his arrest in 1999 and did not accept his individual criminal responsibility until he first met his lawyers in 2007.  They stressed the fact that he did not abandon the party after it was defeated on January 6, 1979.  Duch admitted that he was a dedicated revolutionary at the start of the Khmer Rouge regime, but he argued that he began to lose faith in the party once he learned of its criminal nature.  He was not able to leave the movement, he explained, because he continued to fear for his safety.

Later, the defense attempted to demonstrate that Duch’s remorse was sincere and his acknowledgement of guilt was unconditional.  Duch accepted the assertion that as chairman of S-21 he implemented the persecution of the Cambodian people in a devoted and merciless fashion.  Duch stated that he was both legally and emotionally responsible for the crimes committed at S-21 and would not contest the judgment of the tribunal.  He repeated his apology to victims and asked again for their forgiveness.

In the afternoon session the trial chamber began the laborious task of accepting requests for submissions of additional documentary material that was not yet before the trial chamber.  Under the Internal Rules the trial chamber may only base its decision on evidence that has been put before it and subjected to examination.  Evidence that is part of the case file, but that has not been referred to during the trial, must be expressly put before the parties.

The main issue of contention between the prosecution and the defense arose from the prosecution’s request to submit many annotated confessions from S-21 that were not referred to during the trial.  The defense objected on the basis that it did not have the chance to examine these confessions.  The defense noted that it identified many inaccuracies in the translation of several confessions and annotations that were referred to during the trial.  Furthermore, according to the defense, Duch was able to provide the trial chamber with important contextual background regarding the confessions because he personally annotated many of them.  Therefore, the defense argued that allowing the trial chamber to rely on annotated confessions that were not examined by the defense would be prejudicial to the accused. 

The trial chamber will briefly reconvene tomorrow morning to accept the final requests for submissions of additional documents at which point it is expected to adjourn until November 23 for closing arguments.

Labels: duch

September 2, 200

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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2 September 2009: Trial of Kaing Guek Eav (alias "Duch") - Transcript
Part 1 Part 2 Part 3 Part 4
Part 5 Part 6 Part 7 Part 8

Today’s proceedings in the trial of Kaing Guek Eav (alias Duch) were overshadowed by a very important decision from the pre-trial chamber regarding the disagreement between the national and international co-prosecutors about whether to prosecute additional Khmer Rouge leaders. Pursuant to the ECCC’s constitutional documents and the Internal Rules, the dispute was submitted to the pre-trial chamber where a super-majority of four out of five judges is required to reach a binding decision. The pre-trial chamber was unable to resolve the disagreement between the co-prosecutors with a super-majority decision. In cases where the pre-trial chamber cannot resolve such a disagreement with a super-majority, the Agreement between the United Nations and the Royal Government of Cambodia, the ECCC Law, and the Internal Rules specify that the investigation of additional suspects for prosecutions shall proceed.

The Office of the Co-Prosecutors first informed the public about this disagreement in December 2008. The international co-prosecutor, Robert Petit, asserted that additional prosecutions are necessary to fulfill the mandate of the ECCC, which is to bring to justice senior leaders and those most responsible for the crimes that were committed in Democratic Kampuchea between 1975 and 1979. The national co-prosecutor, Chea Leang, disputed the fact that the suspects identified in the new Introductory Submissions were senior leaders of the Khmer Rouge. Furthermore, she asserted that additional prosecutions would have a detrimental impact on the peace, stability, and national reconciliation in Cambodia. Finally, she argued that existing trials would be put in jeopardy because additional prosecutions would strain the budget and resources of the court.

The disagreement between the co-prosecutors received media attention due to allegations of inappropriate political tampering by the government of Cambodia. These allegations suggested that the national co-prosecutor’s position was based on political considerations rather than independent judicial concerns. The pre-trial decision further exacerbates the divide between the international parties and the national parties, as the three Cambodian judges sided with the national co-prosecutor and the two international judges sided with the international co-prosecutor.

The pre-trial chamber’s decision lays the groundwork for additional judicial investigations, but it is still too early to speculate on whether such investigations will materialize into additional prosecutions. Before commencement of additional investigations, the new international prosecutor will have to decide to move forward with the Introductory Submissions. (The former international co-prosecutor Robert Petit resigned this week, explaining that his departure was due to family reasons and in no way related to his disagreement with his national counter-part on this matter. William Smith is acting as the international co-prosecutor until a permanent replacement to Robert Petit is appointed.) Thereafter, the co-investigating judges must determine that their investigation of the facts warrants charges against suspects named in the Introductory Submissions. Further developments relating to the potential prosecution of additional leaders of the Khmer Rouge will be closely monitored as they will have wide-ranging implications for the ECCC and the Government of Cambodia.

Duch resumes testimony

During the substantive portion of the proceedings, two of Duch’s former colleagues, Hun Smien and Peng Poan, echoed many of the same sentiments as Duch’s former students and classmates. Specifically, they described Duch as a gentle and quiet teacher who was well-liked by students and staff. Based on their interactions with Duch, they never suspected him of having been a senior leader of the Khmer Rouge. They learned about Duch’s background only after his arrest in 1999. Even today, Smien explained, he finds it extremely hard to comprehend how Duch was involved in such serious crimes.

The trial chamber then recalled Duch to the stand to question him on issues of his character. He was asked to give his opinion on policies of the Khmer Rouge generally, and of Toul Sleng prison (S-21) specifically. For example, he was asked how he felt about the use of children guards at S-21 and the Khmer Rouge policy that eliminated educational institutions in Cambodia. He rarely answered these questions directly. Instead, he responded that his personal opinions were irrelevant because he had to be loyal to the Khmer Rouge whose policies had to be followed unconditionally.

In response to a lengthy line of questioning, Duch told the chamber that he became aware of the criminal nature of the Khmer Rouge regime only after he joined the revolution. At that point, he explained, it was too late to leave. He described several attempts to be re-assigned to different positions within the party. He asked to be re-assigned to the ministry of culture and the ministry of energy but his superiors denied his requests. He also told the chamber that he asked to be demoted from his position at the M-13 prison after a prisoner escape occurred under his watch. He described a feeling of apprehension when he was appointed as chairman of S-21 but explained that he was not permitted to refuse the post.

Duch explained that he remained under constant surveillance even after the fall of the Khmer Rouge. He considered himself a prisoner of the regime and told the court that he feared for his life. He asserted that Khmer Rouge cadres were responsible for an apparent robbery in November 1995 in which he was injured and his wife was killed. He learned of the re-integration of Ieng Sary and many other former Khmer Rouge leaders in 1996. Duch explained that he wanted to contact Ieng Sary in an attempt to be reintegrated into the government but he was not able to do so before his eventual arrest. (Ieng Sary was convicted in absentia of the crime of genocide by an ad-hoc Cambodian tribunal in 1979. In 1996 he was granted a pardon by King Sihanouk and was reintegrated in the government. However, he has recently been arrested and charged with crimes within the jurisdiction of the ECCC.)

Labels: duch

September 1, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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1 September 2009: Trial of Kaing Guek Eav (alias "Duch") - Transcript
Part 1 Part 2 Part 3
Part 4 Part 5 Part 6

The tribunal heard the testimony of four witnesses who knew the Accused Person, Kaing Guek Eav (alias Duch) when he was a student and a teacher. However, before these character witnesses testified, the defense finished its questioning of the expert witnesses Francoise Sironi-Guildbaud and Ka Sunbaunat. Through his questioning, international defense counsel Francois Roux attempted to demonstrate the sincerity of Duch’s remorse which has been a hotly contested issue throughout the proceedings. He recounted to the experts Duch’s acts and statements, such as Duch’s emotional apology and voluntary participation in the re-enactment at Tuol Sleng prison (S-21) and Choeung Ek.

Roux also revisited the issue of Duch’s ability to be rehabilitated which was contested by the prosecution yesterday. He recalled the experts’ statements that a person is not born an executioner, but that one becomes an executioner. Using this same logic, the experts agreed that a person such as Duch could be made “human” again. In other words, he could be rehabilitated and reintegrated into society.

Witnesses describe Duch’s personality as a student and a teacher

Duch’s former high school classmate, Sou Sat, described him as a kind and generous student. While many students were reluctant to help others, Duch was always willing to help his classmates and share his knowledge. Furthermore, she never witnessed any verbal, physical, or intellectual conflicts between Duch and any other student or teacher. (The trial chamber permitted Sou Sat to visit Duch after her testimony, as is common practice in international criminal proceedings.)

Regarding his more recent years as a teacher, Duch’s former high school students, Tep Sem and Tep Sok, described him as a dedicated teacher. Tep Sem described Duch as a humble and attentive teacher who did not care about the social class of his students. Duch, he explained, offered free private tutoring to students who needed additional help. Tep Sok described Duch as a kind and gentle teacher. He explained that Duch would donate books to his students and was always available to students who needed extra help. Chou Vin, who taught alongside Duch at a school in the Phkoam village from 1995 until 1997, also explained that Duch was well-liked and well-respected by his students, who would sometimes refer to him as “grandpa teacher.”

These witnesses all expressed shock upon learning of Duch’s role as chairman of S-21. Tep Sok described a feeling of regret when he heard the news because he viewed Duch as a virtuous man who turned into a criminal. Sou Sat was “stunned and terrorized” when she found out that one of Duch’s former professors was detained and executed at S-21.

Civil Party lawyers attempt to express clients’ discontent with trial chamber

Today, the civil party lawyers continued to voice their clients’ discontent with the court’s decision that barred civil party questioning of character witnesses. At the start of the session, civil party lawyer Alain Werner asked the trial chamber for permission to read into the record the open letter from the civil parties. The trial chamber denied Werner’s request and suggested that he resubmit the letter to the court.

Later in the day, and on several different occasions, lawyers for the civil parties asked the chamber to explain to the witnesses why the civil parties were not present in the courtroom. The civil party lawyers argued that it was important for the witnesses to know the reason for which they would not be asked questions from civil party lawyers. However, the requests seemed to be motivated primarily by a desire to force the court to acknowledge the discontent of the civil parties. The tribunal therefore predictably denied their first request. After the second, the tribunal expressed its frustration by the repetitiveness of these requests. Finally, after the third request, the tribunal disconnected the civil party microphones and informed them that they would be prohibited for intervening during the remainder of character witness testimonies. Today’s events further strained the relationship between the court and the civil parties. The civil parties felt that their rights had been unduly restricted, and now feel that the court is unwilling to hear what they perceive to be their legitimate complaints.

The lawyers for civil party groups two and four were absent for the second consecutive day. No indication has been given to explain their absence and it is unclear if it is related to the boycott. Given today’s developments, the remaining civil party lawyers may elect not to attend the proceedings until the conclusion of character witness testimony.

Labels: duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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Trial Footage - Transcript

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Part 1 | Part 2 | Part 3 | Part 4
Part 5 | Part 6 | Part 7 | Part 8

Khmer
Part 1 | Part 2 | Part 3 | Part 4
Part 5 | Part 6 | Part 7 | Part 8

The civil parties that have consistently attended the trial of Kaing Guek Eav (alias Duch) were conspicuously absent from the courtroom this morning. In an impromptu press conference held at the entrance of the court just minutes earlier, Chum Mey, a civil party and survivor of Tuol Sleng prison (S-21), explained that 28 civil parties were boycotting the proceedings this week to contest the trial chamber’s ruling that barred their lawyers from questioning character witnesses. The civil parties expressed their dismay at what they perceived as a restriction of their legal rights and a silencing of their lawyers. They argued that truth and justice could not be achieved if they were not given the opportunity to question character witnesses to help them understand the motivations and intentions of the accused.

The civil parties planned to release an open letter to the trial chamber to request a reversal of its decision. It is unclear whether the civil party attorneys will formally appeal the trial chamber’s decision. (While certain types of decisions considered to be particularly prejudicial to one of the parties are subject to an immediate interlocutory appeal, an appeal against this particular decision would have to be made at the same time as an appeal against the judgment on the merits.)

The civil parties also expressed several complaints of unequal treatment between the civil parties and the defense. They noted that while Duch is well-fed and is provided adequate accommodations by the tribunal, civil parties are given no assistance and many struggle with their daily living conditions. Similarly, they explained that while the defense counsels are paid a generous salary by the tribunal, the civil party lawyers receive no compensation and are often required to work on a pro-bono basis. They also complained that Duch has insulted the victims of S-21 with certain comments made to the tribunal. Finally, they asserted that the delay in naming a replacement for the outgoing international co-prosecutor Robert Petit is further exacerbating the imbalance between the defense and prosecution. (On August 29, the Supreme Council of Magistracy of Cambodia chose the current deputy international co-prosecutor, William Smith, to serve as the acting international co-prosecutor until a permanent replacement is appointed.)


Experts present findings of psychological assessment of Duch

After a brief explanation from Alain Werner regarding the absence of the civil parties, the trial chamber swore in Francoise Sironi-Guildbaud, a French psychologist, and Ka Sunbaunat, a Cambodian psychiatrist, to jointly present a summary of their psychological assessment of Duch, which they performed at the request of the Office of Co-Investigating Judges. Their findings were based on thirteen interviews with Duch as well as an assessment of his actions such as his emotional apology to victims at S-21 and Choeung Ek.

They testified that Duch never suffered from a mental disorder but that he resorted to many psychological defense mechanisms which enabled him to act in the way he did. He often took actions under the rationalization that he had no other choice. He isolated himself and avoided many situations so that he would not see and hear what was happening within the prison walls. Most notably he resorted to psychological “splitting” in which he was able to separate different and contradictory activities in his life. This allowed him to accept two contradictory versions of reality and explains how he was able to engage in certain conduct such as having children and being a good father while concurrently presiding over a prison where children were being systematically executed.

One of the hotly contested issues during the trial has been the genuineness of Duch’s apology and stated remorse. Many civil parties have rejected Duch’s apologies, accusing him of insincerity. Despite questioning from the prosecution and the defense, the experts refrained from opining directly on this issue. However they did reiterate their observation that Duch’s demeanor shifted throughout the period of their evaluation. They explained that in the later series of interviews he displayed a much greater capacity for sympathy and a desire to help provide reparations. They also noted that unprompted by questioning, Duch expressed his remorse and informed them that he would seek forgiveness.

Guildbaud and Sunbaunat also addressed Duch’s conversion to Christianity which has been criticized by many as nothing more than an attempt to have his sins absolved. They explained that this concept of baptismal rebirth offered him the possibility of achieving a new identity and personality, despite the sins of his past.

Finally, Guildbaud and Sunbaunat suggested that Duch could be rehabilitated. In an attempt to challenge this determination, the prosecution argued that a full rehabilitation would not be possible because even if Duch was personally ready and willing, the society in which he would need to be rehabilitated would not accept him. Sunbaunat responded by suggesting that even though members of the society were not ready to forgive Duch, he could nonetheless live within that society, just as many other Khmer Rouge leaders have done since the government’s policy of reconciliation.

Labels: Chum Mey, Civil Parties, duch, Francoise Sironi-Guildbaud, Ka Sunbaunat

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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Part 1 Part 2 Part 3 Part 4
Part 5 Part 6 Part 7 Part 8


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Part 1 Part 2 Part 3 Part 4
Part 5 Part 6 Part 7 Part 8

The court in the trial of Kaing Guek Eav (alias Duch) issued two procedural rulings that severely restricted the substantive roles of the civil parties. First, it pronounced that civil parties would not be permitted to make submissions to the court on the issue of sentencing. Only submissions relating to guilt or civil party reparations would be accepted. Second, it ruled that civil parties would not be permitted to question many of the remaining witnesses because those testimonies will address exclusively the character of the accused. However, before delving into these important procedural issues, the court concluded yesterday’s process of hearing challenges to civil party applications.

Conclusion of challenges to civil party applications

The five remaining challenges were all related to group three civil parties. The two sides agreed to present their arguments at once rather than on a case-by-case basis as was done yesterday. The defense argued that the civil party applications were not admissible because no documents were provided in the case files of any of these witnesses. Specifically, there were no photographs, biographies, confessions or names on the prisoner’s list.

Civil party lawyer Alain Werner responded with several general observations that were not raised yesterday. First, he argued that the jurisprudence of international criminal law tended to favor accepting indirect evidence to support civil party applications. He stressed that accepting these civil party applications would not prejudice the accused because the civil parties were not providing any incriminating evidence and Duch would not be required to pay individual monetary reparations. Werner also argued that just as Duch benefits from the presumption of innocence so too should civil parties benefit from a presumption of good faith. Finally, Werner stressed the importance of the trial chamber’s decision on this matter by noting that it will have a big impact on the civil parties in the subsequent case at the ECCC (case 002). In that case, many civil parties will be claiming a kinship link to family members detained in Khmer Rouge facilities other than S-21. It will be even more difficult to obtain relevant documents from those detention centers because they maintained even fewer records of victims than did Tuol Sleng prison. (However, proof of an injury should be easier to demonstrate in case 002 because the scope of the crimes of the accused persons is much broader than in the Duch case.)

The trial chamber informed the parties that all additional evidence relating to civil party applications must be submitted to the court by Thursday, September 03.

Trial chamber rules that civil parties may not question character witnesses

The trial chamber then asked the parties for submissions with regard to whether civil parties were permitted to question character witnesses. However, before opening the floor for the debate, the trial chamber read aloud its decision on a related procedural matter. Responding to a request from two civil party groups, the trial chamber ruled that civil parties were not permitted to make submissions relating to sentencing. The timing of this oral decision was a very ominous sign for the prosecution and civil parties and proved to be highly suggestive of the court’s eventual ruling on the issue of civil party questioning of character witnesses.

The prosecution argued that the civil parties should be permitted to participate in the questioning of character witnesses. It cited numerous articles of the Internal Rules which made reference to civil parties as “parties to the criminal proceedings” whose purpose was, in part, to “support the prosecution.” The prosecution emphasized that the civil parties had been participating in all stages of the proceedings and no rule prohibited them from questioning character witnesses. Indeed no distinction is made in the Internal Rules between normal witnesses and character witnesses. The prosecution argued that the voice of the civil parties is essential and distinct from the prosecution, and would aid the chamber in rendering an informed and just verdict.

The civil parties supported the submissions of the prosecution and added several unique observations. First, they invoked article 90 which states that “all parties and their lawyers shall have the right to question the Accused.” They noted that throughout the entire proceedings witnesses had been questioned about the character of the accused and it would untenable were the trial chamber to restrict this practice at such a late stage. They also stressed that Cambodian criminal procedure, much like its counter-part in all other national civil law jurisdictions, permitted civil parties to question all witnesses, including those who testify to the character of the accused.

The defense countered that given the court’s ruling that civil parties were not permitted to make submissions relating to sentencing, it followed logically that they should not be permitted to question character witnesses. Character evidence, the defense argued, goes directly to sentencing and has no relevance with the issue of guilt, pain and suffering of the civil parties, or the reparations they seek. The defense conceded the fact that under pure national civil law systems, civil parties could question character witnesses, but, they argued, national rules could not be transposed to international proceedings such as these that deal with trials of mass crimes. The defense also explained that when a defendant pleads guilty in other international tribunals, the prosecutor agrees not to challenge any defense character witnesses.

After an extended adjournment, the trial chamber reconvened and pronounced its decision. By majority vote, with Judge Lavergne dissenting (as he did with the earlier procedural ruling), the trial chamber ruled that it would not allow civil parties to question character witnesses.

Trial chamber calls Duch to the stand

The trial chamber, displaying a renewed sense of urgency, decided to call Duch to the stand, late in the afternoon, to begin questioning him on his character. He only had time to answer several questions from the judges before the court was adjourned. He provided a brief preliminary background of his life, explaining that he was born to a relatively poor family and became interested in political activism at a very early age. He joined the revolution because he believed that it was a just cause that would help liberate the Cambodian people. It was only later, and little by little, that he discovered the criminal nature of the regime. By that point it was too late. To leave the movement, he explained, was to lose his life.

Labels: Civil Parties, duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law
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Webcast of trial proceedings - Transcript

English
Part 1 | Part 2 | Part 3
Part 4 | Part 5

Khmer
Part 1 | Part 2 | Part 3
Part 4 | Part 5

The court in the trial of Kaing Guek Eav (alias Duch) decided to hear defense challenges to civil party applications. Pursuant to the Internal Rules, a civil party must demonstrate a personal physical, material, or psychological injury sustained as a direct consequence of the crimes of the accused. This typically involves establishing a family link between the civil party and a victim of Tuol Sleng prison (S-21). Accordingly, the majority of defense challenges were based on a lack of documentary evidence to prove that the victim was detained and executed at S-21 and a lack of documentary evidence to prove that the civil party was related to the victim in the manner alleged. The defense also argued that a civil party application cannot be based on friendship to a victim of S-21. Before reaching the substance of these challenges, all the parties made preliminary remarks.

Importance of liberal evidentiary standard

The prosecutor and civil party lawyers argued that the trial chamber should not view documentary evidence, or the lack thereof, as conclusive with regard to proving kinship between a civil party and a victim, or that the victim was detained at S-21. Instead they reminded the chamber of the liberal evidentiary standards under the Internal Rules and argued that the chamber should consider all evidence which may be probative on these issues. They noted that relevant facts often go back 30 years and it was impossible to preserve some documents that would have been useful today. For example, people were forced to destroy almost all photographs of family members during the Khmer Rouge regime. Others destroyed evidence of family links to protect themselves from being arrested and executed like their family members.

More specifically, the prosecutor and civil party lawyers explained that the archives at S-21 were incomplete and underrepresented the true number of victims who perished at Tuol Sleng. Numerous documents were destroyed or deteriorated over time because they were not properly archived. (The accused himself also has admitted that the archives of S-21 were incomplete.) Therefore, according to the prosecution and civil parties, the absence of a victim from the archives of S-21 is not conclusive on the issue of whether the victim was detained at the prison. Rather, the trial chamber should consider the coherence and logic of civil party statements and assess them within their specific historical context.

The prosecutor and civil party lawyers made similar remarks regarding civil registry documents to prove kinship between civil parties and victims. The civil registries in many provinces, communes, and districts cannot always provide proper registration documents because some of these documents do not exist or have disappeared. Therefore, the prosecution and civil parties urged the chamber to consider other evidence to establish kinship. Specifically, it should consider documents from the mayor of the civil party’s commune or affidavits from persons who are familiar with the identities of the civil parties and the victims.

Finally, the prosecutor and civil parties objected to the defense argument that a civil party application cannot be based on friendship to a victim of S-21. They argued that civil parties can suffer from psychological harm following the death of their friends at S-21. All that is required, they argued, is a close relationship which can include a direct family member or a third party such as a close friend.

The defense counsels stressed that the burden of proof rested with the civil parties to demonstrate a family link with a victim of S-21. They explained that proof that a victim was detained at S-21 could be demonstrated by a photograph from the prison, a confession, or the victim name on the prisoner’s list. The defense explained that while they were not seeking all three of these documents, they could not accept a civil party application that did not contain at least one of these documents.

Trial chamber proceeds methodically through civil party application challenges

As stated, the defense challenges were based almost exclusively on a lack of documentary evidence to prove that the victim was detained and executed at S-21 and a lack of documentary evidence to prove that the civil party was related to the victim in the manner alleged. Most civil party applications that the defense challenged were, in their opinion, deficient in both respects. For each contested civil party application, the defense stated its grounds of objection and provided a very brief description of the alleged relationship between the civil party and the victim.

The civil party lawyers provided several general responses to the defense objections. On the issue of proof that the victim was detained at Tuol Sleng, many civil parties provided the chamber with either a photograph or biography that was recently obtained from S-21. Many other civil parties asked the court to consider the coherence and logic of their statements as evidence that their family members were sent to S-21. For example, the family member of one of the civil parties was suspected of involvement with the Lon Nol regime and was arrested on April 17, 1975. According to prior testimony before the tribunal, during that time period, those suspected of having participated in the Lon Nol government were detained and sent to S-21. Finally, some civil parties informed the court that they would submit additional documentation in the coming days to prove that the victim was detained at S-21.

On the issue of proof of kinship between the civil party and the victim, some civil parties provided the chamber with documents from the mayors of their communes. Others provided affidavits from persons close to the civil party and the victim to prove that they were related in the manner alleged. Finally some civil parties informed the court that they were in the process of obtaining proper documentation and hoped to be able to deliver this documentation to the court next week.

Two challenges to civil party applications were based on the defense argument that a civil party application cannot be based on friendship to a victim of S-21. On this issue the civil party lawyers reiterated their preliminary argument that a civil party application is appropriate and admissible when the civil party suffered from a personal physical, material, or psychological injury sustained as a direct consequence of their friends’ detention and execution at S-21.

The court heard challenges to all but five of the contested civil party applications. It will conclude this process during tomorrow’s session which will be the last time that the chamber will address this issue.

Labels: duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law
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Trial Footage - Transcript

English
Part 1 | Part 2 | Part 3 | Part 4
Part 5 | Part 6 | Part 7

Khmer
Part 1 | Part 2 | Part 3 | Part 4
Part 5 | Part 6 | Part 7

Over the past week, the court in the trial of Kaing Guek Eav (alias Duch) received testimony from 16 civil parties. These civil parties represented both foreign and Cambodian nationals. They all lost family members at Tuol Sleng prison (S-21) during the period of Democratic Kampuchea. They represented parents, siblings, cousins, in-laws, and children of the victims. Some of the children never had a chance to know their parents. Several civil parties had themselves been detained and sent to re-education camps during this period. Within that group, some had even joined the revolution and worked for the regime before their arrest and detention.

Despite these many differences, several common sentiments were expressed by the civil parties. They appeared before the tribunal in search of truth and justice rather than vengeance and revenge. They inquired about the circumstances surrounding the deaths of their loved ones. They searched for a rationale to explain these deaths when no justifiable cause existed. Contrary to the old adage that time heals all wounds, the civil parties explained that their pain and suffering only increases with time. As expert witness Chhim Sotheara testified in the morning session, the pain and suffering of the civil parties is a microcosm of the whole of Cambodian society.

Cambodians still suffering from psychological trauma

Chhim Sotheara testified about the psychological trauma that victims of the Khmer Rouge regime have endured. As an expert witness, unrelated with any of the parties, he took an oath before testifying. (Unlike civil parties, lay and expert witnesses are required to take an oath before testifying.)

First, he explained that a majority of Cambodians suffered from psychological trauma during and after the reign of the Khmer Rouge. All of this suffering was directly caused by the destruction of the social fabric of Cambodia. He explained how schools, hospitals, and other institutions were destroyed. Children were separated from their parents. Cambodians across the country were forced to labor in the fields for very long hours, under extremely difficult circumstances. Every person lived in constant fear during the entire four-year rule of the Khmer Rouge. All of this contributed to the short-term and long-term psychological suffering of Cambodian society.

More specifically, research in this area suggests that 40 percent of Cambodians have experienced psychosocial and mental health problems from mild to severe. Many victims today cannot focus on their day-to-day work. Others experience recurring nightmares where they are chased by the Khmer Rouge or dead relatives cry to them for help. Many victims have lost their will to live and have contemplated suicide as a way to escape their pain. The psychological trauma is not limited to the generation that survived the Khmer Rouge regime, but is often times transferred down to the younger generations.

Chhim Sotheara identified several factors that could help alleviate the psychological trauma of victims and their families. One of the biggest problems over the last thirty years has been the lack of sufficient medical and psychiatric services. These services are critically important to the successful psychological recovery of victims. Another beneficial factor in the healing process is a genuine and sincere apology from the accused, demonstrating a sense of remorse. While Duch has accepted responsibility for his crimes, all indications are that the subsequent accused persons to appear before the tribunal will not demonstrate the same level of remorse. To help alleviate the psychological trauma of victims when those responsible deny their crimes, it will be important that the tribunal establishes the historical truth and holds the accused persons accountable.

Chhim Sotheara also delved into the broader concepts of justice, forgiveness, and reconciliation. He explained that these are interrelated. Truth and justice are important foundational elements that must be established before some victims are prepared to forgive. While the ECCC represents a sort of symbolic justice, a comprehensive mechanism for national reconciliation must be established to properly address the psychological suffering of the Cambodian people.

Civil party lawyers object to defense challenges of civil party applications

In the afternoon session, the trial chamber began to hear defense challenges to the admissibility of civil party applications. The defense presented several grounds for their challenge. First, they argued that friendship to a victim of S-21 did not satisfy the requisite kinship link. Second, they argued that many applications lacked sufficient documentary evidence to prove that the victims were detained and executed at S-21. Finally, they argued that many of those same applications lacked sufficient documentary evidence to prove that the civil party was related to the victim in the manner alleged.

Before the court began to hear substantive testimony, civil party lawyer Alain Werner objected and argued that the defense could no longer challenge these applications. This sparked a lengthy and heated procedural debate between Werner and the international defense counsel François Roux. Werner argued that the admissibility of civil party applications is governed by Articles 23 and 83 of the Internal Rules which state that any challenges thereof must occur during the initial hearing. He reminded the chamber that during the initial hearing three civil party applications were indeed challenged, and one of those challenges was sustained. He also recognized the chamber’s discretionary power, under Article 100, to hear arguments on admissibility at any point until a judgment is rendered. However, he argued that this discretion in no way permitted the defense to raise challenges to civil party applications on its own.

Francois Roux responded that Werner’s objection was tardy and it should have been made early last week when the court asked the defense to prepare its observations regarding civil party applications. Furthermore, during the initial hearing, some applications had been provisionally admitted and the defense had reserved the right to challenge these applications. Finally, the defense argued that it was simply responding to a direct request from the trial chamber, made pursuant to its discretionary power under Article 100.

The judges failed to provide a clear indication about their ruling on this procedural matter, which will have several important consequences. First, if the court proceeds with the defense challenges and determines that certain civil party applications are inadmissible, then those civil parties will have the right under the Internal Rules to appeal the decision to the Supreme Court Chamber. Even with the opportunity to appeal, such a decision this late in the trial would be devastating to the civil parties affected. For six months they have enjoyed the rights attendant to being a civil party and they have become personally invested in the outcome of the trial.

The objection and protracted debate may prove to be a good litigation strategy even if the court decides to hear the defense challenges, as the judges may relax the evidentiary thresholds when assessing each individual civil party application. The civil party lawyers are likely concerned that they were not able to obtain several relevant documents from S-21 because perfect records were never kept at the prison and some documents from S-21 were destroyed. In fact, these types of evidentiary concerns are some of the reasons that this court, along with other international tribunals, has relaxed its own rules of evidence. (For example, this tribunal does not bar the admissibility of hearsay evidence.)

Labels: Chhim Sotheara, Civil Parties, duch

August 24, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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Webcast of trial proceedings - Transcript
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The court began by acknowledging the progress it has made in the past week in the trial of Kaing Guek Eav (alias Duch). Accordingly, the chamber announced that it planned to hear the final civil party testimonies today, followed by expert witness testimony tomorrow on the issue of civil party claims for reparation. The chamber will then spend approximately two days to hear the defense challenges of civil party applications. Finally, it will receive testimony relating to the character of the accused before scheduling closing statements.

Today’s proceedings did not progress as quickly as anticipated due in large part to civil parties straying from relevant facts during their testimonies. Pursuant to the Internal Rules, they were instructed to testify to specific physical, material, or psychological injury sustained as a direct consequence of the crimes of the accused. This typically involves establishing a family link between the civil party and a victim of Tuol Sleng prison (S-21). The judges as well as the attorneys are cognizant of the fact that a major purpose of civil party participation in these proceedings is to help them deal with their tragic losses. Therefore, the judges have refrained from interrupting civil party testimonies throughout the past week even when they ran longer than the time allotted. While civil parties in the past week have certainly strayed from relevant facts on occasion, today they did so over prolonged periods. This prompted numerous requests from the President that the civil parties refocus their testimony and it slowed down the overall progress of today’s session.

The chamber also informed the public that civil party lawyer Silke Studzinsky was hospitalized this weekend and likely will be absent from the courtroom for an extended period. The other civil party lawyers will cooperate and coordinate as much as possible to enable to the trial to proceed expeditiously.

Civil Party Testimony Continues

Chum Neou resumed her testimony this morning by describing the final period of her detention at Prey Sar (S-24). After her baby died, she was put to work full-time as a laborer in the fields until Vietnamese troops captured Phnom Penh on January 7, 1979. During her evacuation she met Duch in the forest where the group had taken refuge. As she approached him, Duch removed his pistol from its holster and pointed it directly at her temple. (Duch later disputed the accuracy of this account.) He told her that he was surprised that she had remained at S-24 for two years and stayed in good health. Their meeting was cut short by gunfire in the distance which forced the group to continue its evacuation.

Judge Lavergne inquired further about her meeting with Duch. He noted that even though the meeting occurred after the events for which the court has jurisdiction, her account was nonetheless relevant to the issue of Duch’s character. She explained that she had seen Duch two times prior to their meeting in the forest. On those days, she was warned to be careful because the chief was coming to monitor the work. She saw Duch walking alone with no bodyguards and according to her, he looked happy and worry-free. It did not appear as if he cared about the hardship or suffering at S-24. Duch also disputed this aspect of her testimony, stating that he never appeared at S-24 when detainees would be able to see him.

The afternoon session began with the testimony of Chhin Navy whose husband perished at S-21. Chhin Navy was separated from her husband after Phnom Penh was evacuated on April 17, 1975. Her husband had to stay behind but before they separated he asked his wife to promise to take care of herself and to take care of the kids. She described a feeling of despair, thinking that her husband would not return and that they would be separated forever.

Later, Khmer Rouge officials came to her house to question her about her husband. During that meeting, her sister-in-law accused him of being part of the CIA. Chhin Navy never understood why her sister-in-law would betray the family with such lies and broke down into tears when recounting this specific event. Later, she and her children were sent to re-education camps where they were put to work and warned that if they did not do as they were told then they would not survive.

After the liberation of Phnom Penh, Chhin Navy returned to the city in hopes of reuniting with her husband. She received no news about him until 1980 when she visited S-21. While there, she saw many of the detention cells and was told of some of the horrors that occurred in the prison. She fainted when she found a photograph of her husband and documents showing that he had been arrested and “smashed” at S-21. She still does not have the courage to return to the prison. She tried to remain strong for her children but raising them without a father was an extreme struggle. She explained that nothing can cure her suffering because she cannot escape the image of her husband being tortured and executed at S-21. After a long and emotional testimony, the President intervened by thanking her and noting that the chamber had heard sufficient testimony.

The civil party Touch Monin took the stand late in the afternoon. He began to describe in detail the events surrounding his forced evacuation from Phnom Penh. Several minutes into his testimony, the defense counsel objected, noting that while the facts relating to the evacuation of Phnom Penh were historically important, they were outside of the scope of Touch Monin’s testimony. The court sustained the defense objection and reiterated its previous instructions that the civil party remain focused on the relevant facts. Touch Monin resumed his testimony by explaining that he was there to pay homage to his cousin and to keep his cousin’s memory alive. His cousin had received his engineering degree in Russia and was abroad when Phnom Penh fell to the Khmer Rouge, but returned about three months later. Like many others, he was arrested when he returned to Cambodia and sent to S-21 where he was eventually executed.

Labels: Civil Parties, duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law
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Trial Footage - Transcript

The first civil party to testify this morning in the trial of Kaing Guek Eav (alias Duch) was Chum Sirath. He lost two of his brothers, his sister-in-law, and her unborn child during the period of Democratic Kampuchea. He was in Europe on April 17, 1975, when Phnom Penh fell to the Khmer Rouge. He decided not to return home for fear of being arrested by the Khmer Rouge as an enemy of the regime. Instead he moved to France and was granted French citizenship.

The rest of his family was not so lucky. His family was very poor but they were a very happy family. His parents wanted to educate their children so that their children could lead a better life. Chum Sirath had been awarded a scholarship to study in France from 1960 until 1968. His younger brother, also a bright student, was awarded a similar scholarship during that time, but he decided not to travel to France so that he could take care of his family. As a primary school teacher, he was the breadwinner of the family.

On October 29, 1976, Chum Sirath’s two brothers and sister-in-law were arrested and sent to Tuol Sleng prison (S-21) for allegedly opposing the system of collectivization. His brothers were 28 and 33 years old, and like virtually every other prisoner at S-21, they never made it out alive. Chum Sirath visited S-21 upon his first return to Cambodia in October 1993 and found a record that one of his brothers had been executed on the first of January, 1977. The name of his other brother also appeared in the detention records of S-21 but no date of entry or death was ever recorded.

Chum Sirath has lived with sorrow and pain for over 30 years. This pain seemed to manifest itself in the courtroom today as his testimony transitioned into an emotional condemnation of the accused. He stared directly at Duch, pointed toward him, and spoke forcefully. He accused Duch of pure theatrics. He stated that he did not believe Duch to be truly remorseful. He criticized Duch’s conversion to Christianity as nothing more than an attempt to have his sins absolved, which he could not accomplish as a Buddhist. He emphatically stated that on behalf of his brother, sister-in-law, and her unborn daughter, he would never accept Duch’s disingenuous apology.

The defense counsel interrupted Chum Sirath twice and asked the court to preserve the serenity and dignity of the hearing by reminding him to speak about only facts related to his particular case. The President acknowledged Chum Sirath’s suffering but asked him to refocus his testimony on the relevant facts. The main purpose of the tribunal, he explained, was to find justice and not to affront anybody, including the accused.

When given a chance to respond, Duch reiterated his sympathy and remorse. He explained that he knew Chum Sirath’s brothers and considered them friends. However, he consciously avoided them because he could not stand to face the former friends and colleagues he had betrayed.


Live Testimony from France via Video Conference

The trial chamber began the afternoon session by receiving the testimony of civil party Ou Savrith. He testified live by video conference from France. (While in-person testimony is favored, the Internal Rules at the ECCC permit testimony by video conference so long as the witness can be interviewed live by the judges and testimony in this manner would not be seriously prejudicial to, or inconsistent with defense rights.)

Just like Chum Sirath, who testified in the morning session, Ou Savrith lost a brother at S-21. Ou Savrith also escaped the brutality of the Khmer Rouge regime because he was living abroad during the period of Democratic Kampuchea. He explained that his brother was a very gifted student and was on track for a brilliant career. He was married and left three children behind. Ou Savrith described his brother as affectionate and attentive. In fact, his eldest brother was his ultimate role model.

Ou Savrith explained that he has missed his brother at all stages of his life. He has spent roughly 10,950 days and nights (30 years) thinking about what happened inside the walls of S-21. He would wake up in the middle of the night sobbing uncontrollably. The rest of his family suffered in the similar ways. He read aloud a letter from his niece explaining the difficulties she has experienced growing up without a father.

Ou Savrith explained that he was only seeking moral redress. He wanted simply to know what happened during his brother’s detention, during his 97 days of suffering. He remarked that the handwriting in his brother’s confession was strong and harmonious. He did not believe that such writing could have been made under torture. In what must have been a very difficult moment for Ou Savrith, Duch stated that he could not confirm Ou Savrith’s conclusion. He explained that torture methods were often employed by interrogators and Ou Savrith’s brother could certainly have been subjected to such practices.

Asked whether he was ready to forgive the accused, Ou Savrith responded that the answer was clear – on behalf of his entire family there would be no forgiveness. All that they were left with was despair. Now, all that they seek is justice.

Abrupt Conclusion to Day’s Proceedings

The trial chamber then recalled civil party Chum Neou to the stand. She had been introduced at the very end of the morning session but had not been given a chance to begin her substantive testimony. She explained that in 1971 she voluntarily joined the revolution. In the years that followed she served as a chairwoman of her village, a combatant in the armed forces, and finally as a guard to an ammunition warehouse in Phnom Penh.

She worked in these various roles until August 9, 1977. On that date, her husband was arrested, loaded onto a truck, and taken to S-21. Three days later, she was arrested and sent to a different detention camp. She was detained there for five months during which time she gave birth to a baby boy. Despite her pregnancy she was still put to work cutting firewood and fetching water. After the five month period she was transferred to the Prey Sar reeducation camp (S-24), where her baby eventually died of illness.

The audio on the headsets abruptly stopped working as she began to describe her detainment at S-24. The technical personnel of the court could be seen running around the chamber in an attempt to correct this problem. It was very late in the afternoon and the large audience in the public viewing room became visibly restless. After about 15 minutes, the judges stood up and adjourned the session but no one outside the courtroom could hear what had been said. Unfortunately, Chum Neou’s testimony was cut short for the second time and she will have to resume when the court reconvenes.

Labels: Civil Parties, duch

August 19, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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Webcast of Trial Proceedings - Transcript

English
Part 1 | Part 2 | Part 3 | Part 4
Part 5 | Part 6 | Part 7

Khmer
Part 1 | Part 2 | Part 3 | Part 4
Part 5 | Part 6 | Part 7


The trial of Kaing Guek Eav (alias Duch) resumed this morning with the testimonies of Im Sunthy and her daughter, Phung Guth Sunthary. Im Sunthy took the stand first, accompanied by her medical assistant. Appearing in the courtroom to speak about her husband’s death was extremely difficult. In fact, she had collapsed earlier this week when she saw the photo of an unnamed prisoner at Tuol Sleng prison (S-21) lying in a pool of his own blood. The picture conjured up memories of her husband, Phung Ton, and the painful thought that he may have also been one of those victims similarly struggling for his life. Accordingly, her lawyer informed the court that she would only be making a brief statement regarding her pain and suffering, and her daughter would represent the family by delivering a comprehensive account surrounding the fate of Phung Ton and the suffering that the family consequently endured.

Im Sunthy’s husband, Phung Ton, was a highly respected professor and former university dean. In fact, his former students include Duch’s co-counsel as well as the accused himself. On March 16, 1975, Phung Ton left his family to attend several conferences in Europe. His family never saw him again. One month after his departure, the Khmer Rouge took full control of Phnom Penh and forcibly relocated all families, Im Sunthy’s included, to the countryside where they were put to work in the fields. During this evacuation, she was forced to destroy all of the photographs of her husband that she had brought with her. Im Sunthy described this period as one of extreme hardship; a period during which they were mistreated and suffered from a lack of food. When the Khmer Rouge regime fell in 1979, she returned to Phnom Penh with her family in hopes of being reunited with her husband with whom she had lost contact. She learned later that shortly after his return to Cambodia he had been sent to S-21, the prison where, she said, no one survived.

The news completely shocked her. She fell into a state of utter distress and tremendous grief. She even attempted to commit suicide to escape the extreme sorrow. Now she can only live by consuming medication. She explained that not a minute or a day goes by when she does not think of him, and the grief only intensifies as time passes.

She explained that she had joined as a civil party not to seek vengeance and revenge but rather to find justice for her husband and to pay homage to his lost soul. She wanted to preserve the memory of her husband and sought to uncover the truth relating to his death, many details of which still remain hidden.

Phung Ton’s daughter, Phung Guth Sunthary, then took the stand and provided an in-depth account relating to the disappearance and death of her father. She described her father as a gentle and humble man who always made time for his children despite his busy schedule. He was the kind of father who always sent his kids gifts when he traveled abroad. He earned the respect of all the people he met. He was open-minded, loved humankind, and carried himself with a great deal of dignity.

Upon her family’s return to Phnom Penh after the fall of the Khmer Rouge regime, she began searching for her father. She always believed that her father would remain untouched because he had never hurt nor mistreated anyone. Her family received conflicting reports about Phung Ton, none of which indicated that he had been sent to S-21. They all held out hope, until one fateful day she discovered the picture of her father in a local newspaper. She and her mother were exchanging rice for palm sugar which was given to them wrapped in a newspaper. She recalled that she had not been able to read anything during the previous four years because of the policies of the Khmer Rouge, so she removed the newspaper to see what was written. What she discovered left her and her mother pale and speechless. Jumping right off the page was a picture of her father with a placard hanging from his neck – a photograph that was taken at S-21.

Phung Guth Sunthary and her mother then visited S-21 in search of the truth. There, they found only a depressing place where the stench of blood and of dying people lingered, many months after it had been abandoned. They were shocked beyond belief. Her mother could not even move. They left with despair and wept quietly all night.

She later found out more information from letters her father had sent to friends, and documentation made available to her by the Documentation Center of Cambodia (“DC-Cam”). Her father did not trust the Khmer Rouge regime but felt compelled to return to his country to be with his family. According to him, to do otherwise would be a crime. He returned to Cambodia on Christmas day, 1975 where he was immediately detained and sent to several different detention camps before his final transfer to S-21 in December 1976. Documentation suggests that he was detained for at least seven months during which, she testified, he was surely tortured, terrorized, and ultimately “smashed.”

Phung Guth Sunthary explained that the loss of her father was a severe psychological shock. She explained that her father was the person she always turned to when she had a problem. She described nightmares where she would see only her father’s body floating in the sky. The loss of her father filled her heart with suffering – a wound which cannot be cured – and one which only intensifies as she gets older.

She then put several questions to Duch in an attempt to fill in the details surrounding her father’s death. She noted that she was there seeking the truth, not revenge, and despite the fact that she consistently attended trial proceedings, she has not received answers to her questions. (She is one of the very few of the nearly 100 civil parties that has attended the trial virtually every day.) She prefaced her questions by noting that her father’s fate was in the hands of Duch, a meticulous and thorough man. Therefore, he necessarily had the answers to her questions and if he did provide them he should never be allowed to claim that he is remorseful. Specifically she sought to ascertain who ordered the arrest and eventual execution of her father. She also asked what kind of torture was administered to a liberal, open-minded, and progressive man like her father – a man who was the antithesis of everything the Khmer Rouge represented.

Duch responded by noting that he had a deep respect for Phung Ton, who had been his professor and had defended him when he was a student. Duch maintained that he was never aware of Phung Ton’s presence at S-21. He insisted that if he had known of Phung Ton’s presence he would have ensured that Phung Ton received adequate food and accommodations, as Duch had done with another former professor. (Despite this deep respect Duch noted that he could never have spared Phung Ton’s life because official policy required that every prisoner at S-21 be executed.) Duch recognized the fact that he did not provide sufficient and satisfactory answers to the questions posed to him by Phung Guth Sunthary and asserted that he would continue to try to ascertain this information as best he could.

The day’s proceedings concluded with the testimony of the civil party Seang Vandy. Before the revolution, he and his brothers worked as farmers. He chose to join the army in 1972. The following year, his father, brothers, and other men from his village were forced to join the army, at which point they lost continuous contact with their families. After the fall of the Khmer Rouge regime, the men began to return to the village. Seang Vandy expected to see his two brothers return home. They never did.

He and his family worried because they had heard rumors about mass arrests and executions but they held out hope. That hope began to fade when a friend who served in the same military unit told Seang Vandy that his brother had been detained, sent away, and never returned. He lost the little hope that remained when he discovered a photograph of his brother taken at Tuol Sleng prison in the DC-Cam magazine Searching for the Truth. His other brother’s fate remains unknown as he never came home and no evidence of his whereabouts has ever surfaced.

Seang Vandy was extremely shocked to learn that his brother had been detained and executed at S-21. His parents also felt a sense of despair and hopelessness. He described his difficult visit to S-21 where he saw the remnants of the barbarity and cruelty of the Khmer Rouge regime. He could not hold back his tears after reading his brother’s confession. He experienced recurring nightmares where his brother would call out to him for help. Despite his tragic loss, he attested that this trial was easing his pain because it was helping achieve justice for the crimes perpetrated against his brother.

Labels: Civil Parties, duch

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law
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Part 1 | Part 2 | Part 3
Part 4 | Part 5 | Part 6

Today, the court continued to hear testimony from the civil parties in the trial of Kaing Guek Eav (alias Duch). During the last two days, the court has received the testimony of seven civil parties and is thus progressing at a quicker pace than scheduled.

“Never, never will I forgive him”

The morning session began with the testimony of Antonia Tioulong, a French national of Cambodian parents. Her sister, Raingsy Tioulong and her brother in law, Lim Ki-Mari, were both detained as prisoners at Tuol Sleng prison (S-21) and executed. Antonia Tioulong testified in her capacity as a civil party, but was also there as a spokesperson for her entire family.

Her father was a high ranking official affiliated with the government of Prince Sihanouk. Due to his prominent role in that government, the Tioulong family was exiled from Cambodia in 1970 after Lon Nol took control of the country. Despite this order, Raingsy Tioulong decided to stay in Cambodia and was able to do so by using her husband’s name. Raingsy and her husband did not want to uproot their life in Cambodia where she worked as an anchor for a French radio station and he worked as a banker. However, as the political and security situation deteriorated in Cambodia, Raingsy sent her children to Paris to receive a good education in a safe environment. The family last heard from Raingsy in March of 1975. Thereafter they endured many difficult years of silence. After the fall of the Khmer Rouge, France opened its borders to many Cambodian refugees. However, Raingsy and her husband were not among those who made it to French soil for they had already perished at the hands of the horrific regime.

The Tioulong family was later reunited with cousins who had made it to France as refugees. The stories they recounted were horrifying. They had gone through hell – but they could be considered the lucky ones. The family had to relay the terrible news that Raingsy and her husband were not so lucky, for they had not survived the brutal regime. They had been imprisoned and executed at S-21. This news was devastating and came as a tremendous shock to the Tioulong family.

The family members had a very difficult time coping with their loss and everyone managed to grieve in their own way. Raingsy’s children developed many psychological problems. Psychiatrists confirmed that their symptoms were directly linked to the trauma relating to the death of their parents. They could not appear in court because they were not ready to face the accused. Antonia Tioulong had lost a sister, her parents had lost a daughter, and her nieces and nephews had lost a mother.

She emphasized that an apology is not enough for justice to be done and she urged the tribunal to punish Duch in a manner which is commensurate with the crimes he committed. She noted that during the Nuremberg trials, many of those who were found guilty were sentenced to death. She did not seem to be insinuating that she hoped this tribunal would mimic the Nuremburg courts in its sentencing, but rather was simply illustrating the gravity of his crimes from a historical perspective. (The death penalty is a prohibited form of punishment in this tribunal.) She lamented the fact that while Duch was receiving a fair trial and being given adequate accommodations, all of his victims were denied those basic rights. For that, she stated emphatically, “Never, never will I forgive him.”

Cambodian Civil Parties Testify

The chamber then called Hav Sophea to testify about the loss of her father, Chan Sea, at S-21. Her father was a soldier but was arrested in 1976 and was executed on the 15th of May of the same year. Just like Ouk Neary, one of yesterday’s civil parties, Sophea never knew her father, but still suffered terribly from his disappearance and death. She was born 21 days subsequent to Chan Sea’s arrest. She and her mother had to wait many years before receiving information regarding the circumstances of his death.

Sophea tearfully described growing up without a father as a “struggle to hold on to life.” The absence of her father caused the family financial, physical, and emotional hardship. Her dream was to become a school teacher but she had to quit school at grade seven because her mother had no more money to continue funding her studies. When her mom finally received documentation showing that her husband had been executed at S-21, she burst into tears. Her mother did not apply to become a civil party because she still cannot face the accused. Sophea described her own suffering and the pain that she felt – a pain that was magnified by the realization that her father died under such cruel circumstances. After her own visit to S-21, she sustained recurring and vivid nightmares. She explained emotionally that she had never seen his face when he was alive, but could not escape his image after his death.

The third civil party called to testify was So Song. Like countless others, she lost her brother-in-law at the hands of the Khmer Rouge regime. Before her testimony got underway, the civil party and defense lawyers held an intensive exchange over the admissibility of the civil party’s testimony. The defense argued that there were enough discrepancies with the documents provided to call into question the civil party’s actual relationship to the brother in law, and whether he was in fact detained and executed at S-21. Despite the fact that it is the civil party who bears the burden of proof to provide a link between the civil party and the accused, the President decided first to hear the testimony and only later to determine the probative value of such testimony based on the veracity of the witness.

So Song represented her sister as a civil party because her sister was too ill to testify on her own. She explained that she had been living with her sister and her brother-in-law since she was seven years old. Her relationship with them was as much a relationship of parent-child as it was of sibling-sibling. Song explained that after they learned of her brother-in-law’s death, her and her sister’s life began to deteriorate. She concluded emotionally, “He was a dear husband, a dear father, and a dear brother – we all cried.”

The final civil party to be called was Neth Phally. Both he and his brother were in the same military unit. His brother was seriously wounded in battle in 1978 and was sent to the hospital in Phnom Penh. There, Neth went to see him twice. Upon his third visit, Neth found only an empty hospital room. No one could tell him where his brother was transferred. He never saw his brother again. He searched for his brother for many months with no success, but still held out hope that his brother was alive. That hope ended in June 2004 when DC-Cam found the biography of Neth Phally’s brother. This discovery deeply saddened Neth and his family. Neth Phally still lives with great suffering knowing that his brother perished at S-21, a prison where detainees were not only executed, but were tortured in a most horrific manner.

Labels: Civil Parties, duch

August 17, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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Today proved to be one of the most emotionally charged days to date in the trial of Kaing Guek Eav (alias Duch) as the civil parties were given the opportunity to share accounts of their suffering with the court.

Mother and Daughter; Widow and Orphan

The court first called the civil party Martine Lefeuvre to read her statement. By way of introduction, and pursuant to the Chamber’s request, her lawyer explained that Lefeuvre was married to Ouk Ket, who was a prisoner and had been executed at the Tuol Sleng prison (S-21). She and Ouk Ket had met in Paris and were married in October 1971. Shortly after their marriage, the family moved to Senegal where Ouk Ket worked as a Cambodian diplomat. While there, Lefeuvre gave birth to two children, one son and one daughter.

In April 1977, Ouk Ket received correspondence from the foreign ministry requesting his return to Phnom Penh. According to Lefeuvre, Ouk Ket was looking forward to the opportunity to return to his country so that he could take part in its reconstruction. He seemed confident about the situation and was not afraid to return. However, before he left, Lefeuvre impulsively told her husband that if she were to find out that he died she would never believe it to be a natural death, to which her husband responded, “Honey, Cambodians are not savages.”

The family received two postcards from Ouk Ket after he left but after the second correspondence they never heard from him again. After 3 months of silence Lefeuvre contacted the Chinese embassy (Ouk Ket’s last postcard was sent from China), the International Red Cross, and Amnesty International in search of help and answers. She even contacted Prince Sihanouk whom she had met once before. Despite her efforts, she was unable to obtain any additional information about her husband.

At the beginning of 1980 she travelled to the refugee camps in Thailand to try to ascertain her husband’s whereabouts. While there, she ran into an old friend who informed her that he had seen the records at S-21. He relayed to her the devastating news that her husband had been sent to S-21 as a prisoner and had later been executed.

She returned to Paris with complete despair. She tried to reorganize her life and the lives of her children, knowing that they would have to grow up without a father. Initially, she could not even bear to tell her children the reality about what happened. Despite her best efforts, it was extraordinarily difficult to resume a normal life.

In 1990 after receiving a letter from her mother in law she returned to Cambodia with her two children. There they visited S-21 for the first time. She was overtaken by the horror. She was deeply saddened and angered. She then visited Choeung Ek where she described a feeling of complete revulsion when seeing all of the skulls piled one on top of another. In the weeks that followed she returned to S-21 to consult the records and found documentation that confirmed her worst fears – her husband had been sent to S-21 on June 15, 1977, and executed on December 9, 1977.

She described her husband as a gentle and kind man. He was an intellectual. Most of all he was a loving husband and an affectionate father. She recounted that “life with him was pure happiness.” She explained that not a day goes by that she does not think of her husband. Her husband’s suffering was, and still is her suffering, and it only intensifies with time.

She asked that the tribunal impose the “maximum” sentence because the punishment must be commensurate with the crime. She stated emotionally that she was not currently ready or able to forgive the accused. In response, Duch acknowledged the truthfulness of her testimony and nonetheless asked for her forgiveness.

Ouk Ket’s daughter, Ouk Neary, followed her mother’s testimony. She was two years old the final time she saw her father. Her testimony demonstrated that even someone who does not know her father can still sustain extreme pain and suffering due to his absence.

She testified that growing up without a father at an early age began to feel normal. This all changed at age 16 when she visited S-21 with her mother. She described the experience as the shock of her life and her later visit to Choeung Ek as the “worst place in the world.” She described the realization that she could have been one of those babies that was grabbed by the foot with her skull crushed against a tree as a “psychological journey into hell.” The images of S-21 still haunt her even though she grew up in France, proving that the suffering at S-21 was not contained within the walls of the prison or even the borders of the country.

She concluded by emphasizing that while her story was one reason to impose the maximum penalty, 17,000 other victims provided 17,000 additional reasons to impose the maximum penalty.

A Family Destroyed

The second civil party to testify was Robert Hamill, a New Zealand Olympic rower, whose brother, Kerry Hamill, had been sent to S-21 and executed during the rule of the Khmer Rouge regime. Hamill shared with the court the emotional and painful journey that he and his family endured and continue to endure as a result of his brother’s disappearance and execution. It was not the story of a tragedy experienced by just one man, but rather by a whole family. As the witness explained, “my family’s disintegration is my disintegration.”

Robert Hamill grew up with 4 siblings in a lively and loving family in New Zealand. He was the youngest of his siblings and his brother Kerry was the oldest. At age 26, Kerry embarked on a sailing journey through Southeast Asia with his girlfriend and several other friends. He would often write home to his family who eagerly anticipated his letters. Indeed, he was in the prime of his youth and was having the time of his life.

All this tragically ended on August 13, 1978. A few weeks prior, Kerry had sent a letter home from Singapore. It was the final letter his family ever received. The subsequent silence was deafening. His mother would gaze out at sea and say “its ok - he’ll come home and surprise us.” The passage of time felt like an eternity as the family waited for news of Kerry’s whereabouts. While Robert Hamill and his family held out hope, deep down they knew something terrible had happened to Kerry. Their deepest fears were confirmed 1 year and 4 months after they received Kerry’s final letter, when they read a report in the local newspaper that Kerry had been captured, tortured, and killed. They later learned that his boat had come under attack by the Khmer Rouge, and he was sent to S-21 after his capture.

Having heard the news, the Hamill family lost all hope and began a process of disintegration. Robert’s brother John was 1 year younger than Kerry. Kerry and John were inseparable. During the 16 months between the time when Kerry disappeared and the time John heard the devastating news, he became deeply depressed. After learning about Kerry’s fate, John took his own life by throwing himself off a cliff. He was 27 years old, the same age as Kerry when he died. Robert observed that it is impossible to separate the two deaths. He asserted that if Kerry’s life had been spared, John would be alive today. He turned to the accused and stated emotionally, “Duch, when you killed my brother Kerry, you killed my brother John as well.”

Robert Hamill described his mother’s pain. While she was strong in front of her kids, the pain that she held in eventually made her sick. She stopped engaging in life. She removed herself from all social interaction. Sadly, she died in 2003, before she could see justice done on account of the death of her sons. Robert’s father also had a very difficult time coping with the loss of his sons. His mother and father had lost the ability to parent. They were paralyzed.

Robert Hamill described his own struggles and suffering. The image of the events surrounding his brother’s death has haunted him since he was 16 and still haunts him today. In what was certainly an emotional and tense moment, he was granted leave of the court to put several questions directly to the accused. Despite the pain that he has felt and the anger that he has harbored, he remained composed and professional in his questioning of the accused. He demonstrated great emotional strength. He did not address the accused in a vindictive or angry tone. Rather, he asked questions in search of answers; answers that will hopefully help him and his family deal with this unimaginable tragedy.

After listening to the accounts of unbearable suffering that the witnesses have dealt with as a result of the deaths of their family members, it is impossible not to feel sympathy for them, and hope that this process provides them with at least some sense that justice is being achieved.

Labels: Civil Parties, duch

August 12, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for International Human Rights, Northwestern University School of Law

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Today’s session in the trial of Kaing Guek Eav (alias Duch) closely resembled yesterday’s proceedings in form and structure. In the morning session a witness was called to give her live testimony while the court continued its practice of reading into the record prior written testimonies of witnesses during the afternoon session.

“No one left to work hard for”

The morning began when the court called 64-year-old Bou Thon to the witness stand. As with several of the other witnesses, the President reminded her of her rights and obligations as a witness. Namely, she has the right to refuse to answer questions that would be self-incriminating and she has an obligation to tell the truth in her entire testimony.

Thon explained that she got married before 1975 and moved with her husband to Phnom Penh. However, when the Khmer Rouge captured the city her family decided to return to their home village. On their way back, they were stopped by Khmer Rouge soldiers and redirected to Phnom Penh where they could be put to work for the cause of the revolution. Her husband was initially assigned to be a driver of a fuel tanker while she cooked for him and staff at the Ministry of Energy where he was assigned. In 1977 Thon gave birth to a newborn baby in a hospital only to discover upon leaving that her husband had disappeared. Sadly, she never saw him alive again. She later discovered his picture at the Tuol Sleng prison (S-21) which confirmed her fears that he had indeed been executed.

During her testimony she mentioned that all of her children had died, leaving her all alone. This prompted the President to inquire about exactly how many children she had and how they died. Strangely, there was a lot of confusion over the basic and preliminary question of how many children she had. Some parts of her testimony seemed to suggest that she had 4 children while other parts seemed to suggest that she only had 3 children. The confusion was most likely a result of translation problems. While she had difficulty clearly expressing the number of children that she had and how they perished, the feeling of sadness and loneliness she was left with could not be expressed more clearly than the way it was on her face.

After the disappearance of her husband, she was moved to several different locations but spent the majority of her time at the S-24 facility. During her time there, she was put to work from morning to night with only two very short breaks. During her morning break she was able to see her newborn baby and breast-feed him. He spent the rest of his time with a nearby caretaker. She testified that while she did not witness anyone else being beaten, she herself had been physically abused at S-24. Furthermore, she testified that virtually every evening some prisoners were selected to be moved to a new facility. None of those prisoners ever returned.

She remained at S-24 until the Vietnamese army captured Phnom Penh and all remaining personnel fled from S-24. As she explained, she “stupidly” followed the rest of the group, including Duch, instead of going back to her home village. She estimated that there were about 100 people on the run (including Duch) which she was able to determine because she had made “3 big bowls of rice.” She remarked that when they were on the run, Duch appeared to be a very normal man and a human being. It was then when someone pointed out to her that Duch had been in charge of S-21 and S-24. As she was recounting her flight from S-24, she seemed to have trouble holding back her emotions. She admitted that she did not immediately return home because she was “ashamed” that she had lost her husband and her children. While she eventually realized that there was nothing to be ashamed of, it was quite clear that she still holds on dearly to her memories. In perhaps the most powerful moment of the day, she explained how every time she goes out to the farm now she asks herself why she is doing so because she has “no one left to work hard for.”

The judges then turned the questioning over to the Civil Parties. This produced a short but noteworthy exchange. Thon was asked about a specific conversation she had with her husband before he disappeared where he reluctantly told her about things he had heard relating to arrests. He stressed that they needed to be careful about what they said and did. She then explained that her husband did not initially want to tell her what he knew because “women talk a lot.” This elicited a large amount of laughter from the gallery on an otherwise very somber day.

Toward the end of the questioning the Civil Party lawyer awkwardly asked her own witness whether she would feel guilty if she performed an evil act but was being forced to do it by someone else. It is hard to understand the purpose of the question. Thon was understandably thrown off and responded that she had never done anything evil because she is a good person so she could not answer that question. After another similar question, the President intervened to remind counsel that personal questions in the form of a hypothetical should be avoided because responses to such questions are imaginary.

Before Duch took his opportunity to make comments and observations, the defense counsel asked the witness whom she should really be angry with when there was a line of command and a hierarchy that people were forced to follow. The defense counsel seemed to suggest in his question that she could only be angry with one person and not multiple people. This might have confused her because she seemed to have trouble answering this question. In response, she stated that she cannot be angry at Pol Pot now because he is dead so she is relying on lawyers to find “justice,” but did not seem able to define the concept of “justice” for herself.

Next, Duch told the chamber that Thon’s testimony came from years of pain and suffering. At this point the Civil Party lawyer asked the chamber to end Duch’s response because it seemed to have a negative emotional impact on the witness. Even though Duch was apologizing, in a sense, it was bringing back very painful memories for the witness. The President allowed Duch to finish but asked that he not bring up specific things that would surely hurt the witness. Duch ended by stating that the Cambodian people should condemn him to the highest level of punishment. He continued to say that he shares the sorrow and the suffering of Cambodians with the bottom of his heart and will accept the judgment from the tribunal by “legal and psychological means without objection.”

Additional written accounts of “life” at S-24

Just as it did yesterday, the chamber spent the second half of the day reading prior written testimony into evidence in lieu of oral testimony. Both statements that were entered into evidence this afternoon related to the treatment of prisoners in S-24

The first witness was Phach Siek, a woman who had voluntarily joined the revolution in 1972. She served in the army in different capacities until 1977 when she was arrested and put in prison at the Prey Sar re-education camp (S-24). She was given no reason for her arrest at the time but she later learned that her division commander had been arrested under suspicion of being a traitor and therefore most of his subordinates were viewed with suspicion as well. She explained that the S-24 camp was divided into several different units. She was segregated into a unit that contained only married women and/or elderly women. She was forced to work from 2:00 A.M until 12:00 when she would have a lunch break for 2 scoops of gruel. She then returned to work from 1:30 to 5:30 P.M., and often again until 10:00 P.M. She recalled how the food was insufficient but there was no way to complain because they could not move freely or speak freely to one another. She also noted that there was a special building where prisoners were beaten and another where they were administered electrical shocks for interrogation purposes. While she was told that S-21 was for those high commanders that betrayed the nation and S-24 was for subordinates, every night new prisoners were shipped from S-24 to S-21, never to be heard from again.

At the end of her testimony she gave a different account of fleeing S-24 during the Vietnamese invasion than did the witness Thon this morning. Siek stated that Duch ordered 35 people arrested when they were on the run and that number included Siek. Luckily Siek was one of 6 that he later released. Duch vehemently denied this account. He stated that Thon’s morning account was accurate. Other than that disagreement, he did not forcefully attack Siek’s testimony. On the contrary, he admitted that numerous points she made were accurate and true.

The second and final witness of the day was Kaing Pan who was also a former guard-turned-prisoner in the late 1970s. Pan worked long hours digging canals but was not beaten or tortured. Corroborating Siek’s testimony, Pan also witnessed many trucks arriving nightly to take prisoners to S-21. Pan also stated that screams and cries for help could be heard at S-21 during political training sessions. To conclude the day, Duch confirmed that Pan’s written statement was “true in principle.”

Labels: Bou Thon, duch, Kaing Pan, Phach Siek

By Terith Chy, Documentation Center of Cambodia
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Trial Footage - Transcript

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This morning Som Meth, a former guard of “important prisoners” at Tuol Sleng prison (S-21), continued his testimony about details of the operations of the prison which was run by the Accused Person, Kaing Guek Eav (alias Duch). He resumed his testimony in front of the judges as well as approximately 400 teachers from the vicinity of Ta Khmao who had come to observe.

In response to a question posed by the national co-prosecutor, Meth testified that he had witnessed the use of torture while serving at S-21. For example, he witnessed cold ice being poured over the body of a prisoner after the prisoner had been stripped down to his underwear. Meth was then asked to comment about a painting by Vann Nath, a prisoner and painter at S-21, which depicted a prisoner having his fingernails pulled out. Meth testified that he did not witness such acts personally, but that he did see the wounds which made it clear that the fingernails had been pulled out. The civil party lawyers continued down this line of questioning, asking Meth to confirm a previous statement that he was witness to other forms of torture such as genital electrocution. However, Meth refused to elaborate, stating only that he already told the court what he knew and what he saw.

Meth remarked that Duch occasionally would visit the interrogation room for some of the “important prisoners,” a statement which prompted Duch to confirm that he occasionally visited prisoners while they were being interrogated. In response to a question about the character of a particular interrogator at S-21, Meth responded succinctly that, “All interrogators were vicious.”

Living with Fear

Meth continued his testimony by illustrating his fear of Duch. He remarked that even though Duch did not appear to be a violent person, Meth was “always scared of him.” Furthermore, he asserted that he never enjoyed working at S-21, but concealed his true feelings for fear of being arrested. As it turns out, he was only one of four or five persons of his 50-member unit to survive.

Meth became a target of suspicion when his brother, Meng, and his wife, Poeun, were arrested and brought to S-21. Ultimately, both were killed. According to Meth, Him Huy helped keep him alive. Huy was the one who told Meth about the arrest of his brother. Meth asserted that it was extremely hard to concentrate on working after receiving the news of his brother but he abided by Huy’s advice that the only way to stay alive was to continue working as if nothing had happened.

The defense then proceeded to ask Meth why he did not try to escape given all of the circumstances. Like many other guards and interrogators who have testified, Meth stated that it was impossible for him to escape. Not only was it difficult to leave the premises undetected, but he knew that if he did escape he would be putting his family in immediate and grave danger. The defense seemed to be continuing its strategy to paint Duch as a man who faced a similar dilemma – following orders from superiors or facing grave and fatal consequences.

Duch's Response

Duch did not contest the fact that Meth was a guard at S-21. Instead, in his response he continued to show remorse for some of his actions. He asserted that he deeply regretted the fact that he indoctrinated so many people with the ideas and policies of the revolution. He also showed remorse for the fact that he was responsible for submitting reports to his superiors that identified many innocent people who ended up being arrested and killed.

Reading of Witness Statements

Consistent with the Trial Chamber’s recent practice, several witness statements were read into the record in lieu of oral testimony.

Witness Mokk Sithim

Mokk Sithim was a medic at S-21. He treated many prisoners for wounds they received as a result of beatings and other physical abuses such as having their fingernails pulled out. Furthermore, some prisoners told him that they had been electrocuted. According to his statement, interrogators had him administer medical treatment to prisoners so that they could effectively continue the interrogation process.

He also treated 30 to 40 prisoners who were pale and weak due to the common practice of drawing blood. He stated that he saw many of the discarded blood containers. Prak Khan, a former interrogator at S-21, had testified previously that blood taken from prisoners was sent to Hospital P-17 and Monivong.

Duch dismissed the testimony of Mokk Sithim, stating that he did not believe that Sithim was actually a medic at S-21. On the issue of drawing blood, Duch asserted that it was his superior, Son Sen, who mandated this practice and it had been implemented even before Duch became the head of S-21. Furthermore, he claimed that only about 100 prisoners were subjected to this practice as opposed to the estimate of 1000 prisoners claimed by Prak Khan.

Witness Tay Teng alias Dy Teng

Tay Teng was a guard at both S-21 and Cheung Ek. He was charged with digging graves at Cheung Ek. He stated that Him Huy and another guard drove prisoners to the execution site in trucks that carried roughly 20 prisoners. His account relating to Cheung Ek was consistent with Him Huy’s earlier testimony.

Teng detailed the procedure that was used for executing prisoners. Upon their departure from S-21, prisoners were tied up and blindfolded. Once they reached Cheung Ek, they were kept in a house about 100 meters from the graves where two or three prisoners were called out at the same time. They were made to kneel about 1 meter away from the pits and then clubbed with iron bar. Executioners also used a knife to slice open their stomachs or slit their throats to ensure that the prisoners were dead. Once all prisoners were executed, a team of guards filled the graves. There were about 10 corpses in each pit and about 20 or 30 pits. Teng stated that he never saw any children at the execution site. Duch acknowledged that Teng did indeed work at S-21 and his testimony was truthful.

Witness Som Sam-Ol

Som Sam-Ol claims to have worked as a messenger for the Ministry of Foreign Affair. He stated that on several occasions he was assigned to dispatch letters to Duch at his house. Even though he did not meet Duch in person, he left the letters with Duch’s messenger Chhen. Sam-Ol also indicated that Duch assigned Chhen to take a pile of hand-written documents to the Ministry, which he assumes were documents of confessions of S-21 prisoners. Duch challenged Sam-Ol’s entire statement, claiming that he was not a messenger from the Ministry of Foreign Affair but merely a simple guard at S-21.

Som Sam-Ol also stated that several high-level Khmer Rouge leaders were present at Duch’s wedding. Again, Duch contested this account, asserting that he had no connection with the Khmer Rouge senior leaders except for Son Sen and Nuon Chea. According to him, the wedding was not held at his house in front of Srah Srang, but at a military office in the Western Zone. He denied the claim that Ieng Sary, Khieu Samphan, Nuon Chea, Son Sen, and a film crew from China were in attendance. He went on to list the names of the wedding participants who consisted mainly of S-21 senior staff and a few high ranking officers from the Western Zone.

Witness Ouk Bunseng

Ouk Bunseng stated that he was a Khmer Rouge soldier. He was based initially in Phnom Penh before being sent to Cheung Ek and the Prey Sar re-education camp (S-24). He stated that he was once sent to S-21 for political “training” by Duch. He also asserted that he later met Duch for a second time on Kravanh Mountain after the invasion of the Vietnamese army in 1979. He claims that Duch ordered his subordinates to arrest six people (three men and three women) for allegedly imitating a bird’s cry that sounded like Pol Pot.

Duch contested Bunseng’s testimony. First he stated that the “training” Bunseng spoke about was conducted by Son Sen and was limited to S-21 cadres. He proceeded to accuse Bunseng of lying about the arrest and execution of the six people after the invasion of the Vietnamese forces. He noted that he no longer had authority or power to issue any orders after he fled S-21.

Witness Meas Peng Kry and Tay Teng

Peng Kry worked at S-21 and was in charge of driving prisoners to the execution site of Cheung Ek. Tay Teng was in charge of receiving prisoners upon their arrival. He was also involved in digging and filling up the pits. He admitted to executing one or two prisoners himself, but maintained that execution was not his regular job. Both of these testimonies regarding the procedure of execution at Cheung Ek was corroborative of other testimony and Duch did not contest these statements as he did some of the immediately preceding witness statements.

Witness Horn Iem alias Moeng

Horn Iem alias Moeng, now 56, was a guard at S-21. He worked at several other locations before being moved to S-21 in 1976. He explained that he worked out of fear at S-21. One day, his boss noticed that he was not paying attention due to fatigue and warned him that a lack of attention would be met with serious punishment. Not soon after, he was arrested, blindfolded, shackled and locked into a room. He was later released but was never permitted to go back into the prison compound. Instead he was assigned to guard the perimeter of the prison.

Iem asserted that he attended Duch’s political training, which was an effective method of indoctrination. Specifically, trainees were taught to “identify all enemies” regardless of their relationship. According to the training, even parents should be suspected of being enemies. In fact, only purified people were to be considered parents.

Duch contested Ieng’s entire statement, claiming that he was not a guard at S-21.

Labels: duch, Dy Teng, Horn Iem, Meas Peng Kry, Moeng, Mokk Sithim, Ouk Bunseng, Som Meth, Som Sam-Ol, Tay Teng

By Socheat Nhean, Documentation Center of Cambodia, Graduate Student of Anthropology at Northern Illinois University

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Chhun Phal, age 47, looked simple, innocent, and relaxed as he testified with a smile in the trial of Kaing Guek Eav (alias Duch). After initially giving a statement to the Co-Investigating Judges (CIJs) in early 2008, Chhun Phal, appeared before the ECCC on August 10, 2009, to testify about his experiences as a guard at S-21 and his brief time spent at Choeung Ek, the notorious execution camp colloquially known as “the Killing Fields.”

During the Democratic Kampuchea (DK) era, the witness spent most of his time working as a guard at S-21. However, in 1978 before the Vietnamese arrived in Phnom Penh, he was sent to Prey Sar and Choeung Ek where he grew vegetables and worked on the irrigation system. At Choeung Ek the witness was assigned to bury dead prisoners.

In 1975, Duch requested that youth below the age of sixteen from Kampong Chhnang be recruited to work as guards at S-21. Duch wanted young men from poor backgrounds who had no prior contact with political doctrines. However, Chhun Phal did not know that he was recruited as an S-21 guard due a request by Duch. The witness also never met Duch, even while assigned to work at S-21. Today, thirty years after being dismissed from his position as a guard, the witness had a chance to testify in front of his former boss.

Joining the Revolution

In Kampong Chhnang province, shortly before the Khmer Rouge (KR) took control in April 1975, a village chief assigned Chhun Phal, a fifteen-year-old boy, to join the revolution. The KR sent him to Sala Lekh Pram commune for about a week before they sent him to Phnom Penh. After spending a month in Phnom Penh, where he testified that he did little of anything, he was then sent to train in martial arts and military exercise at Takhmao.

Like other revolutionary soldiers, the KR enlisted Phal to farm at Prey Sar. Phal does not remember how long he worked at Prey Sar, but does recall that he worked next as a guard at Tuol Sleng. When asked by the judge if Tuol Sleng had another name at the time, Phal stated that the terms Tuol Sleng and S-21 were synonymous.

Situation at S-21

From his memory, Phal recalled that S-21 had four main buildings and Phal was assigned to guard one of the three-story buildings. At S-21, Phal and eleven other guards patrolled S-21 and kept prisoners under control. As a guard, S-21 staff taught Phal to be very cautious of prisoners attempting to flee or commit suicide. Phal testified, “When guarding outside the courtyard, I was armed, but if guarding outside, I was not armed. If a prisoner fled, the guards would be imprisoned.”

Phal further added that prisoners were held in individual or common rooms. Individual rooms had windows so that the guards could see the prisoners from the corridor and the guards regularly checked the shackles of the prisoners. In common rooms, prisoners were detained and shackled together. The guards constantly checked the lock to make sure the shackle was secure. Guards were on duty 24 hours a day and seven days a week; S-21 generated enough light at night so that the guards could see.

Prisoners

According to Phal, the prisoners were provided little food to eat and were skinny. Male prisoners were more carefully guarded than female prisoners. While male prisoners were shackled and kept in the common or individual cells, female prisoners were not handcuffed or shackled, but were put in securely locked rooms. Male prisoners needed to ask permission from a security guard before they could stand. Prisoners wore old and tattered clothes; some wore shorts, some trousers and some went shirtless. Phal testified that some prisoners came with their children, but those children disappeared two or three days after their mother arrived. Foreign prisoners were detained separately from Cambodian prisoners.

Burying the Bodies of Prisoners

When initially asked by President Nil Nonn whether Phal saw any prisoners taken away and where they were taken to, Phal said that he did not know: “Prisoners were brought in and taken out; some were brought back, some were not. I did not know where [the prisoners] were taken to.” However, just before the Vietnamese soldiers arrived, Phal was at Choeung Ek and he also admitted that one time S-21 staff sent him to Choeung Ek to bury dead prisoners.

The answer attracted the President’s attention and he began to ask more questions about how the guards treated dead prisoners. Phal testified that one day at around six in the evening, he was told to go to Choeung Ek to bury dead prisoners. Phal described the pit as being three meters in length by two meters in width. When he stood in the pit it came up to his neck. Phal added that all the dead bodies were naked and that after the pit was full, his group of three or four began to re-cover the pit with dirt and that “it took my group about two hours to bury one pit.” He testified that he buried bodies in only one pit.

The President then read the transcript of an interview that the CIJs conducted with Phal on January 18, 2008. The answers that Phal provided today were not very consistent with what he told the CIJs. When Phal did not explain, the President respected the witness’s right not to answer and decided not to continue with this line of questioning. Duch then commented on Phal’s testimony and said that he acknowledged that Chhun Phal was one of the guards at S-21.
After Chhun Phal’s testimony ended, the Chamber called the next witness, Som Meth, 51 years old, from Kandal province. Meth joined the revolution in 1973 and was involved in several battles. He was given political and military training for eight months before becoming a guard at Dumpheng prison, a prison set up before the creation of S-21.

Meth had only one year of education and could hardly read or write. In 1977-1978, the KR sent those who could read and write to work as interrogators, while those who could not read were assigned to work as guards. Like other prisoners, shortly before the collapse of the KR, Meth also farmed the fields at Prey Sar.

Som Meth’s testimony will continue on August 11, 2009.

Labels: Chhun Phal, duch, Som Meth

Morning Session by Socheat Nhean, Documentation Center of Cambodia, Graduate Student of Anthropology at Northern Illinois University
Afternoon Session by Spencer Cryder, Legal Intern with the Documentation Center of Cambodia and Candidate for J.D. 2010, Tulane University Law School

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S-21 was Inhuman and Autonomous

A recognized expert on Cambodian history, Professor David Chandler, 76, has extensively researched Cambodia since 1960, when he worked as a diplomat. In the trial of Kaing Guek Eav (alias Duch), Chandler mainly testified regarding his book, Voices from S-21: Terror and History in Pol Pot’s Secret Prison. To write this book, Chandler spent a total of four years doing research in the early 1990s, reading over 1,000 confessions of prisoners, and interviewing numerous S-21 survivors and security guards.

Chandler testified that S-21 was an inhuman and autonomous prison created to kill the enemy who desired to destroy the revolution and hid amongst the cadres and people. Chandler found S-21 inhuman because prisoners were tortured and forced to write confessions, security guards had virtually no freedom, and everyone lived in a continuous and complete state of fear.

Chandler considered S-21 an autonomous institution because the people inside S-21 were isolated from all other communities and no information from the facility was broadcast to the outside world. Supporting this finding of autonomy, Chandler noted that secrecy was the core of the Khmer Rouge leadership and S-21 was not publicized. Communication only occurred between S-21 and the Khmer Rouge central government. Chandler also quoted Nuon Chea who told a Danish delegation in July 1978 that, “Secrecy was the top priority of the Khmer Rouge leadership.”

Purge of Khmer Rouge cadres

In response to Judge Cartwright’s request for a general comment about S-21, Chandler said that the Khmer Rouge set up S-21 to establish control over the internal enemy. The paranoia regarding the internal enemy caused the Khmer Rouge leaders to purge any cadre who rejected their policy. Accused of being either CIA spies, KGB agents, or connected to the Vietnamese, the Khmer Rouge purged untrustworthy cadres in late 1976 in the Northern and Eastern zones. As an example, during this time, a secretary of the Northern zone, Koy Tuon, was purged and sent to S-21 for a confession and subsequent execution. Furthermore, any cadres loyal to Koy Tuon also met the same fate. The numbers of S-21 prisoners reached its peak in 1977 when over five thousand “enemies” were brought in. In the next step, cadres from the Eastern and Northwest zones were sent to S-21.

Order to kill

Chandler stated that a written decision by the Khmer Rouge Central Committee on March 30, 1976, caused the wave of killings. The Central Committee was convinced that the internal enemy was everywhere in Democratic Kampuchea and all of those enemies had to be “smashed.” In Duch’s morning response, Duch also noted the importance of the March 1976 decision: “Before that decision, the arrest focused on former Lon Nol government officials such as soldiers, teachers and other officials. After March 1976, the arrests were targeted at the internal enemy, i.e., party members and high-ranking officials.”

An Able and Efficient Administrator

During the afternoon session, the civil parties questioned Professor Chandler regarding Duch’s administration of S-21. Based on his years of research, Chandler regarded Duch as an enthusiastic and proud administrator. Duch worked out the methodology of prison management from scratch because no precedent existed in Democratic Kampuchea (DK) for such an operation. Chandler noted that Duch’s constant innovation and improvement on the functioning of S-21 should come as no surprise. Throughout his life, Duch always pursued excellence – as a student, an apprentice, in his professional life, and at S-21. Duch did not want to simply serve the regime; he wanted to serve with a level of enthusiasm and skill that would make him proud of himself.

Dehumanization of the S-21 Prisoners

When asked about the process of dehumanizing the prisoners, Professor Chandler quickly noted that dehumanization is a global phenomenon. He pointed out how societies often use euphemistic terms to avoid the brutal reality of war, e.g., “body count,” “collateral damage,” and “smash.” Furthermore, atrocities are not committed by some distinct kind of people in a faraway land, but instead by normal people under extraordinary conditions. These conditions existed at S-21: By combining a routinized behavior of violence with no system of punishment for normally punishable acts, the S-21 staff eventually began to act with “revolutionary” enthusiasm towards a dehumanized “enemy.” By acting with absolute confidence in the implementation of their policy, Chandler compared the Khmer Rouge to a waterfall in which everyone was caught up.

Some of the prisoners didn’t need dehumanization because the Khmer Rouge considered the Vietnamese completely outside of the human race. Chandler noted that females who were Vietnamese, ipso facto, were the group most vulnerable to sexual violence. Furthermore, the dehumanization process began in the trucks on the way to S-21; the prisoners were already considered and treated as non-human garbage. Emotions such as mercy had no value inside the walls of S-21; the prison served only to interrogate and execute prisoners. Once inside the walls of S-21, the inhuman conditions were designed to further break down the prisoners.

We Should Not Look Any Further Than Ourselves

While Defense co-counsel Kar Savuth attempted to discredit Professor Chandler due to a lack of documentation regarding some of his opinions, Defense co-counsel François Roux delighted in allowing an expert to expound on such topics as Duch’s admission of guilt, the chain of command, and “crimes of obedience.” When questioned about Duch’s acceptance of responsibility for S-21, Chandler responded that the admission moved and impressed him and it would be of service to history.

When asked about Duch’s statement that he was “both a hostage and an actor in a criminal regime,” Chandler astutely noted that Duch’s regret emerged only during the final six months of the DK era and did not result in him deserting the movement in 1979 or the 1980s.

In relation to so-called “crimes of obedience,” Chandler acknowledged that during the DK era those in authority positions gave the orders, those receiving orders obeyed them, and little questioning of authority occurred at any level. Chandler followed up by noting that while obedience doesn’t explain everything, it does help to elucidate the context. Drawing similarities to other atrocities, Chandler stated that the most frightening lesson from the Holocaust was not that it could be done to us, but that we could do it to others.

Roux followed up on Chandler’s comment by quoting a line from his book, “We should not look any further than ourselves,” implying that the crimes committed at S-21 could have been committed by anyone in those circumstances. Chandler stood by this quote, confirming his belief that virtually all human beings are capable of evil given the right circumstances. However, Chandler stated that the mere capacity for evil does not equate to the manifestation of evil, otherwise we would all be locked up. While we all may be capable of such evil, the mere capacity to commit evil does not inculpate individuals and it correspondingly does not exculpate those who exercise that capacity.

Labels: David Chandler, duch

By Karlia Lykourgou, LLB Law Student 2010, University of Leeds, Santa Clara Summer Programme, Legal Associate for the Documentation Centre of Cambodia
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The Trial Chamber for the prosecution of Kaing Guek Eav (alias Duch) was extremely busy today as a new witness, Chheam Soeur, delivered significant testimony alleging that a western prisoner was burned alive at S-21. The Trial Chamber also deliberated further on the appropriateness of introducing witness interviews conducted by the Office of Co- Investigating Judges (OCIJ) instead of having witnesses physically present for their testimony in the courtroom.

The Fate of Western Detainees at S-21

The morning session began with questioning from the judges, largely led by Judge Ya Sokhan. Although he has not been the most loquacious of judges on the bench to date, his questions were concise and relevant when determining the witness’ background and duties at S-21.

Chheam Soeur was originally forced to join the Khmer Rouge and fight Lon Nol’s government as a child soldier. After 1975 he was taught military techniques in order to fight the Vietnamese. He was later assigned to guard the perimeter of S-21 and was unable to say how long he worked there. He said that by the time the Vietnamese invaded in 1979, he was planting rice at Pre Sar.

In the course of his time guarding S-21, the witness described having seen a Westerner burned alive. According to Chheam Soeur, he once saw a white man with brown hair brought into the grounds of S-21 by the guards, made to sit down, and then car tires were placed on top of him and set alight. The Chamber later clarified that Chheam Soeur believed the prisoner to have been burned alive.

The details surrounding this incident were somewhat difficult to obtain as the judges, the civil parties, and the Defense attempted to ascertain at what time this incident occurred and the surrounding circumstances. There were some translation issues which contributed to the difficulty in understanding the witness. It was evident that he was not comfortable in front of the Chamber.

Chheam Soeur frowned constantly and directed his eyes to the ground while giving mostly short answers. He unexpectedly responded to a Defense question saying, “I don’t want to talk anymore.” This spurred President Nil Nonn to try and ascertain the source of the victim’s discomfort. He asked if Chheam Soeur was still afraid of S-21 or Duch, to which the witness replied in the negative. Finally the President asked if the witness was frightened of the judges, to which Chheam Soeur paused and replied, “Yes, a little!”

Duch was given the opportunity to respond to the testimony of Chheam Soeur and stated that he had been looking forward to it. Duch suggested that the witness was mistaken in his testimony because although he admitted ordering that the western prisoners be killed and their bodies burned, he did not order that they should be burned alive. “No one would have dared disobey.” Duch’s perspective added an interesting angle to Chheam Soeur’s earlier assertion that he did not hear screaming and he did not stay long to watch the fire, but returned after his shift to see parts of the burned body.

Victims Unit Press Meeting

During the lunch recess, Helen Jarvis, Head of the Victims Unit, held her first press meeting since her appointment, and was joined by the Unit’s Outreach Co-ordinator. The two outlined the recent developments of the Victims Unit and their plans for the coming months, describing them as “ambitious.” They stated that they hoped to work in partnership with other departments wherever possible and also pledged to continue keeping the civil parties involved in court proceedings and to provide greater contact between civil parties and their legal representatives. They also mentioned plans to create forums to allow victims and civil parties to express their views and complaints regarding the trial proceedings.

Despite the extensive list of plans and reforms that the Victims Unit outlined in the meeting, it was the controversy regarding Helen Jarvis’ appointment that raised the first questions. Ms Jarvis appeared visibly irritated and refused to answer, stating that this meeting was “about the Victims Unit.”

Co-Defense Council Makes A Stand Over Witness Transcripts

The Trial Chamber continued with its new policy of reading out witness interview transcripts as a means of introducing the information into evidence without the need for witness questioning. The system adopted yesterday of providing the parties the opportunity to assert their support or object to the testimony once the Graffier has read it orally ran into difficulty immediately.

Upon being asked for the Defense’s support or objection to the witness testimony Co- Defense Counsel François Roux launched into a tirade against the court’s wasting of time and the failure of the recent witness testimony to contribute any new information to the case. He drew attention to the fact that Duch has admitted his guilt and that, “If this was a common law system, we would have finished,” also noting that if the trial were following a civil system, it also would have been completed by now.

In light of this, Mr Roux referred to Internal Rule 85 which prohibits “proceedings that unnecessarily delay the trial and are not conducive to ascertaining the truth.” Forced to respond to the witness transcript at hand, Mr. Roux registered his constant objection to the testimony and other testimony to follow on the grounds that it failed to introduce new evidence and perpetuated the trial beyond the bounds of necessity.

The Prosecution and the civil parties were both in disagreement with the Defense on this issue. The Prosecution stated that the issues of witness selection and trial management had already been addressed in numerous trial management meetings and were therefore inappropriate for continued discussion.

As a compromise, Deputy Co- Prosecutor Anees Ahmed suggested that a summary be prepared of each witness testimony rather than presentation of the full transcript, which the Defense accepted. However, this procedure was acceptable only in relation to new evidence that the Prosecution sought to admit.

The Chamber adjourned for a break to address the matter but came back with no decisive course of action. Instead, the presentation of witness transcripts continued as before and the Defense took their second opportunity to address the court to express their dissatisfaction with the whole affair. The Defense criticized the inconsistency of the different witness transcripts on certain issues and asked the OCIJ “to tell us which is the truth.”

This is certainly not the last tussle the court will experience over witness interview transcripts.

Labels: Chheam Soeur, duch, Helen Jarvis

By Karlia Lykourgou, Legal Associate for the Documentation Centre of Cambodia, LLB Law Student 2010, University of Leeds, Santa Clara Summer Programme
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Today, during the trial of prison chief Kaing Guek Eav (alias Duch), the Trial Chamber finished its questioning of Lach Mean, former interrogator and prison guard at S-21, and made further progress in its adoption of written witness evidence in lieu of oral testimony as a means of expediting trial procedures.

Inconsistent Testimony

The Chamber came into session slowly with visitors receiving a crude introduction to the sometimes tedious and administrative nature of justice. Once the questions were firmly underway it became apparent that Lach Mean, the witness, was not going to be forthcoming with information relating to his previous testimony. All three of the parties questioning him repeatedly introduced statements that he had made in previous interviews but which he often was unable to verify.

Lach Mean was asked about his role at S-21 and his interrogation of prisoners there. He responded that he was taught how to handle unresponsive prisoners and their weaker points, but denied that he had ever used violence in an interrogation. He stated that he had “no right” to beat up or torture prisoners and only threatened or scolded them instead. Such assertions were oddly juxtaposed with previous statements he had made in which he alleged that if a senior officer was unable to elicit a confession from a prisoner, the prisoner would be sent to him and he or she would confess immediately. Lach Mean denied ever having made such a statement and stood by his previous claim that he had interrogated only four prisoners “at most.”

Sympathy for the Guards and the “Boredom” of S-21

The witness, contradicting himself at times, offered little information about the treatment of the prisoners. Instead, he focused on the difficulties faced by the guards. The Chamber was visibly interested in the witness’ recollection of a fellow guard named Douch who raped a female prisoner, then became frightened of punishment and attempted to jump to his death, only to land on the electric fence and be carried away still alive. Lach Mean remained impassive as he discussed the actual suicide of a prisoner who grabbed a guard’s gun and shot himself. The main moral that he seemed to have drawn from that story was that guards should take better care of their weapons.

The Defense Counsel’s questioning was characteristically forceful but especially on point today as he posed Lach Mean questions about his attitude towards S-21. When asked if he enjoyed his work as a guard and an interrogator, Lach Mean stated that it was difficult to say, as his job was boring, there was no freedom to move around, they had to work very hard, and they lived in fear of making a mistake. Defense Counsel François Roux pushed further on the point about his boredom, asking if he knew how many people died at S-21. Lach Mean referred back to the guards again. He said that all he knew was that his chiefs disappeared. He did not know anything about the prisoners and had he had not attempted to find out. Asked if he regretted his time at S-21, Lach Mean stated that he did because it was horrendous and exhausting. The long hours meant he lost touch with friends and family. He did not know where they were sent.


Duch’s Role

During Lach Mean’s testimony defendant Duch sat alert and watchful as usual. But as the camera zoomed in on him at one point, he appeared almost bemused by Lach Mean’s answers. The public gallery was two- thirds full and fairly active, audibly reacting to the sight of Duch and some of the Defense Counsel’s more piercing questions. When Duch rose at the end of the questioning, he once again proved his value by bringing to the Chamber’s attention a list of prison guards from S-21, which included Lach Mean’s name. Duch then proceeded to read out the names and details of three prisoners that Lach Mean had interrogated, including one female detainee. This was a significant detail as Lach Mean had repeatedly denied ever interrogated any female prisoners.


Witness Statements Introduced in Lieu of Oral Testimony

The afternoon session saw the Chamber implement expediting measures with the inclusion of witness testimony into evidence pursuant to the Graffier’s oral presentation. The transcript of the witness’ interviews with the Office of Co- Investigating Judges was considered sufficiently reliable, evincing the need for the witnesses to be present to testify. This approach was not as interesting as live testimony, but it was certainly much faster as three witness transcripts were read out in a single afternoon.

At the end of the first witnesses’ testimony, which only took 25 minutes to read out, Prosecution Co-Counsel, Anees Ahmed, raised a procedural point relating to Internal Rule 87.2. This stipulates the requirement that “any decision made by the Chamber is to be based on evidence that has been put before the Chamber and subjected to examination.” This led to the adoption of an approach where the witness transcript was first read out and then the parties variously asserted their support or their objection. The Defense expressed their desire to permit the Accused to comment after each witness transcript. Their request was granted.

The Chamber ran into some difficulty with this new system after the lengthy testimony of Nhem En. Although the Chamber assured the parties that they had carefully chosen the statements to be presented via this method, the first half hour of Nhem En’s interview testimony was not even remotely related to the Accused and the activities of S-21. It was later described as fabricated fact by Duch. Furthermore, the Defense challenged the credibility of the witness, although not the introduction of the testimony itself, by accusing Nhem En of having courted journalists before the trial and attempting to sell paraphernalia from the Pol Pot era.

Certainly the new approach towards witness testimony is much faster and most likely will be utilized to a greater extent in the coming months and the trials beyond. However, there still remain procedural issues that the Chamber will need to address. The introduction of witness statements in lieu of oral testimony is a well established procedure in other internationalized courts. Although the ECCC is not strictly bound to follow such procedural precedent, if the Chamber wishes to continue using written witness testimony the judges may wish to introduce the procedure into the ECCC’s Internal Rules before they find themselves mired in ultimately unworkable ad hoc measures.

Labels: duch, Lach Mean

By Toni Holness, Legal Intern with the Documentation Center of Cambodia and Candidate for J.D./M.A.-Economics 2011, Temple University
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Sek Dan, former child medic at S-21, and Lach Mean, former prison guard and interrogator at S-21, appeared as witnesses before the tribunal today in the trial of prison chief Kaing Guek Eav (alias Duch) .

Sek Dan: The Figures Speak for Themselves
Sek Dan, a 48-year-old peasant farmer, had a rocky start this morning when he struggled to comprehend his right against self-incrimination and his obligation to speak truthfully to the tribunal. After a second reading of the rights and obligations, Mr. Sek remained visibly confused but the tribunal pushed forward with his testimony. This crucial misunderstanding resurfaced later in the testimony.

Sek testified that in 1978 he was taken to S-21 when he was 11 years old to work as a child medic, delivering medical supplies to prisoners and staff. When the Vietnamese arrived Sek managed to escape with other child medics. Although he did not know Duch well, Sek had seen the accused occasionally from afar. When asked about other supervisors of S-21, Sek testified that he knew of no others.

Given Sek’s experience as a medic at S-21, the judges seized the opportunity to investigate the health conditions of the S-21 prisoners. Sek described missing fingernails, torn ears, legions and sores on the backs, legs and arms of prisoners. Although multiple medications were administered, Rabbit Pellet medicine was most widely used. The content of the Rabbit Pellet medicine remains unclear. Sek testified that prisoners were medicated merely to sustain them for further interrogation.

Sek did not witness torture himself but deduced that the prisoners’ interrogation wounds were likely linked to the screaming he heard at the prison. Although he did not witness any medical experiments, Sek conceded that he was very young at the time and may have been unaware of such practices if they occurred.

According to Sek, the medics were not immune to the fear that permeated S-21. Medics who made errors were accused of being enemies and arrested. Sek said that Duch ordered these arrests. At least one medic hanged himself at S-21.

In response to Sek’s testimony, Duch reminded the court of his math expertise and astutely highlighted the discrepancy in Sek’s testimony: if Sek is now 48 years old, he must have been born in 1961 and therefore he must have been 17 years old when he arrived at S-21 in 1978, not 11 years old as he claimed. Duch highlighted other, less prominent, sources of doubt in Sek’s testimony.

In response to the age discrepancy, defense attorney Roux noted, “the figures speak for themselves.” However, neither the court nor attorneys for the parties asked if Sek was innumerate during his time at S-21. This would have been an important clarification in light of Sek’s admitted illiteracy during his time at S-21 and his conceded current trouble with calculating numbers.

Sek Dan’s Right against Self-Incrimination
Defense attorney Roux hit a stumbling block when Sek refused to answer some of his questions. Roux insisted that although Sek may refuse to answer self-incriminating questions, he should not refuse to answer innocuous questions.

The President supported Roux on this matter and reminded Sek that although he can “decline to answer any questions that [he] believe[s] would incriminate [him]” he is obligated to tell the truth. However, it became unclear, as the President and Roux urged Sek to answer questions, whether Sek’s right against self-incrimination applied to questions the court finds self-incriminating, or to questions that Sek himself deems self-incriminating. In any case, the witness’ counsel explained that Sek has very poor memory and was merely refusing to answer questions that appeared too complicated.

Lach Mean: Interrogator, not Torturer
After lunch, the tribunal resumed proceedings with the testimony of Lach Mean. Mr. Lach is a 52-year-old farmer. Lach spent time working at the PJ prison and subsequently worked as an internal guard and interrogator at S-21. Mr. Lach described truckloads of Vietnamese prisoners he saw brought to S-21 and blankets that were used to cover arrested S-21 staff-turned-prisoners.

Toward the end of his time at S-21, Lach was taught interrogation techniques. He learned by watching other interrogators and denied that written materials were used to guide interrogators. Interrogators were grouped into categories based on prisoner status: important prisoners, foreigners, female cadres and Westerners. Lach testified that ordinary interrogators were not permitted to use torture and physical violence against prisoners and he never witnessed torture being inflicted at S-21.

Lach also claimed that Duch never ordered him to torture, but Duch did contact him directly by telephone in response to an “incomplete” interrogation. Lach later testified that electricity was used to shock prisoners.

Among other issues, Duch expressed suspicion about Lach’s work as an S-21 interrogator because Duch claims that he would not have hired interrogators who were not under his direct supervision.

Lach’s testimony continues on Tuesday, August 4.

Labels: duch, Lach Mean, Sek Dan

July 28, 2009

By Spencer Cryder, Legal Intern with the Documentation Center of Cambodia and Candidate for J.D. 2010, Tulane University Law School

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Webcast of trial proceedings - Transcript
Part 1 Part 2 Part 3 Part 4
Part 5 Part 6 Part 7

Civil Party Lawyer Silke Studzinsky began the morning by claiming that the forty minutes allotted to the civil parties to question the witness was insufficient. She requested that the Trail Chamber grant the civil parties an additional twenty minutes. The Trial Chamber rejected the request and maintained the time allocations previously established before the witness took the stand. The President noted that civil parties must allocate the forty minutes amongst the four groups and should avoid repetitive or irrelevant questions that waste time. President Nil Nonn then proceeded to continue the questioning of Mr. Sous Thy, a former mid-level cadre who served as general staff under the Accused Person, Kaing Guek Eav (alias Duch). Sous had begun testifying on July 27. At S-21, Sous kept lists of incoming and outgoing prisoners, documented prisoner biographies, and managed cell assignments.

Daily Operations of S-21 – Turn No Prisoner Away, Smash All Upon Departure

The morning’s questioning of Sous by the President, Judge Cartwright, and Judge Lavergne, provided a great deal of information on the daily functioning of S-21, notwithstanding Sous’s consistent claims that he focused only on his assigned duties and therefore had limited knowledge of S-21 in general. In terms of incoming prisoners, Sous testified that the number and frequency of the prisoners received at S-21 varied daily. However, S-21 never turned away an incoming truck; room could always be made at S-21 for more prisoners. Upon arrival, S-21 personnel, dressed entirely in black which was the required dress code for S-21 staff and guards, stripped prisoners to their underpants. Sous stated that he never directly received the incoming prisoner documents, but instead received them from his superior, Comrade Hor.

For outgoing prisoners, after Sous received a list of names from a superior, guards would remove the selected prisoners to the gate of S-21. At the exit, Sous would verify the prisoners’ names over the course of an hour, have them loaded onto a truck around 4 p.m., and then have the prisoners “smashed” at Choeung Ek. Children were not taken to be smashed alongside adults. The time and place of the disposal of children was outside of Sous’s knowledge; he knew only that children came to S-21 and were not documented upon arrival. When asked, Sous would not even proffer an estimate as to how many people were killed at Choeung Ek. Sous claimed that he worked “24 hours a day,” and that his substantial workload precluded him from calculating seemingly simple figures, such as the total number of deaths in a year or a month, even though he had the lists of those executed.

Sous claimed that the staff at S-21 “lived in the dark.” Because of this, they did not know in advance that the Vietnamese were approaching in early January 1979. No plan to destroy documents existed. When asked about prisoners left at S-21 on January 6 or 7, 1979, Sous stated that all detainees were ordered smashed except for those at the special prison or those detainees working at S-21. However, he added the caveat that those decisions and that level of knowledge were beyond his responsibility. Sous gave a similar response when asked about the condition of detainees at S-21. He stated bluntly that medics were responsible for the health of detainees, it was not his business, and that he focused only on his work. Even when Sous verified the names of the prisoners as they waited at the exit of S-21 – blindfolded and hands bound – he testified that he noticed little about their physical appearance other than that they appeared “weak.” Instead of observing the prisoners, he listened only for a confirmation as he called out names. He added that no prisoner waiting for transport was ever too ill to vocally verify his or her name.

Sous stated that Duch authorized the movement of everyone that came in or out of S-21. The Office of the Co-Prosecutors (OCP) explored the issue of authorization further, inquiring about the drawing of prisoners’ blood. Sous stated that the medic would first make a request to Comrade Hor. Then Hor would seek authorization from Duch. Only after receiving Duch’s authorization could the medic draw blood from a prisoner. Sous also testified that Duch sometimes visited the workshop at S-21 housing the painter and sculptor. On occasion Duch visited S-21 staff in their offices.

Contradictory Testimony, Fragmented Questioning

The OCP spent the latter half of the morning trying to elicit responses that matched Sous’s previous statements taken by the Office of the Co-Investigating Judges (OCIJ). Sous neither confirmed nor denied the majority of statements, but instead he answered ambiguously, adding that it was either not his responsibility or that he was not assigned to know such things.

The four civil party groups followed a similar approach, consistently attempting to have Sous confirm or deny statements given to the OCIJ. More notably, the civil parties resorted to their previous strategy of questioning the witness as individual groups, with each group being allotted ten minutes. Overall, this led to forty minutes of fragmented questioning focusing on specific victims, resulting in Sous repeatedly answering that he could not remember specific names or faces. When Civil Party Lawyer Silke Studzinsky ran out of time, she requested that the Trial Chamber receive documents that had yet to be addressed and have the judges subsequently question the witness about the document. While the Chamber noted that it would not put unasked questions by the parties before the witness, it would allow this document to be “put before” the Chamber. Judge Cartwright then proceeded to ask questions about this document, but nothing of relevance appeared to materialize. By questioning a witness on a document submitted by a civil party after their allotted time expired, the Chamber essentially allowed the civil party additional time, something the Chamber had expressly rejected at the beginning of the day. Only the questioning by Civil Party Group One appeared to elicit additional testimony of the witness. However, Group One’s questions merely established that Sous operated under a high level of fear, something that the Defense openly welcomed and had Sous reiterate during its own line of questioning.

“Did You Enjoy Working at S-21?”

Questioning of the witness by Defense counsel Kar Savuth garnered the greatest response of the day from the ECCC gallery. Some of the questions were borderline comical, resulting in smiles and laughter from both the Cambodians and foreigners in attendance. Sous responded to the first such question, “Did you like your work?” in the negative, stating that he did not like it one bit, but that he had to do it because staff could not object. The following question, “If you didn’t like your work why didn’t you leave?” left everyone in attendance grinning, and Sous responding, “Where would I go? If I was absent for five minutes it would be noticed!” Finally, Savuth finished the line of questioning with, “Did all of the staff at S-21 hate their job, but have no where to go?” Sous responded that all of the S-21 staff disliked the regime, but had little, if any, recourse. In hindsight, the questioning appeared to serve Duch’s case quite well. Because Sous was frightened to death of his superior at S-21, and his superior was frightened to death of his superior, Duch, it might follow that Duch was frightened to death of his superiors, the upper echelon. Sous stated that all actions occurred due to the upper echelon and whatever the order, people followed through. If one disobeyed, he or she knew that the punishment would be swift and severe.

Labels: duch, Sous Thy

July 27, 2009

By Charles Jackson, Legal Intern with the Documentation Center of Cambodia and Candidate for J.D. 2011, Northwestern University School of Law

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Part 1 Part 2 Part 3 Part 4
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Khmer:
Part 1 Part 2 Part 3 Part 4
Part 5 Part 6 Part 7 Part 8

Kork Sras, a former prison guard at Tuol Sleng prison (S-21), appeared before the court again today to share his experiences as a subordinate of the Accused Person, Kaing Guek Eav (alias Duch).

Visitors Demonstrate A Strong Reaction To Witness’s Testimony

As various parties questioned Kork, visitors in the public seating area were reminded of the difficulties associated with trying crimes that had occurred over three decades ago. When asked to give details concerning prison operations and the treatment of detainees, Kork insisted that his memory was not clear enough to offer the court any reliable testimony. Members of the audience vocalized their skepticism with murmurs of distrust on several occasions as Kork claimed he did not even remember major details, such as the name of his supervisor at S-21 and whether he helped bury a group of men after watching them be executed.

Aggravating the public audience further, Kork denied knowledge of some of the most horrific details that have been thoroughly documented by the court. For instance, Kork said that he never saw any women or children detainees, never saw any detainee groups removed from the prison, and never heard about executions taking place at Choeung Ek. After each denial, a noticeable groan was heard from the audience.

Judge Lavergne seemed to share the public’s skepticism, taking a moment to remind the witness of his duty to tell the truth. Lavergne then asked whether Kork was afraid of anything, indicating a suspicion that Kork was not being forthcoming due to a fear of prosecution or because he felt intimidated by Duch’s presence. Kork denied having any fear of testifying truthfully and reiterated the fact that his memory had simply faded.

The Civil Parties Change Their Questioning Procedures

Taking a hiatus from hearing testimony, the court addressed two separate requests made by the Co-Prosecution and Civil Party Lawyer Silke Studzinsky on Wednesday, July 22, 2009. On that day, Co-Prosecutor William Smith requested that the court disallow parties from putting questions to the Accused Person in the middle of a witness’s time on the stand. Studzinsky, due to her concerns with the 15-minute time limit for questioning previously imposed on civil parties, requested that civil parties be able to submit to the judges the questions they are unable to ask witnesses. The judges then can decide whether such questions should be asked. The court denied both requests, offering little explanation for rejecting Smith’s request, but clearly rejecting Studzinsky’s on the grounds that accepting it would lead to undesirable inefficiencies.

Despite the denial of both requests, the court still saw a noticeable change in procedures from the Civil Party Lawyers, who voluntarily began working as a single group during their questioning period. Previously, each group would ask witnesses their own questions, which often led to overlapping or repetitive questions. Today, the civil parties compiled all of their questions into one list and used a single lawyer to put those questions to the witness. This practice allowed the civil parties to combine their time and use it in a more efficient way. Additionally, it should help combat criticisms that the civil parties often cause unnecessary procedural delays.

The Court Introduces Its Next Witness

During the latter part of the day, the court introduced the next witness, Mr. Sous Thy, age 58. After joining the revolution as a militia fighter in 1971 and working in various military units for a couple years, Sous was assigned to work as a prison guard at S-21 in 1974. While there, Sous was responsible for keeping lists of incoming and outgoing prisoners, documenting prisoner biographies, and managing cell assignments. Sous stayed at S-21 until he heard the gunfire and tanks of approaching Vietnamese forces on January 7, 1979.

In contrast to Kork’s seemingly evasive testimony, Sous appeared very forthcoming with his recollections of S-21 operations. Responding to questions from President Nil Nonn, Sous gave a detailed explanation of the process for handling incoming and outgoing prisoners at S-21.

When prisoners first arrived, Sous recorded their name, composed a brief biography of each person, and then assigned them to one of the empty cells. Afterwards, he sent the prisoners to the photography room, where they had a picture taken for recordkeeping purposes. The prisoners then were blindfolded, had their hands tied together, and were taken to their cells. When asked whether children’s names and biographies were recorded, Sous said no, explaining that children usually arrived with their parents and were executed shortly after the parents were put into a cell.

When interrogations were to be carried out, Sous testified that a list of prisoner names first would be delivered to him so he could look up each prisoner and note his or her location in the prison. This list was then given to guards to retrieve the prisoner.

Lastly, when prisoners were to be taken out of the prison for execution, Sous again would receive a list of names, record prisoner locations, and give that list to the guards who removed the prisoners from their cells. Prisoners were then brought outside near the exit gate of S-21. There, Sous would check once more to ensure that each prisoner on the execution list was accounted for before the prisoners were loaded on a truck and taken to Choeung Ek to be killed.

After President Nil Nonn finished questioning the witness, the court adjourned for the day. Sous will continue testifying tomorrow, July 28, 2009.

Labels: duch, Kork Sras, Sous Thy

July 22, 2009

By Charles Jackson, Legal Intern with the Documentation Center of Cambodia and Candidate for J.D. 2011, Northwestern University School of Law

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Part 1 Part 2 Part 3 Part 4
Part 5 Part 6 Part 7

- Khmer:
Part 1 Part 2 Part 3 Part 4 Part 5
Part 6 Part 7 Part 8 Part 9

Prak Khan, a former interrogator at Tuol Sleng prison (S-21), returned to the witness stand today and continued to provide details about the operations of the prison, which was run by the Accused Person, Kaing Guek Eav (alias Duch).

The Co-Prosecutors seemed to recognize that the witness’s credibility may have been damaged by inconsistent statements given the day before. They used their time to clarify details of Prak’s testimony. Co-Prosecutor Tan Senarong began by introducing a map of S-21 and asking the witness to show the court specific locations mentioned yesterday, including where interrogations took place, where blood was drawn from prisoners, and where he saw a baby executed by a superior officer. At one point, Co-Prosecutor William Smith introduced a series of film clips from the documentary “S-21: The Khmer Rouge Killing Machine”, which highlighted an interview Prak Khan had given previously about his experiences at S-21. To help direct the witness’s testimony, Smith played each clip and then asked Prak if his past statements were accurate. This tactic proved beneficial, as the prosecution was able to develop a more consistent understanding of Prak’s testimony. However, it seemed unclear whether Prak actually remembered the events he testified to or whether he was confirming the statements to avoid appearing untruthful.

After the Co-Prosecutors finished, Civil Party Lawyers began a line of questioning that attempted to portray Duch as a leader who maintained absolute control over the actions of his subordinates. In response to their questions, Prak discussed how he was only allowed access to the dining hall, prison, and interrogation rooms at S-21 because of Duch’s strict rules limiting the staff to the areas where they worked. Prak also said that, in the three days prior to the Vietnamese entering Phnom Penh in January 1979, the interrogators did not receive any orders from Duch and therefore spent their days “sitting around doing nothing”.

However, Civil Party Lawyer Martine Jacquin may have undermined the prosecution’s efforts when she chose to use her time with the witness to question Duch instead. When asked about Prak’s statements, Duch attacked the witness, saying that some of the details were “fabricated”. President Nil Nonn then stepped in and warned Duch not to “pressure the witness” and to “behave properly”.

In the second half of the day’s proceedings, the defense counsel sought to diminish the witness’s credibility by attacking Prak’s basis of knowledge concerning his testimony. In response to questions from Defense Council Francois Roux, the witness admitted that some of the details in his testimony came from watching previous witnesses testify at Duch’s trial. Additionally, Prak admitted that he had been hospitalized from 1978 until the Vietnamese liberation in 1979, and, therefore had not personally witnessed anything at S-21 during that time.

The defense used the remainder of its time to refute the notion that S-21 staff strictly adhered to Duch’s orders. Roux introduced another S-21 interrogator’s notes from one of Duch’s training sessions that stated interrogators should rely on “political pressure” first and only use torture as a secondary measure. Roux then contrasted this with statements made by the witness that indicated torture was the primary method of interrogation used by the staff. In response, the witness confirmed that Duch in fact had instructed guards to rely first on “political pressure” and propaganda.

Procedural Dispute Interrupts the Trial Chamber

When the defense concluded, the court introduced the next witness, former S-21 prison guard Kork Sras. In response to questions from President Nil Nonn and Judge Thou Mony, Kork briefly outlined his experiences during the Khmer Rouge period. Kork explained that he first joined the revolution in 1973 as a member of Division 12. After the Khmer Rouge took control of Phnom Penh, he was moved to Ta Kamao prison and later transferred to S-21 to work as a guard.

Kork’s testimony, however, was suspended when Co-Prosecutor William Smith and Civil Party Lawyer Silke Studzinsky both made requests to the court concerning the procedures for questioning witnesses. Smith addressed the issue of whether parties to the court could question the accused in the middle of questioning a witness and argued that such procedures allow for the accused to intimidate and undermine the witness. Smith’s request was in response to the decision allowing Civil Party Lawyer Martine Jacquin to question Duch in the middle of Prak Khan’s testimony earlier in the day. Smith requested that the court alter their procedures to prevent such practices in the future. In response, the defense argued the prosecution was “afraid of an interactive dialogue”.

After the prosecution’s request, Studzinsky addressed the limited time allotted to civil parties for questioning and requested that the civil parties be able to submit any questions they are unable to ask a witness to the judges, who could then consider whether such questions should be put to the witness. The defense strongly objected, with Roux accusing Studzinsky of attempting to circumvent the judges’ decision to limit the civil parties’ time.

The court agreed to consider both requests and issue decisions on Monday, July 27, 2009.

Labels: duch, Kork Sras, Prat Khan

July 21, 2009

By Charles Jackson, Legal Intern with the Documentation Center of Cambodia and Candidate for J.D. 2011, Northwestern University School of Law


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Trial Footage - Transcript

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Part 1 Part 2 Part 3 (currently unavailable)
Part 4 Part 5 Part 6
 
Khmer
Part 1 Part 2 Part 3
Part 4 Part 5 Part 6

Former prison guard Prak Khan was introduced as the Trial Chamber’s next witness today in the trial of prison chief Kaing Guek Eav (alias Duch). With questions from Judges Ya Sokhan, Silvia Cartwright, and Jean-Marc Lavergne, the Trial Chamber examined details of Prak’s association with the Khmer Rouge from the time he joined the revolution until the Vietnamese liberation in 1979.


Prak Khan, age 57, initially joined the agricultural section of District 56 at Ta Kamao in 1972. Shortly thereafter he was transferred to the military unit and was moved to Prey Sar, where he helped build dykes, dig canals, and plant rice. A couple months later he was transferred once more, this time to become a guard at S-21, also known as Tuol Sleng prison.

When he first arrived at S-21, Prak was placed with a group of 10 to 12 armed guards under the supervision of Him Huy and Comrade Hor. His group was responsible for monitoring traffic to and from the compound. While working 12-hour shifts near the gate to enter the prison compound, Prak testified that he saw truckloads of victims being brought in. Larger trucks carried 20 to 30 people, while smaller ones carried around ten. And “enemies” were brought in along with their families, so trucks often carried men, women, and children. Some came in handcuffs and were brought directly to the prison, while others had not yet been formally arrested. They were brought to a house where Him Huy and guards under his command would arrest, handcuff, and blindfold the prisoners, then reload them onto the trucks and take them into the prison. Prak also said that he witnessed truckloads of detainees being taken out of the prison at about the same rate as he saw prisoners being taken in, giving one the impression that S-21 functioned with assembly-line efficiency.

Prak went on to discuss administrative aspects of prisoner detainment. After being arrested, prisoners were divided into categories by Duch, according to their importance. Normal prisoners were housed inside Tuol Sleng, while “important” prisoners were kept at a “special” prison, located in a house outside Tuol Sleng’s walls. When families arrived at the prison, they were separated. The men and women were housed in different areas and the young children were immediately taken for extermination. On one occasion, Prak said his superior took a seven or eight month-old child from the mother’s arms and threw it from an upper level of the prison, killing the child. Prak was then ordered to bury the baby.

In late 1976, after working as a guard outside Tuol Sleng, Prak was transferred to the interrogation unit of S-21. Discussing the way he learned how to perform his new role, Prak said that there were no formal classes or lessons on interrogation when he started, but, new recruits were assigned to a more experienced interrogator to apprentice for a month or two, observing and learning how to extract confessions from prisoners. However, after some time, Prak said Duch began training sessions at his “political school” where Duch instructed the interrogators on political ideology, methods of interrogation, and non-lethal torture, including electrocution, pushing needles under fingernails, whipping, and beating. Prak also said that Duch taught the guards methods of humiliation, instructing them to force prisoners to eat their own excrement and worship images of dogs.

Next, Prak answered questions about the logistical details of carrying out interrogations. He explained that the interrogation unit, headed by Duch and second-in-command, Brother Hor, was divided among three groups: hot, cold, and chewing. The cold group focused on prisoners thought to be less important and only applied high-pressure political questionings, while the hot group used torture to extract confessions from those prisoners thought to have more important information. If, after being interrogated by the hot group, a prisoner still had not made a confession, the chewing group, of which Prak was a member, would be ordered to apply methods of torture and humiliation to accomplish that task.

For any particular interrogation, Prak said he first would receive orders from Duch via phone or written message instructing him to interrogate a particular person. Prak would then research where that prisoner was being held, send a request to have that prisoner brought to him, and upon arrival walk the prisoner to a designated interrogation room. Afterward, the prisoner would be returned to his or her cell until the following day when interrogations would continue.

Prak also described general prison conditions at S-21, giving details similar or identical to those given by other witnesses. While he never saw conditions at the “special prison,” he said that the majority of people were held in either individual cells or common rooms in Buildings B, C, and D inside the walls of Tuol Sleng. Individual cells were used for prisoners who were actively being interrogated, while the common rooms were used to house the rest. Inmates were housed in individual rooms. Men and women were kept in separate common rooms and under different conditions. Prak described the male common rooms as each having two rows of nine people laying down, shackled to a long bar attached to the floor, while the women were left unshackled and free to move around, with their cell door locked from the outside.

To provide for basic needs, the prisoners were fed small rations of gruel, given an empty ammunition box to use as a toilet, and hosed down by the guards every couple of days.

Although the witness spent much of the morning providing details corroborated by past testimony before the court, in the latter half of the day’s session, Judges Silvia Cartwright and Jean-Marc Lavergne both expressed notable skepticism about the witness’s credibility. Pointing out some contradictory or inconsistent statements made by the witness, Judge Cartwright noted that Prak had previously stated he saw pregnant women detained at S-21, while today he claimed the opposite. Further noting contradictory statements, Judge Lavergne pointed out that Prak told the investigating judges that Duch was sometimes present during interrogations, while today he told the Trial Chamber that Duch was not present. The most harmful testimony to the prosecution seemed to come when Judge Cartwright asked whether the witness clearly remembered the testimony he gave, or whether he was partially relying on what people have told him more recently. The witness answered in the affirmative. While the ECCC may not have a strict rule against hearsay, such a confession, in light of the contradictory statements, seemed to undermine the witness’s entire testimony.

Labels: duch, Prat Khan

July 20, 2009

By Charles Jackson, Legal Intern with the Documentation Center of Cambodia and Candidate for J.D. 2011, Northwestern University School of Law

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Part 4 Part 5 Part 6

The ECCC’s ability to contribute toward education and reconciliation was apparent today as hundreds of students and adults were welcomed as guests of the court. Before proceedings began, ECCC representatives also took time to explain the basic mechanics of the court to the crowd, so that they might better understand what they were about to witness.

Trial proceedings picked up with more testimony from Him Huy, a former prison guard at S-21 who had been under the command of the accused, Kaing Guek Eav (alias Duch), during the Khmer Rouge era. Before any questions were asked, the witness was reminded by the court, after a request by the prosecution, that he had the right to refuse answering any questions that were self-incriminating.

The day began with questions from the prosecution focused on daily operations at S-21. While working at the prison, Him Huy had the key responsibility to assist with the reception and processing of incoming prisoners. When asked where his instructions came from, the witness testified that he took orders directly from his superior, Brother Hor, but that Duch made all of the decisions about who was to be arrested, interrogated, and executed. The witness also gave testimony that seemed to indicate Duch may have helped develop propaganda to fuel support for the Khmer Rouge regime. Regarding the treatment of Vietnamese prisoners, Him Huy testified that he had seen many of these prisoners forced to dress in their soldier uniforms and photographed while standing in the street, and that their confessions from interrogations were publically broadcast on the radio. Much of this testimony proved beneficial to the prosecution, which has sought to portray Duch's role in the Khmer Rouge regime as an active instigator of war crimes and crimes against humanity.

The Deputy Co-Prosecutor, William Smith, also asked a series of questions related to the relationship between Duch and the staff at S-21. Him Huy described Duch’s management style as “meticulous and firm,” saying Duch decided everything and the entire staff strictly obeyed him. The witness explained that the S-21 staff felt threatened by Duch and obeyed him as best they could for fear of their lives. The witness went on to say that he was so frightened he did not even think it was safe to get married because it increased the likelihood of dying. He said that when one person was accused of being an enemy, he and his entire family typically were killed, so he thought it was safer to be alone. He finished by saying that, even today in court, Duch’s presence scares him.

After the Co-Prosecutors concluded, it was the Civil Party’s turn to put questions to the witness. Alain Werner from Civil Party Group 1 began with a series of questions further delving into Duch’s involvement with discretionary decision-making at S-21. But the focus quickly shifted away from Duch and onto the witness’s criminal culpability when Silke Studzinsky, with Group 2, began asking him about his own involvement with the tortures and executions. Trying to emphasize the human element of the testimony, Studzinsky began her questions by reminding the witness that victims were in the court and asked him to remember his responsibility to contribute toward reconciliation.

Lawyers from Groups 2 and 3 solicited further descriptions of detainee treatment from the witness, who affirmed that prisoners were housed and tortured in their underwear and children were killed along with their parents. Hong Kim Suon with Group 4 concluded the Civil Party’s time by framing the witness as a docile subordinate of Duch implementing his orders. When asked how he received his instructions for incoming detainees, Him Huy said that he would receive a list of names that Duch put together. When asked why he implemented orders so blindly, Him Huy reiterated the fear that Duch imposed on S-21, saying that one mistake would have cost him his life.

Before the defense began their questioning, Duch gave a statement concerning his response to the witness’s testimony. Although equivocal, Duch said that Him Huy’s testimony was “basically true…although there are some small omissions…but they don’t matter”. Most significantly, Duch accepted responsibility by saying that all of Him Huy’s crimes resulted from following Duch’s orders.

Despite the gesture by Duch to assume superior responsibility, the defense spent their time with the witness trying to frame an analogy between the witness and the accused. In response to defense counsel Roux’s questioning, the witness testified to being in charge of 11 to 12 people and that, in his role as a superior in that group, he implemented orders to transport detainees from S-21 to Choeung Ek for execution. Roux finished by asking the witness if he agreed that the Khmer Rouge movement was so successful because everyone was blindly implementing orders from the Central Committee. Him Huy agreed. Although Roux did not say so, his questioning probably left the court pondering the circumstances of both the witness (Him Huy) and the defendant (Duch). By showing that both Him Huy and Duch regularly acted as intermediaries, taking orders from superiors and implementing them through subordinates, Roux left one wondering why the two held such different roles in the eyes of the court and the public.

Labels: duch, Him Huy

July 16, 2009

By Laura MacDonald, Member of the New York Bar and Consultant to the Center for International Human Rights, Northwestern University School of Law

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Part 1 Part 2 Part 3 Part 4
Part 5 Part 6 Part 7



54 year old Him Huy returned to the witness stand today and testified in great detail about operations at Tuol Sleng prison (S-21) and the killing fields at Choeung Ek, both secret facilities run by the Accused Person, Kaing Guek Eav (alias Duch). Given that Duch claims limited knowledge of day-to-day operations and the other witnesses were confined to very small areas, it was refreshing to hear the accounts of an observant guard who had various responsibilities in various locations. Him will continue his testimony on Monday.

Him Never Exercised His Right to Remain Silent, But His Lawyer Was Silent All Day

Yesterday, Him only appeared long enough to request time to consult his lawyer regarding his right against self-incrimination. In light of this, it is curious that during nearly six hours of questioning today, he never exercised his right to remain silent and admitted to executing at least one person at Choeung Ek.

Him’s lawyer, assigned to him by the ECCC’s Witness and Expert Support Unit, did not speak during today’s proceedings, although it is still unclear if he is entitled to speak. According to ECCC Public Affairs, the lawyer is advising, rather than representing, his client on the limited issue of self-incrimination. This morning, President Nil Nonn asked Him if he would like his lawyer to remain in the courtroom, where he was already seated, or if he would like him to wait outside. Him said he wished his lawyer to remain in the courtroom. The President then instructed Him that he should only seek his lawyer’s advice on self-incrimination issues and answer all other questions on his own.

Operations In and Around S-21

In 1972 or 1973, Him was forced to join the military and, after being trained, was transferred from unit to unit. On April 17, 1975, Him’s unit helped the Khmer Rouge “liberate” Phnom Penh. After that, he worked in the rice fields under Comrade Hor, Duch’s eventual deputy, who recruited him to work at S-21.

Him’s “defense section” unit was stationed in a small building just outside the S-21 complex to guard the entrance and receive prisoners as they arrived. Him’s unit also carried out arrests, picked up previously arrested prisoners, and transported prisoners to Choeung Ek. When none of these duties called, they raised poultry. Him started out as an ordinary guard and was later promoted to chief of his unit after some of his colleagues disappeared. As chief, he patrolled the S-21 grounds and buildings to ensure guards were discharging their duties vigilantly.

Him’s unit received orders from Duch through Hor to carry out arrests in Phnom Penh. Him would go to the Phnom Penh Central Market at night time to arrest enemies lured there by Khmer Rouge cadre under false pretenses. Him’s unit also went out to the countryside to transport prisoners that had been arrested by their respective military unit or government ministry to S-21. On two occasions, Duch ordered Him to transport about 15 uniformed Vietnamese soldiers to S-21. The “city messenger” also brought Cambodians who had just returned from abroad to S-21 under false pretenses and Him’s unit arrested them there.

When people were transported to S-21, they were shackled, blindfolded, handcuffed, and made to sit down in a truck. Prisoners were not allowed any freedom of movement to relieve themselves as that would increase the risk of escape. Travel in Cambodia at the time required permission papers and, on at least one occasion, Him was given such a letter from Hor signed by Duch’s superior, Son Sen.

Upon arrival at S-21, everyone passed through the small building just outside the compound gate. For those not yet arrested, Him’s unit brought the soon-to-be prisoners into the room, had them sit at a table, and then arrested them. Sometimes 50 or 60 prisoners arrived together, in which case only one prisoner was handled at a time. All prisoners were registered by name and photographed with a serial number before being passed off to another unit responsible for classifying the prisoner with regard to his importance and assigning him to a cell accordingly. At this stage, some of the least important prisoners were sent to Prey Sar re-education camp (S-24) instead of S-21.

With regard to detention conditions, Him confirmed that prisoners were bathed by guards who sprayed hoses into the cells. This technique was used because it did not create a risk of escape. Him confirmed the food rations were inadequate and prisoners were “very thin,” explaining that only one and a half ladles of gruel were given to prisoners twice daily. He said that women were considered too weak to revolt, so they were kept unshackled with free hands in a large locked room along with their young children.

Him never personally observed an interrogation session, but explained that all prisoners were detained, interrogated, tortured, and killed. He said many prisoners died in their cells from torture wounds and were buried subsequently in the S-21 compound. Those who survived were executed one or two weeks after completing their interrogation.

According to Him, the purged S-21 staff, important prisoners, Vietnamese POWs, foreigners, and children were all executed near the S-21 compound, rather than at Choeung Ek. They were removed from their cells at night time, one by one, after being told they were being taken to a new home. They were walked to the edge of a pit where they were forced to kneel down. Next, guards used oxcart axles to strike the backs of prisoners’ necks before using knives to slash their throats. Prisoners were then stripped of any remaining clothing and their handcuffs were removed for future use. Prisoners were kicked into the pits and buried immediately.

As for numbers, Him recalled three or four light-haired foreigners with big builds being burned with tires on a paved road after their execution near S-21. He said Duch could be correct that 345 Vietnamese were imprisoned at S-21 and opined they were all killed near the compound. Him guessed that 50 to 60 children between 1 and 8 years old were killed near the compound.

According to Duch, no one was ever released from S-21. Him confirmed this point generally, but stated he once saw a group of Thai prisoners released for reasons unknown to him.

Him explained that the ranks were purged heavily at S-21 with perhaps 200 arrested out of 400 staff. The majority of the S-21 staff came from Division 703. In 1977, many Division 703 cadres from the field were interrogated and their confessions implicated their former colleagues who had become S-21 staff. Him was not aware of what alleged offenses those people had committed and only knew that “people kept disappearing.” He said that sometimes guards who had committed minor offenses were sent to S-24 for re-education. Him explained that in his early days at S-21 he would roam freely and chat with colleagues, but after the purges started everyone was being monitored so movements and conversations were restricted.

How Executions Were Carried Out at Choeung Ek

Him provided the most detailed testimony to date on operations at Duch’s killing fields at Choeung Ek.

After being given a list of names by Hor, Him’s unit would remove those prisoners from their S-21 cells around 6:30 p.m. and walk them to a covered truck where they sat shackled and blindfolded for the thirty-minute ride. They were told they were going to a new home. Him was responsible for checking the 60 to100 prisoners’ names off the list before the 4X4 trucks and land rovers headed for Choeung Ek.

Upon arrival, the unit at Choeung Ek was ready to receive the prisoners. First, they switched on a generator to power ten fluorescent lights used to illuminate human targets in the dark. Prisoners were forced to wait in a concealed area beneath a big house. They were taken out one by one to the pits where the same execution procedure from S-21 was employed: oxcart axles were used to strike the backs of prisoners’ necks and then knives were used to slash their throats. Clothes and handcuffs were removed. Prisoners were kicked into the pits and buried immediately. Given the large number of prisoners and dark working conditions, “it took hours” to kill everyone, sometimes until 2 a.m. During this process, a man once escaped, but was later recaptured.

While Duch testified weeks ago that he only visited Choeung Ek once when forced by his superiors, Him testified that Duch visited Choeung Ek at least twice. On one occasion, Duch stayed until all the prisoners were executed. While Him previously told the co-investigating judges that Duch taught him execution techniques at a meeting, Him backed away from this crucial statement today, saying he now thinks it was Hor who gave the instructions. Moreover, Him previously told the co-investigating judges that Duch once specifically instructed him to execute a man. Him backed away from this statement as well, claiming that he was not sure if it was Duch or Hor, but it was definitely either Duch or Hor. Generating some solid courtroom drama, Judge Lavergne asked Duch to stand and asked Him, “Who is this?” Judge Lavergne inquired again, more forcefully, if it was Duch who ordered Him to execute a man. Him tried to justify his confusion by explaining it was dark at Choeung Ek and guards had to rush around to kill everyone by dawn.

S-24

In late 1978, Him was sent, along with two groups of men, to S-24 to work in the rice fields, dig canals, and build dams. From his brief testimony on the subject, it was unclear whether he was detained as a prisoner there or was simply working there. He claimed he slept normally at night and was not locked in his room. He was not told why he was sent there. Him remained at S-24 until the Vietnamese took Phnom Penh in January 1979.

Protective Measures Denied

The Trial Chamber announced its denial of witness KW10’s request for protective measures.

The Witness and Expert Support Unit (WESU) provided the Chamber with a confidential risk assessment and determined not to recommend protective measures because the witness, a former interrogator at S-21, is well known to the public and could be readily identified even if he testified in closed session. The Chamber agreed with WESU, noting that KW10 has made himself widely known to the public such that protective measures would not be effective. Moreover, his family, friends, and neighbors are already aware of his background.

Under Internal Rule 29, upon request or its own initiative, the Chamber may order the use of protective measures to protect witnesses “whose appearance before them is liable to place their life or health or that of their family members or close relatives in serious danger.” The Rules provide for such measures as proceeding in camera, using pseudonyms, and distorting a witness’s voice and appearance.

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