Crimesof War

By Thierry Cruvellier

“My name is Kaing Guek Eav. When I joined the revolution I used the name of Duch. I entered the revolution to liberate my own people, including my parents, my relatives, myself. That’s why I was compelled to accept the task. At that time, in that regime, I saw no other alternative to solve the matter except to respect the discipline of the party. Sometimes we have to do a job we do not like. I would like to emphasize that I am responsible for the crimes committed at S-21, especially the torture and execution of the people there. I would like to express my regret and my heartfelt sorrow and loss for all the crimes committed by the CPK [Communist Party of Kampuchea] from 1975 to 1979″.

Duch, the former director of Phnom Penh’s detention and torture centre S-21 (more widely known by the name Tuol Sleng) under the Khmer Rouge regime (1975-1979) was the first person to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid tribunal that has been operating since 2006. On 26 July 2010 he was convicted of crimes against humanity and war crimes and was sentenced to 30 years in prison, of which he has already served 11. In sentencing, the Trial Chamber noted significant mitigating factors that mandated the imposition of a 35-year term of imprisonment rather than one of life imprisonment. These factors included cooperation with the Court, his admission of responsibility, limited expressions of remorse, the coercive environment in Democratic Kampuchea, and the potential for rehabilitation. The Chamber granted the accused a 5-year reduction in compensation for his illegal detention prior to his transfer to the ECCC. The Chamber also highlighted a number of aggravating features; in particular, the gravity of the offences which were perpetrated against at least 12,272 victims over a prolonged period.

The face of Duch, 67, has furrowed handsomely with age. During the trial, listening intently to simultaneous interpretation, he would remain still for a few seconds, mouth half open, his eyes narrowed in concentration. In those moments, age seemed to weigh on him. From one day to the next, the skin on his face would shift from gaunt to fresh, eyes wide open or reduced to a mere dash. His look is intense and curiously misty, as much radiant as glazed. The finely drawn peaks of his eyebrows give his face an unnervingly inquisitorial air.

A former prison guard described him as “a serious and firm man, very meticulous”, a chain-smoker with whom he would not dare to make jokes but whom he once saw having a fit of the giggles.“Are you afraid of him today?” the guard was asked by one of the five judges.“No, I am not afraid of him”.When Duch’s trial started in March 2009, Co-Prosecutor Chea Leang said: “For 30 years, one and a half million victims of the CPK regime, also known as the Khmer Rouge, have been demanding justice for their suffering. S-21 formed an integral and indeed a vital part of a widespread and systematic attack on the entire population of Cambodia. This attack was the implementation of a plan that the CPK’s leadership agreed to and started implementing well before the inception of S-21. As a subordinate of this leadership, acting on their orders and in furtherance of those policies, the accused’s crimes were part of this attack. Some then and perhaps still now argue that the Khmer Rouge came to power with the best of intentions and that something went terribly wrong. But that is simply not true. From the very beginning, as evidenced by its policies in the zones it controlled before April 1975, the Khmer Rouge leadership was intent on ridding itself of its perceived enemies and placed little value in human rights or life itself. As one of its infamous slogans so chillingly foretold: ‘To keep you is no gain, to destroy you is no loss’”.

The Office of the Prosecutor acknowledged the accused’s cooperation with the court and his assistance in the investigations, as well as his expression of remorse and the fact that he had asked for forgiveness. But this acknowledgement was only ever half-hearted. The Prosecution team declared from the outset that Duch’s regrets were not genuine, his acceptance of facts incomplete, and his responsibility far more significant than he claimed. In their view, Duch was not just a “facilitator”, transmitting arrest orders given by the “upper echelon” and letting his subordinates decide who to torture and how. Instead, said the Prosecutor, it was Duch himself who made requests, operated, supervised, participated and gave orders. It was he who indicated who should be “smashed”.

“These were not acts of a man under duress but the choices of a devoted revolutionary”.

“My understanding is that the accused was very much an innovator,” said prosecution expert witness, Craig Etcheson. According to him, Duch was someone who developed and institutionalised the practice of making very detailed confessions over a long period of time. The lists of names of people denounced as enemies were then used to make new batteries of enemies, he said, which led to an “exponential growth in the number of enemies”.

“Did he have a choice?” asked international defence lawyer, François Roux.

“As I argued, one always has choices in life,” retorted Etcheson, perhaps a little too comfortably.

“And today he is still alive?” continued Roux, scathingly.

“Yes he is.”

“I forgot to tell you: I don’t like, and have never liked scapegoats,” Roux concluded.

The Duch trial was unique in the history of international justice in that a guilty plea evolved into a full trial (thanks to the civil law procedure that applies before the ECCC and that does not contemplate plea bargaining). At other international tribunals, a guilty plea concludes with an agreement between the prosecutor and the accused, reached after lengthy and confidential talks, and endorsed by a Trial Chamber in a one-day hearing. It has the benefit of judicial economy, but it has very little value to the public and in truth telling.

Never before in an international trial had the voice of a perpetrator been heard in so much detail. The accused reiterated his admission of about 85% of the alleged facts, and the prosecution tried, largely in vain, to bring solid evidence to support the remaining 15%.

The trial was eventful, peppered with moments of great intensity, emotion and human drama, with Duch a central factor. He appeared to be a remarkably complex character, intelligent, endowed with exceptional memory, well versed in human psychology and displaying great physical and mental resistance. The trial also helped provide a unique forum for public interest, debate, and general truth telling on the Khmer Rouge period in a country where such debate had long been avoided.

There were serious and legitimate concerns along the way about the possibility of the proceedings spiralling out of control. The ECCC works in a cumbersome linguistic environment and its design, involving complex power-sharing between Cambodians and internationals - and dogged by underlying political interference - seemed bound to fail. During the first three months, hearings seemed controlled more often by the accused than by anyone else. The two international judges tried their best to fulfil their duty without undermining the role of Presiding Judge Nil Nonn. Eventually, however, Nil Nonn rallied and took charge of the proceedings. His rule was sometimes abrupt, or confusing, but he eventually succeeded in asserting his authority, even if only in such simple ways as adhering to strict timekeeping.

In fact, one of the trial’s major shortcomings was the performance of the prosecution team. Over five and a half months, at least five international prosecutors took turns, all of whom but one did not really know the case file in detail, and only one had the level of experience usually required to be a senior trial attorney. As a result, the prosecution frequently looked weak, unfocused, or quite simply absent. In a trial where the accused acknowledged most facts, the consequences were limited. However that will not be the case in the second trial of the four most senior accused, due to start in mid-2011, in which strong and well experienced defence teams are determined to fight every bit of evidence.

Another cause for concern had been the way in which the participation of civil parties might unfold in court, and whether chaos was simply inevitable. In the beginning, there was open infighting among international lawyers representing different groups of victims, and there was neither strict control of the proceedings nor clear rules or understanding of the role of victims’ lawyers. Contrary to predictions, the full participation of victims in the trial did not result in chaos, despite the process being imperfect and time-consuming (not to mention frequently redundant and annoying). In fact, it arguably added a certain value to the trial of a kind that is said to be sorely lacking at other international tribunals. Civil parties ensured that an important and legitimate voice was heard, and facilitated a human, concrete understanding of the severe damage suffered by victims’ families.

Some 30,000 people each attended at least one day of trial. Groups of villagers and students were initially brought by NGOs. Then the ECCC Press and Public Affairs made a concerted effort to have the 500-seat courtroom filled every day. This was unprecedented in the history of international tribunals. It may have been more of a propaganda exercise than anything else, and the educative value of it may have been relative, but it did provide access to an exceptional event for an unexpected number of people from all over the country, including from former Khmer Rouge strongholds.

Facing unprepared prosecutors and messy civil party lawyers, the defence appeared highly competent and well organised. Duch and his lawyers dominated the debates throughout. At the opening of the trial, Cambodian defence lawyer Kar Savuth (who is also a legal adviser to Prime Minister Hun Sen, Cambodia’s strongman for twenty five years and a former Khmer Rouge member himself) made one of his fiery and sensational speeches. “What are the objectives of prosecuting Khmer Rouge leaders? There are three: to give justice to those who perished and to those who survived; to prevent such a regime to occur again in Cambodia; to preserve the sovereignty of the nation,” he said. “Who were the top leaders of Democratic Kampuchea? How many were they? It is only after [we have established this] that we can accept the legitimacy of such a trial. It is better not to prosecute anyone than to try just some of them,” he thundered.

At that point, most people decided to sit back and appreciate Kar Savuth’s entertaining cheekiness and flamboyant body language. At 76 years old, with a survival instinct tested under all contemporary Cambodian regimes (all bad ones) Kar Savuth has charisma and a cunning sense of drama. In common with several of his Cambodian peers, he also has a tendency to exaggerate, which leads people to listen only half seriously to his diatribe. After getting carried away he would actually regularly back off and suddenly resort to charming politeness.

“These prosecutions must be stopped!” he shouted before an amused audience. There were fourteen top leaders in the Pol Pot regime, he said, “and the name of Duch is not among them! If these fourteen people are not prosecuted, then it is a violation of the law [to prosecute Duch].” But when asked by the judges to explain himself, he immediately defused his own bomb. “These were only arguments for the Trial Chamber. I am not questioning the chamber’s jurisdiction. It was a mere commentary,” he said with a smile.

François Roux then calmly took the stand and headed the Defence ship back onto the course he had set a year and a half earlier. “There is no difference between international and national judges; there is no difference between national and international defence lawyers; there is no difference between national and international prosecutors,” he stated, implying just the opposite and thereby warning every actor in the courtroom that they may be being drawn into a dispute or conflict with their counterpart.

Four months before Duch’s appearance, following a year and half of hesitation, contortion and political juggling, the international co-prosecutor had asked for six other suspects to be investigated. He did it against the will of his Cambodian colleague, who followed Prime Minister Hun Sen’s warning that there should be no more than five accused. The three national judges of the Pre-Trial Chamber followed suit and voted against additional prosecutions. And to date, the Cambodian co-investigating judge has resisted any investigation in these new cases.

In October 2009, the international Co-Investigating judge made public six summonses served to high officials in the government who were called as witnesses. They included some of the most powerful men in Cambodia, the President of the Senate and the President of the National Assembly, two former Khmer Rouge members. The summonses were not signed by the national co-investigating judge. This was widely interpreted as more evidence of political pressure or interference from the government. Soon after the requests were made public, Hun Sen and other government officials openly stated that the summoned individuals did not have to, and should not, comply. They did not.

Such is the political reality in which this court and its international staff have to operate. The additional cases, called Case 003 and Case 004, are widely known to include three former district-level Khmer Rouge leaders and two former senior Khmer Rouge commanders who became generals in the current army. These cases are bound to become a case-study of what level of political (and judicial) power is accorded to international judges and prosecutors, depending on the political support they receive, or do not receive, from the United Nations and the few powerful states backing the court. Indeed, the ECCC may well be the international tribunal that has received the least political (and UN) support. Unsurprisingly, this is likely to define its judicial strength and performance. As shown on the issue of corruption allegations within the Cambodian side of the ECCC, the international community does not seem to be able or willing to take a strong stand on additional prosecutions. Cambodians are likely to decide the outcome.

The vulnerability of the second trial, where the four accused are between 78 and 84 years old, and the uncertainty of Cases 003/004, risk reinforcing the unease expressed by Duch’s defence at seeing their client becoming the most prominent figurehead of the crimes committed by the Khmer Rouge.

It is a paradox that S-21 has become the world symbol of Pol Pot’s mass murder of the Cambodian population. In fact, 80% of the victims at S-21 had participated in the Khmer Rouge regime, slavishly or wilfully. Some of them would have been among the accused before the ECCC had they not been destroyed by the very machinery of death they had served or helped create.

The trial of Duch was the trial of a Khmer Rouge whose main task was to kill Khmer Rouge. He was the executioner of a paranoid, self-destructive revolution. This is the ultimate ambiguity of S-21’s status as a genocide museum that honours the hundreds of thousands of Cambodians who died under the Khmer Rouge without ever contributing to the madness of the Communist Party.

In November 2009, at the very last minute of the proceedings, Duch’s Cambodian lawyer showed that his opening statement had been significantly more than a commentary: Kar Savuth now asked that Duch be acquitted and released. And the accused said that this was now his position. Roux’s careful work of the last two years lay in peices, smashed by his own colleague and client. One month before the verdict, Duch requested that Roux’s appointment be revoked.

When he received his sentence on July 26, Duch seemed to have closed the door that he himself had opened a few years ago through his admissions and apology.

Thierry Cruvellier has covered international and hybrid tribunals in Rwanda, Sierra Leone, Bosnia and Cambodia. He is currently working on a book on Duch at trial. His book on the Rwanda Tribunal, Court of Remorse – Inside the International Criminal Tribunal for Rwanda, will be published in August 2010 by Wisconsin University Press.

Related Links:

Indictment (PDF)
Extraordinary Chambers in the Courts of Cambodia

Cambodia Tribunal Monitor