14 February 2008: As the trial of Khmer Rouge detention center director Duch begins, a curtain-raiser look at the court, the case and the defendent.
(Photo: One of the rare photos of Duch in his Khmer Rouge days. Provided by the Documentation Center of Cambodia.)
By Isabelle Roughol
Thirty years after Vietnamese forces ousting the Khmer Rouge from Phnom Penh discovered the horrors of the S-21 detention center, its director Kaing Guek Eav, better known by his revolutionary nom de guerre Duch, will now stand to face justice.
Almost a decade after he was arrested and following 18 months of investigation, Duch’s initial hearing in the Trial Chamber of the Khmer Rouge tribunal will mark the much-awaited start of the court’s first trial.
“It’s the beginning-maybe not quite the beginning, but it’s certainly the most public embodiment of the process to bring some justice to the Cambodian people,” said Robert Petit, the court’s international co-prosecutor. “We’re all very much mindful of the importance of it.”
ALMOST STARTING
It’s maybe not quite the beginning because the hearing on which media and public attention has been focused is purely procedural. It is likely to be far less dramatic a curtain-raiser than some might expect. Petit said he feared expectations ran too high, which is why the court felt the need to issue a statement to clarify the process.
“Neither the Accused Person, nor any witnesses, experts, or Civil Parties will speak at the Initial Hearing on any matters of substance,” the Jan 23 statement read.
Anne Heindel, legal adviser at the Documentation Center of Cambodia, agreed. “It’s going to start looking like a real trial a month later,” she said.
The Trial Chamber will first consider the list of potential witnesses and experts submitted by the prosecution and defense teams, as well as the applications of civil parties, according to the internal rules of the Extraordinary Chamber in the Courts of Cambodia. The judges will determine if all the proposed witnesses and civil parties are relevant to the case, and deal with technical matters such as how many days a week the court will convene.
The parties may also raise preliminary objections as to the jurisdiction of the courts or other reasons why Duch’s prosecution should be terminated, according to the rules.
“Duch may very well raise an objection to the jurisdiction of the court based on his eight years of detention,” Heindel said. Because his rights were violated by such a long pretrial detention, his defense team could argue that the whole court’s proceedings were “tainted” by it and should be dismissed, she explained, adding however that this was very unlikely.
Once the Substantive Hearing gets started, in late March or April, Duch will be the first to take the stand.
A PECULIAR DEFENDENT
Duch stands out as a defendant: he recognizes some responsibility for the crimes committed at S-21. The degree of responsibility he holds will be the crux of the matter.
“Our client has always said he was ready to explain himself before the Judges and the victims. That is what he will do,” Duch’s French lawyer, Franìois Roux, wrote in an e-mail.
Duch gave an interview in May 1999 to the Far Eastern Economic Review that revealed he was living in Samlot, near Battambang. People there knew him as Ta Pin, a Christian convert, teacher and aid worker, and described him at the time as kind and well mannered.
“He explained that he was led to speak out in 1999 because ‘it was impossible not [to] tell the truth about S-21′ after he heard that ‘Pol Pot denied the existence of S-21 and claimed that it was an invention of the Vietnamese,’” the 45-page indictment against Duch noted.
Duch went into hiding after the 1999 interview but was found and arrested May 9 of that year. He was initially charged by the Military Court of Phnom Penh, which kept him in detention by regularly filing new charges against him: first, crimes against domestic security in May 1999; then genocide in September 1999; then crimes against humanity in 2002; and finally war crimes and crimes against internationally protected persons in 2005.
On July 31, 2007, the newly created ECCC took custody of Duch. The mixed national and international court was starting its work, 10 years after the UN and Cambodian government began negotiating its creation.
THE CASE
Duch’s trial will be an opportunity to establish the facts of history in a way that scholars have not yet done, looking at physical crimes on the ground and confronting several versions of events, said DC-Cam Director Youk Chhang.
“I think victims and perpetrators tend to have selective memory. It will be interesting to have both sides speak in front of a court,” he said.
Duch’s indictment details the establishment of the S-21 detention center as well as the related Choeung Ek killing fields and Prey Sar, or S-24, reeducation camp, and the alleged crimes that were committed there.
S-21 became fully operational in October 1975 and Duch became its chairman in March 1976. The prison applied the Communist Party of Kampuchea’s policy of systematic “smashing,” or killing, of suspected enemies. S-21 had a political mission, first to eliminate opponents such as supporters of Lon Nol’s Khmer Republic, then to carry out internal purges.
Detainees were systematically interrogated and tortured to obtain confessions, according to the indictment. The confessions did not serve to prove guilt, which was assumed, but rather were extracted for political purposes and justification of the regime’s actions.
The indictment contends that there was no way out of Tuol Sleng, but DC-Cam documents that surfaced after the close of investigation showed that at least 177 detainees were released.
The prosecutors established that at least 12,380 men, women and children were executed at S-21, but as records may have been lost and some prisoners not registered, the numbers are likely higher. They also argue that Duch had to sign off on every execution. When one “enemy” was identified, their entire family, including children, was almost systematically marked for execution too.
Duch is charged with crimes against humanity-namely murder, extermination, enslavement, imprisonment, torture, rape, persecutions on political grounds, and other inhumane acts-as well as with grave breaches of the Geneva Convention of 1949, which regulates the treatment of prisoners of war. Charges of murder and torture under Cambodian national law were also added. He is prosecuted for directly committing, ordering, planning and instigating the crimes as well as for his responsibility for the crimes of his subordinates.
Duch is also a suspect in the ECCC╒s second investigation, along with four former Khmer Rouge senior leaders also in detention: Nuon Chea, Brother Number Two in the regime; Khieu Samphan, the formal DK head of state; and Ieng Sary and his wife, Ieng Thirith, both ministers in the regime. That case concerns all serious violations of international humanitarian law and Cambodian law under Democratic Kampuchea.
In his defense, Duch said he was “both an actor in criminal acts and also a hostage of the regime,” according to the indictment. He said he became paralyzed with fear as he progressively realized the criminal nature of the regime, to the point of spending day and night sleeping or just sitting in S-21’s sculpture room. He added he had tried but failed to escape his post and feared retribution against his family.
“The defense team will participate, where it is concerned, in this judiciary mission,” Roux, Duch’s lawyer, said. “While having the greatest respect for the victims, but also while defending with conviction the right of the accused to an equitable trial, which means a trial that takes into account all aspects of the context in which the facts occurred and that doesn’t make of the accused the scapegoat of the tragedy of Democratic Kampuchea.”
(DROP CAP)
Duch’s case is arguably easier than the second case under investigation, which is more spread out in time and place and which, as Petit said, requires ╥linking architects to their works.╙
“Things are so complicated in Cambodian history. The Duch case is less complicated. It’s one place; he did this and that. The other cases will be bigger picture,” Heindel said. “It’s a good story for the court to tell Cambodians. It’s so straight-forward.”
Although from a legal standpoint, the tribunal will be solely concerned with the guilt or innocence of one man, the stakes of this first trial reach further.
Because it is less complex and because it is the first, Duch’s case is likely to serve as a legal practice range for all parties at the ECCC. Points that the internal rules have left up to interpretation will be clarified. For instance, will judges do most of the questioning of witnesses, as is the practice in the French civil law system, or will they leave the prosecutors to battle it out with the defense in the common law style used in the US and Great Britain?
“We’re going to learn how it works, how this particular chamber will judge,” Petit said. “It is clear that in this aspect, it will be a seminal trial for us.”
The prosecution expects the trial to last a full 12 weeks from the beginning of the Substantive Hearing. It would take four out of the five judges to hand out a conviction, and the verdict must be issued within 90 days after the closing arguments. That means if all goes according to previsions, Duch’s judgment will be rendered before the end of the rainy season.
For victims and the rest of Cambodia, the trial can bring a welcome sense of justice, although it is too soon to determine what impact it will have on the country’s culture of impunity and on the Cambodian people’s expectations of a court of law, all interviewed agreed.
“It’s certainly important for Cambodian history that a process you can see, you can hear is finally happening,” Youk Chhang said.
Duch’s case, he added, is also much less significant to most Cambodians than those to follow: the trial of the senior leaders who stand accused not of at least 12,380 deaths, but of the 1 to 2 million estimated deaths of Democratic Kampuchea. Why Duch alone is being prosecuted, and not the directors of the 197 other detention centers around the country, is another question that will need to be answered, he added.
Beyond the historical blanks to fill and the sense of justice to regain, Duch’s trial and others to come can address the hardest questions to face.
“I don’t think it’s going to change how we think of the Khmer Rouge regime, but it’s going to show it was done by human beings,” Youk Chhang said.
“It’s important for us to understand ourselves, the living, because these were human beings. Perhaps when he accepts responsibility, we’ll start to understand it’s a human responsibility and God cannot take it away.”
