WHEN WILL THE SENIOR LEADERS OF THE KHMER ROUGE BE JUDGED?

The Importance of Case 002



Last week, the Extraordinary Chambers in the Courts of Cambodia (ECCC) tasked with prosecuting crimes committed during the period of Democratic Kampuchea (1975-1979), concluded Case 001. The case investigated Duch (Kaing Guek Eav) who was the the prison chief of S-21 where approximately 14,000 people were forced to confess under torture and ultimately executed. As the Khmer Rouge regime's highest level security center, S-21 imprisoned mostly Khmer Rouge cadres and party officials. Throughout the length of the case, it was evident that Duch was unremorseful despite his public apology at the onset of the trial in February. Indeed, some victims viewed his apology with skepticism and expert observes saw it as a strategy for a lesser sentence. His concluding remarks last week affirm this and his attempt to use the Court as his last battle to defend his belief in the Khmer Rouge revolution. His words and thoughts remain strikingly inhumane in the eyes of survivors; he has not changed in the least.

The Court's next case, Case 002, is the most political and historically important one because it involves the four highest-ranking Khmer Rouge leaders who are still alive today: Nuon Chea, Ieng Sary, Ieng Thirith, and Khieu Samphan. Many questions concerning Democratic Kampuchea's three year, eight month, and twenty day rule have not been answered. These leaders have not admitted any responsibility for the crimes during this period and instead have blamed lower cadres and others. Abundant information exist however that demonstrate their culpability, including numerous documents detailing their actions and witnesses who can testify to the formation and implementation of these actions. Therefore, this trial offers an important chance to uncover and analyze how Khmer Rouge leaders made decisions that caused the deaths of nearly two million Cambodians. Case 002 could provide long-awaited answers to questions that many Cambodians have had regarding Democratic Kampuchea. Additionally, this case has the potential to offer some justice and relief from the immense pain and suffering bore by victims through the punishment of those responsible.

Public Comment on Proposed Changes to Civil Party Participation before the ECCC

Andrew F. Diamond, J.D., in his personal capacity

Fall 2009 Legal Associate, Documentation Center of Cambodia (DC-Cam)



Introduction

The Extraordinary Chambers in the Courts of Cambodia’s (ECCC) scheme for survivor participation has been hailed as groundbreaking and unprecedented, due in large part to the recognition of certain survivors as “civil parties” who were to be treated as full parties to the proceedings. Substantively, however, this scheme did not even survive the first trial intact.[1] With an eye towards the second case, for which pre-trial proceedings are already underway, the Chambers are seeking to further restrict the role of civil parties and their lawyers, particularly in light of the large number of survivors seeking civil party status. They are doing this through the revision of the ECCC’s Internal Rules governing civil parties. The Rules and Procedure Committee is set to discuss the draft Rules during the first week of December and, if accepted, the plenary will decide on adoption shortly thereafter.

According to an ECCC Plenary Session press release, the proposed rule changes will focus on “promot[ing] greater efficiency in trial management.” Although almost all observers recognize that better civil party organization and management is essential for the much larger Case 002, the revised Rules should not be used as a Trojan horse, where in the name of judicial management, the rights of civil parties are undercut to such an extent that they could no longer in good faith be properly considered “parties” to the proceedings. In such an instance, to gut the role of civil parties and their lawyers while not acknowledging that fact would seriously undermine the very credibility of the Chambers itself.

Under Cambodian law and in other civil law jurisdictions, persons qualifying as “civil parties” are afforded certain minimum rights, rights that both survivors and their lawyers must also have before the ECCC. If the Chambers fail to retain these rights under the revised Rules, the ECCC will not only distort the precedential value of its survivor participation scheme for future internationalized tribunals, but also mislead the survivors about their role in the proceedings. This legal sleight of hand would be unconscionable as these participants are survivors of one of humanity’s worst crimes.



The Legal Rights of Civil Parties

The ECCC is the first internationalized tribunal to explicitly provide for civil party participation. “Civil party” is a legal term of art. Although the basket of rights it includes varies among jurisdictions, a tribunal cannot just declare certain victims to be “civil parties” in the proceedings while not affording them the concomitant rights that accompany this role. Notably, while the International Criminal Court (ICC) provides for enhanced victim participation, its scheme purposefully does not rise to the level of civil party participation, as victims before the ICC are not recognized as parties to the proceedings. Additionally, the Special Tribunal for Lebanon, which is heavily influenced by civil law, provides that “[a]lthough [victims] do not have the same right as the parties civiles (private complainants) of the civil law system – such as to seek compensation – they may exercise a number of procedural rights (for instance, receiving documents filed by the Parties, calling witnesses upon authorization of a Chamber, examining and cross-examining witnesses, filing motions and briefs.”[2] Given that these international tribunals provide for survivor participation that intentionally does not rise to the level of civil party participation, it would seem only logical that the ECCC’s civil party participation scheme must at least provide survivors the rights contained in those lesser survivor participation schemes. However, as discussed below, there are concerns that with ECCC civil parties may in fact have fewer rights.

Admittedly, the rights of civil parties—and more broadly, survivors—do not exist in a vacuum. In criminal proceedings, the court must balance survivors’ rights with the need for a fair trial that preserves the rights of the accused. Additionally, the proceedings should proceed as expeditiously as possible. These three competing interests often operate in tension with each other, where the expansion of one interest serves to restrict another. This is especially true for the ECCC, as it oversees proceedings potentially involving thousands of civil parties. The ongoing tension between these competing interests that have led to departures from Cambodian practice prompted Judge Lavergne to ask, “[h]ow far can one go without breaching the spirit of the law, or fundamentally distorting the meaning of the involvement of Civil Parties before the ECCC and the purpose of the trial as a whole, characterized by the coexistence of two interrelated actions, namely criminal and civil actions.”

With the adoption of more restrictive civil party rules, there is a concern that the ECCC will pass that point. To combat these concerns, the revised Rules must at a minimum preserve the attorney-client relationship—and its attendant rights—while also continuing to guarantee the right of survivors to participate in the proceedings as “parties.” A failure to do either would so undermine the rights of survivor-participants that they could no longer properly be considered civil parties.



Attorney-Client Relationship

As parties to the proceedings, civil parties currently have a right under the Internal Rules to be represented by counsel. For this right to be robust and meaningful, it must continue to include the necessary elements of any attorney-client relationship: the right of the client to hire an attorney of his/her choice, the client’s right to fire his/her attorney, the obligation of the attorney to represent the client’s interests, and the authority of the client to determine the objectives of the legal representation and participate in deciding the means of carrying them out. A failure to include these necessary elements in the revised Rules would so severely undermine the right to counsel as to leave serious questions as to whether the Chambers are paying anything more than mere lip service to this fundamental principle of the rule of law.

According to the ECCC press release, beginning at the trial stage civil parties will be consolidated into a single group and the group’s interests as a whole will be represented by the co-lead counsel. It further states that civil party lawyers are to provide support to the co-lead counsel. Under this scheme, however, it is unclear who will represent the interests of individual civil parties. It is essential that civil party lawyers are not relegated to being glorified paralegals, confined to non-substantive tasks, and prohibited from advocating to the court behalf of their client. If this proves to be the case however, there must be a clear reciprocal relationship between the lead counsel and each civil party with clear language as to the co-lead counsel’s obligation to the individual civil parties, and not just the consolidated group as a whole. For example, the ICC has specifically stated that “[t]he common legal representative shall be responsible for both representing the common interests of the victims during the proceedings and for acting on behalf of specific victims when their individual interests are at stake.”[3] Such language in the revised Rules would help allay concerns that the civil parties’ individual interests are being subjugated to the overall interests of the single consolidated group.

The revised Rules must also contain a mechanism for the raising or settlement of strategy disputes between a civil party lawyer and the co-lead counsel. Such disputes will inevitably arise between lawyers, in particular when they represent clients with different interests and goals. To provide no dispute resolution mechanism in the revised Rules would ignore the certainty that legitimate disagreements will arise. Notably, the ICC provides that if the common legal representative cannot “fairly and equally” represent the interests of one or more groups of victims, the common legal representative will inform the Trial Chamber “who will take appropriate measures and may, for example, appoint the Office of the Public Counsel for the Victims to represent one group of victims with regard to the specific issue which gives rise to the conflict of interest.”[4]

Likewise, there must be an incentive for the ECCC co-lead counsel to take into account dissenting opinions from the civil party lawyers. If a civil party lawyer vehemently objects to a certain decision made by the co-lead counsel, there must be choices available beyond continuing on as a civil party lawyer despite this objection or quitting. Given that civil party lawyers, like all legal counsel, are obligated under national and international ethics codes to represent their client’s views and interests, this would put them in an impossible situation.

Moreover, the rights of the civil parties themselves must be protected. Civil parties must also be allowed throughout the proceedings to hire counsel of their choosing, as well as fire their counsel, and determine the objectives and means of implementing those objectives. This is essential because many of the survivors in Case 002 come from different ethnic or religious backgrounds, may have experienced their injuries at different times, different locations and at the hands of different people, and are likely to have different objectives for their participation and desire differing forms of reparations. These varying and potentially divergent interests must be represented if there is to be true civil party participation under the revised ECCC Rules.



Right to Participation

Under the ECCC Internal Rules as originally drafted, once a civil party joins the proceedings, “the Victim becomes a party to the criminal proceedings.” As a result, the civil party is entitled to “[p]articipate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution,” as well as to seek “collective and moral reparations.” This right to meaningfully participate in the proceedings as a party carries with it certain rights, such as the right to call, examine and cross-examine witnesses, to be questioned as an interested party, and to request investigative action, among others. In order to still be considered “parties” to the proceedings, these rights must remain intact.

Because the co-lead counsel are intended to take the lead in representing all civil parties, civil party rights most likely will have to be exercised through the co-lead counsel. This could render many of these rights illusory. For example, one of the key participatory rights afforded to civil parties in civil law jurisdictions around the world, including Cambodia , is the right to request investigative action. Previously, this right could have been exercised through the civil party lawyers. It is now unclear what impact the creation of a co-lead counsel will have on this right but presumably it would have to be exercised through the co-lead counsel. However, the co-lead counsel are responsible for the interests of all survivors within the consolidated group. Thus, if one group of survivors wishes to request investigative action, but the co-lead counsel feels that this action could run counter to the overall strategy, then the co-lead counsel could refuse to request investigative action, undercutting the right entirely. Again, the presence of a dissent mechanism is vital to provide substance to the exercise of these rights.

As Judge Lavergne noted in a dissenting opinion, civil parties in domestic jurisdictions “may participate throughout the legal proceedings, the common purpose of which is to ascertain the truth concerning the accused’s criminal responsibility, which might also be the basis of his or her civil responsibility.” This dissent was to the mid-2009 decision by the Trial Chamber that eliminated outright the right of civil parties to participate in sentencing proceedings and severely undermined their right to cross-examine certain witnesses. The ECCC so ruled despite the fact that both international tribunals that allow victims to participate in proceedings, though not as civil parties, provide victims with the right to participate in sentencing proceedings. Although individual changes to the Rules may not be decisive, in combination with this recent decision, a revised Rules scheme that does not preserve such fundamental civil party rights as the right to request investigative action would suggest that ECCC “civil parties” are no longer “parties” to the proceedings.



Conclusion

If new civil party rules are adopted that do not preserve the attorney-client relationship and a genuine right for civil parties to act as “parties” in the proceedings, it is unclear what role, if any, survivors will continue to have before the ECCC. To preserve their meaningful role, as originally envisioned, the Chambers must ensure that it does not strip away too many civil party rights, all in the name of judicial management of the case. While the Chambers have every right to do this, if they are to end civil party participation, they should be honest with the survivors. As two observers have written, “[i]f civil party participation is replaced by representation of victims’ collective interests…the Court must explain to applicants that their participation rights have been eliminated.”[5] Likewise, as stated by Youk Chhang, Director of the Documentation Center of Cambodia, in the September 2009 edition of Searching for the Truth Magazine,

It is true that many civil parties do not fully understand the meaning of the term “civil party” and the scope of their role in the proceedings; however, it would be disrespectful for the Court to hide behind this outreach failure. If the Court wants to limit civil party rights, it has an obligation to explain the full legal implications both to the public at large and to the applicants before a final plan is adopted.

Given the immense suffering and trauma experienced by these survivors, it is the very least the Chambers can do.



[1] See ECCC Trial Chamber, “Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character,” ¶ 13, 9 October 2009 (“[A] restrictive interpretation of rights of Civil Parties in proceedings before the ECCC is required.”).

[2] Special Tribunal for Lebanon , Statement from the STL President Judge Antonio Cassese, “Adoption of the legal instruments governing the organization and the functioning of the Special Tribunal for Lebanon ,” ¶ 3, available at http:/www.stl-tsl.org/sid/59.

[3] Prosecutor v. Germain Katanga and Matheiu Ngudjolo Chui, International Criminal Court Trial Chamber II, ¶ 13, 22 July 2009 (emphasis added). Additionally, the ruling provides that “[t]he common legal representative shall be accountable to the victims as a group, who may petition the Registry in case of significant problems with the representative function of the common legal representative. If the problem cannot be resolved by the Registry, the latter shall inform the Chamber.” Id.

[4] Katanga at ¶ 16.

[5] Sarah Thomas & Terith Chy, “Including the Survivors in the Tribunal Process,” in On Trial: The Khmer Rouge Accountability Process, John D. Ciorciari & Anne Heindel (eds.), at 286 (2009). See also: Letter from Youk Chhang to Susan Lamb, Senior Judicial Coordinator, on behalf of the Rules and Procedure Committee, August 26, 2009 (“If the Court substitutes a Victims’ Advocate approach for civil party participation, it has an obligation to explain the full legal implications both to the public at large and to the civil party applicants before a final plan is adopted.”).

What Happens After

Elizabeth Do

The word “Khmer Rouge” can invoke images of brutality, terror
and tragedy. Indeed, the Khmer Rouge rule of Cambodia from 1975 to 1979 is
arguably one of the worst human rights violations in world history, holding
court with the Holocaust, Mao Zedong’s Cultural Revolution, an d the Rwandan
Genocide. In my years of studying political science at Stanford, I’ve become
familiar with the history of such genocides, how they emerge and unfold in a
country’s darkest days.

But what happens after? How do countries recover from their horrific pasts?

This past summer, I got a glimpse into how Cambodia has decided to deal with
and take charge of its past, namely through the means of the justice system.

While in Cambodia carrying out field research for my thesis, I got the
chance to attend some of the hearings at the Extraordinary Chambers in the
Courts of Cambodia (ECCC) for the trial against Guek Eav Kaing, alias Duch
(pronounced “Doik”), the former head of the Khmer Rouge’s (KR) S-21, or Tuol
Sleng, prison. Under Duch’s watch, an estimated 17,000 people perished at
S-21. Prisoners included officers from the former Lon Nol regime,
intellectuals, and eventually even cadres from within the Khmer Rouge’s own
party. Driven by fear and paranoia of such political and social threats to
the new regime, the Khmer Rouge brought prisoners to S-21 on trumped-up
charges of espionage and treason and employed torture and mass extermination
in order to extract confessions and deal out punishments. There are a few
survivors of S-21 but in general, once people were brought to the prison,
their fates were sealed.

Sadly, 17,000 deaths is only a drop in the bucket considering the overall
death toll of more than 1.7 million people caused by the KR regime. When the
extremist communist group took over Cambodia in April 1975 and renamed the
country Democratic Kampuchea, the Khmer Rouge began a reign of terror
characterized by 17-hour work days, food deprivation bordering on
starvation, campaigns against political enemies, and waves of disappearances
and arbitrary killings. The name Pol Pot, the alias of Saloth Sar who headed
the Khmer Rouge, still rings eerily in people’s conversations of Cambodia’s
past.

Even more disturbing is the fact that most former KR leaders have lived with
nearly total impunity for their actions since the end of the regime in 1979.
In an effort to address this injustice, the United Nations and the Cambodian
government agreed to jointly establish the ECCC, better known as the Khmer
Rouge Tribunal, in June 2003. After additional negotiations between the UN
and Cambodia and funds raised by international donors to create the ECCC
budget, the court began to take shape by July 2006. The ECCC is a hybrid
court, meaning the court “enforce[s] a combination of domestic and
international criminal law and comprise[s] both local and international
judges, prosecutors and administrative staff.”[1] Examples of hybrid courts
include those in Kosovo, East Timor and Sierra Leone. The hybrid court
structure gives the ECCC the legitimacy gained from incorporating
international standards of justice and the broad impact gained from being
based just outside Phnom Penh, Cambodia and actually being accessible to the
Cambodian people.

The objective of the ECCC is to investigate the crimes committed during the
KR period. “The atrocity crimes falling within the jurisdiction of the ECCC
are genocide, crimes against humanity, and certain war crimes. The ECCC also
has the power to judge a limited set of crimes under Cambodian law.”[2] So
far, it has focused its efforts on charging the former senior members of the
Khmer Rouge. As of today, the ECCC has charged four former officials,
including:

Nuon Chea, former prime minister of Democratic Kampuchea and second in
command after Pol Pot;

Ieng Sary, former deputy prime minister of Democratic Kampuchea and third in
command after Pol Pot;

Ieng Thirith, wife of Ieng Sary and former minister of social affairs of
Democratic Kampuchea; and

Khieu Samphan, former president of Democratic Kampuchea and fifth in command
after Pol Pot.

While these four people have yet to be indicted, the ECCC has indicted the
former chief of S-21, Duch, on charges of crimes against humanity and other
crimes. His nine-month trial began in February 2009 and recently concluded
Friday, November 27th.

During my two-month stay in Cambodia, I attended a couple of Duch’s
hearings. A glass, bullet-proof wall separated the courtroom where he sat
and the adjacent room where I sat with other audience members. The audience
room filled with a diversity of people including tourists, journalists,
Cambodian student groups, and elderly Cambodian villagers who had been
bussed to the tribunal from the countryside. The courtroom consisted of the
judges, defendant and prosecution teams, and translators who translated the
proceedings into Khmer, English, and French (the court’s three working
languages). Finally, a section of the courtroom was designated to the civil
party teams, which consisted of Cambodian people who had been victims
themselves or had family members who were victims at S-21 and were filing
civil suits against Duch. Some civil party claimants, I was told, had
attended every single hearing since the beginning of the Duch trial.

Duch was not what I had expected. His physical appearance was small and
unassuming. He bore a closer resemblance to my aging father than what I
would imagine for the former head of one the most infamous security
detention centers of the KR regime. On my first day attending the trial,
Duch was at the witness stand answering questions from the ECCC judges
regarding S-24, a “re-education center” that was in fact a labor camp that
he oversaw in addition to S-21. He answered the judges’ questions in a
detailed and meticulous manner, which was fitting considering his background
as a math teacher and also shed some light on how he was able to rise to the
top of the KR ranks and maintain control of the S-21. On other days, the
court heard testimony from former staff members of S-21, including Him Huy,
a former guard part of the S-21 team who transported people to the prison.
The testimony from these “insiders” characterized the S-21 operations as
orderly and systematic.

The most memorable scene from the trial for me was hearing Norng Chan Phal,
one of the handful of people who survived S-21, testify. In 1978,
eight-year-old Chan Phal was brought to S-21 with his mother and his younger
4-year old brother. He was just a kid, but he remembered the Khmer Rouge
beating his mother when they arrived at the prison and subsequently being
separated from her. For the few weeks he stayed at S-21, Chan Phal stayed in
a back room of the prison until Vietnamese soldiers, who would eventually
depose the Khmer Rouge, arrived at the prison in 1979. In the courtroom,
Chan Phal’s voiced trembled when he recalled trying to search through the
prison cells for his mother when the Vietnamese arrived, only to find dead
rotting bodies. He said that, at the time, he wanted to remain at S-21 so
his mother could find him. His voice then trailed off and the silence in the
courtroom seemed to recognize this statement as a reflection of his past
false hope. Over thirty years had passed but it was clear that the S-21
experience still lived with him. During Chan Phal’s testimony, Duch hardly
looked at the witness and appeared stone-faced. Perhaps he felt
disconnected; although he has expressed regret over the deaths of the
prisoners and has taken responsibility for them as the chief in command of
the prison, he has maintained that he did not carry out any killings and
only tortured one individual. Moreover, he has openly questioned the
validity of Chan Phal’s presence and survival at S-21, saying that all child
prisoners there were killed.

Witnessing these different and contested testimonies, I saw justice unfold.
Thirty years ago, such an exchange was not possible. At that time, many
Khmer Rouge were in hiding from and even active in warfare against the
Vietnamese invading forces, which undermined attempts at securing peace and
justice for the Cambodian people. Today, to be able to face a former KR
perpetrator, whether as a witness or civil party claimant, is profound both
in its symbolic and legal terms. While the public discourse about the Khmer
Rouge has assuredly begun decades ago, the recent ECCC trial has offered an
official platform to seek, speak, and record this dialogue and extract the
truth. It also provides recourse for rectifying past wrongdoing. For these
reasons, the prospect for justice in the aftermath of the KR regime is
promising. Of course, the ECCC is not imperfect. In fact, allegations of
corruption and bias have put the court’s legitimacy and effectiveness into
question and threatened to shut down the operation. Much more can also be
done to address the legacy of the KR regime and the present-day needs of its
victims such as in the areas of poverty and mental health. Nonetheless, the
progress of the ECCC thus far in facilitating truth, closure for victims,
and punishment of those most responsible for KR crimes represents one step
closer to justice and recovery in Cambodia.

With the completion of the trial against Duch, the ECCC is set to begin
“Case 2” against the four other defendants. Unlike Duch, these former top
officials have been less cooperative and denied responsibility for the
crimes that took place under their control. As such, “Case 2” will likely be
a formidable challenge for the ECCC prosecution team. At the same time, the
case against the former top leaders of one of the most horrific regimes in
history will also represent an important milestone for both Cambodia and the
international community. Indeed, history is in the making.

Duch Seeks an Aquittal and Immediate Release

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

Cambodian Defense Counsel Kar Savuth delivers his rebuttal
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.

International Co-Prosecutor William Smith’s Rebuttal

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.

Karim Khan Intervenes

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.

Cambodian Co-Prosecutor Chea Leang’s Rebuttal

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.

Smith Rises Again

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’s 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 François Roux’s Rebuttal

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 and Roux Lock Horns

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.

The End Game with Duch

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.

Press Conference

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.”

One man stands to pay for Cambodia's crimes

BEN DOHERTY, PHNOM PENH
November 28, 2009

There is anxiety that delays and interference will spell the end of the
Khmer Rouge trials.

IN COURT, the high school maths teacher Kaing Guek Eav is a meticulous
note-taker. Bespectacled and neatly dressed, he records impassively each of
the horrific accusations made against him.

He is unemotional, inscrutable. When he speaks, he is deferential and
polite.

The torturer, the mass-murderer he was to become is not apparent.

But they are the same man. Under his revolutionary name, Duch, Eav ran the
Khmer Rouge's notorious Tuol Sleng jail. Enemies of the party were brought
there to be tortured - shocked, beaten, mutilated - before being bludgeoned
to death at the nearby killing fields.

While he confessed this week: ''I am solely and individually responsible for
the loss of at least 12,380 lives,'' Duch then confused the court on the
final day of his trial when he asked to be acquitted and released. The court
ordered that he remain in custody.

With his seven-month hearing now concluded, and he awaiting a sentencing
decision early next year, Comrade Duch holds the dubious distinction of
being the only person ever to stand a full trial for the crimes of the Khmer
Rouge.

And, with 30 years passed since the regime was toppled, it is possible that
he, alone, will face justice for the crimes of a regime that killed more
than 1.7 million.

The Extraordinary Chamber of the Courts of Cambodia - the hybrid
international/Cambodian court established to hear the Khmer Rouge trials -
is slated to try four other regime officials, all more senior than Duch.

But those four are ageing and in ill health and it is a very real
possibility they may not live long enough to complete their trials.

And with corruption allegations hanging over the court and signs of
interference, it is possible the chief architects may escape ever being
brought to account.

Comrade Duch was a prison boss, not a party leader. He followed, to the
letter and beyond, his brutal orders to ''smash'' inmates.

Some of those who gave the orders are to face court next.

Nuon Chea, or Brother Number 2, was the second-in-command. Ieng Sary was
foreign minister and his wife, Ieng Thirith, the minister for social
affairs. Khieu Samphan was the titular head of state. The youngest of these
defendants is 77, the men are seriously ill.

The court's UN administrator, Knut Rosandhaug, said it would be mid-2011
before the trial of the four, Case Two, can be heard. It will likely be
"2014, maybe 2015", before it is concluded.

Court monitor Heather Ryan from the Open Society Justice Initiative told The
Age it was a real possibility some, or all, might die before then.

"It's not inconceivable given the age of the accused. For these people to
face justice, they need to survive at least another 3½ years. … I think it
would be exceptionally unlikely that all of them would survive that long."

The four are the most senior officials known to still be alive. Pol Pot died
in 1998.

"Case Two is the most important," the director of the Documentation Centre
of Cambodia, Youk Chhang, said. "These were the leaders, none of them have
apologised, none of them have asked for forgiveness, none of them speak

"How long those defendants live is up to God. But I never wish them dead,
never. I want them to face the court, to answer for what they have done."

But other concerns hang over the court.

There is anxiety that the Government is interfering, refusing to co-operate
with inquiries and trying to stifle further investigations it might find
uncomfortable.

Prime Minister Hun Sen, a former low-level Khmer Rouge cadre, believes more
charges could lead to civil war. "I wish the court would have a budget
shortfall as soon as possible," he said.

A report this week from the Open Society Justice Initiative found Cambodian
court staff were refusing to issue summons to witnesses who hold senior
government posts.

And investigations into another five Khmer Rouge leaders, believed to
include senior government figures, have been stifled by the Cambodian side
of the court.

"It seems that there are efforts being made to protect people from having to
be involved," Ms Ryan said.

Cambodians, who are naturally distrustful of courts through domestic
experience, have embraced the court and the opportunity for justice it
offers. Hundreds filled the public gallery every day of the Duch trial.

Duch will have just one more day in court, next year, when he will learn his
fate.

Who will follow him into the dock is unknown.

Khmer Rouge Warden Asks to Be Freed

By SETH MYDANS
Published: November 27, 2009

PHNOM PENH, Cambodia — The nine-month trial of a former prison chief for the
communist Khmer Rouge ended Friday when the defendant unexpectedly asked to
be set free despite his repeated admissions of guilt.

“I would ask the chambers to release me,” said the defendant, Kaing Guek
Eav, 67, known as Duch, as he addressed the panel officially known as the
Extraordinary Chambers in the Courts of Cambodia. “Thank you very much.”

The judges took no immediate action, and they are expected to render their
verdict early next year.

The Khmer Rouge caused the deaths of 1.7 million people when it ruled
Cambodia from 1975 to 1979, and Duch is the first of five members of the
regime to face trial. Because of the complex structure of the mixed
Cambodian-United Nations tribunal, the trial of the other four defendants is
not expected to open until 2011.

In a formal statement to the court on Wednesday, Duch said he was “deeply
remorseful and profoundly affected by the destruction on such a
mind-boggling scale.” He apologized to the dead, to their families and to
all Cambodians.

Throughout the trial he has described in detail his role as the commandant
of Tuol Sleng prison, also known as S-21, where at least 14,000 people were
tortured and sent to their deaths. Almost no one who fell into his hands
survived.

Duch faces a possible term of life in prison for crimes against humanity and
other crimes, but the prosecution asked for a reduced sentence of 40 years
because of his cooperation and the five years of unlawful detention he
served earlier in a military jail.

There was disarray in the courtroom earlier in the week, when Duch’s two
lawyers, in separate statements, took sharply diverging approaches. His
Cambodian lawyer, Kar Savuth, broke from the defense strategy of admission
and apology on Wednesday and asserted that his client was not guilty.

On the following day, Duch’s French lawyer, François Roux, explicitly
disavowed that assertion. He emphasized Duch’s cooperation, including
sometimes pedantic descriptions of his techniques of prison management and
torture. But Mr. Roux sought to minimize his client’s significance, saying
the Tuol Sleng deaths amounted to only 1 percent of the overall toll.

“As long as the prosecution’s submissions make this man a scapegoat, you
will not advance the development of humankind one millimeter,” Mr. Roux said
in his closing statement. “No, Duch does not have to bear the whole horror
of the tragedy of Cambodia on his head.”

In his own statement, Duch said he was only following orders that came down
from the Khmer Rouge chief, Pol Pot, who died in 1998 without ever facing
trial.

“I could do nothing to help,” Duch said. “Pol Pot regarded these people as
thorns in his eyes.”

Duch read his apology from a prepared statement, as he had with a similar
apology after the start of the trial in February, and a prosecutor, William
Smith, said his partial and qualified admissions throughout the process
showed that he was “not facing up to who he was back in 1975 to 1979.”

Mr. Smith on Thursday asked the five-judge panel to “remember the victims”
and to “send a clear message to the future of Cambodia.”

“We gave the accused that opportunity about two days ago to say to this
court, to say to the people of Cambodia, ‘Yes, I committed these crimes. I
committed them willingly,’ ”Mr. Smith said.

“But what he’s done,” Mr. Smith added, “he’s had his international counsel
say he was a small cog in a machine.”

At a press conference following Duch’s request to be released, Mr. Smith
said, “We, the co-prosecutors, have been taken by surprise. It’s still in my
mind unclear whether there was agreement or disagreement between the
national and international counsel.

“The fact that he entered a request for an acquittal reinforces in our mind
that the remorse is limited.”

The completion of the case against Duch marked a moment of success in a
process that has been surrounded by controversy since the earliest
discussions about a tribunal in 1997 between Cambodia and the United
Nations. There have been continuing concerns over possible political
interference, corruption and the quality of the jurisprudence.

But on Thursday, Mr. Roux declared: “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 have done it.”

The tribunal is now scheduled to move to “Case 2,” what is likely to be a
long and complicated proceeding for the other four defendants, who, unlike
Duch, had held official senior positions in the Khmer Rouge leadership.

These defendants — including 83-year-old Nuon Chea, “Brother No. 2” behind
Pol Pot — have denied their complicity, which is based on less concrete
accusations of command responsibility.

Their lawyers have already filed many motions are were expected add to the
complications in a case where legal maneuvering is likely to overshadow the
kind of dramatic accounts provided by Duch and the witnesses who testified
against him.

THE CRIME OF OBEDIENCE

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

On Thursday, November 27, 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 26, 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."

Disagreement Between the Defense Counsel
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."
Dragan Obrenoviæ Precedent

Roux then received permission from the judges to show a film from the trial of Dragan Obrenoviæ
before the International Criminal Tribunal for the Former Yugoslavia (ICTY). Obrenoviæ 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 Obrenoviæ 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."

Co-Prosecutors Miss Their Date with History
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."

Etcheson Testimony
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?"

President Obama's Instructions
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."

Joint Criminal Enterprise
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.

Duch's Sentence
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.

The Albert Speer Defense
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. Obrenoviæ 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.

Civil Party Group 1
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."

Civil Party Group 2
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.

Civil Party Group 3
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."

Civil Party Group 4
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.