Published on : 13 April 2011 - | By International Justice Tribune (ECCC)
March 28: The first time the appeals bench of the Extraordinary Chambers in the Courts of Cambodia (ECCC) appears in public session. The learned assembly of nine judges, sitting behind eighteen flat computer screens, curves like a spine.
By Thierry Cruvellier, Phnom Penh
Wearing a beige jacket, blue shirt and grey pants, Duch (pictured), the 68-year old former director of the Khmer Rouge torture and death centre, S-21, stands before them.
“The main point is personal jurisdiction. It is purely a legal matter,” he says. Then he sits down and leaves the floor to his lawyers.
Nothing to do with facts
Kaing Guek Eav, (Duch), was convicted last July of crimes against humanity and war crimes for the detention, torture, and murder of more than 12,000 people between April 1975 and January 1979. He was sentenced to 30 years imprisonment. His appeal, however, had nothing to do with the facts or specific legal findings of the Trial Chamber. He now claimed that his case was outside the jurisdiction of this tribunal because he was neither a “senior leader” nor “most responsible” for the crime committed by the Communist Party of Kampuchea under Pol Pot’s rule.
“Duch was chairman of a prison security centre. How could he be most responsible? He received orders from the Communist Party. He was a perpetrator, of course, but he should not be under the jurisdiction of the ECCC. Why only Duch out of 195 prison chiefs?” asked defence lawyer Kar Savuth.
“Personal jurisdiction is strictly about those who were senior leaders and most responsible. A request for a broader interpretation has been bluntly rejected by the Cambodian government,” he said, inadvertently admitting political interference in the judicial process.
Most responsible
The response by national co-Prosecutor Chea Leang was that “Duch is most responsible within the framework of S-21. The security apparatus was at the heart of the CPK’s policy and S-21 was the most important office in the apparatus. Duch was at the highest level of security services.” This makes him one of the “most responsible” people.
In challenging the prosecution strategy, the defence highlighted the fact that Duch is the only mid-level commander to be tried before this court while both the national prosecutor and the Cambodian government are effectively blocking additional prosecutions against five other suspects, including two generals who were more senior than Duch in the Khmer Rouge hierarchy.
80% Khmer Rouge
The defence also touched upon the disturbing fact that 80% of the victims at S-21 were former Khmer Rouge cadres, including senior Party members who would stand accused today had they not been purged by the regime they served.
Kar Savuth, 76, has survived all political regimes in contemporary Cambodia. He shares with some of his Cambodian peers a taste for exaggeration and provocation, but he is cunning and he doesn’t lack eloquence and charisma.
“We do not challenge the ECCC’s jurisdiction. The ECCC has the competence to try the senior leaders. But we question the prosecution’s method of depicting Duch as one of the most responsible for the crimes committed. Who are the main perpetrators? Those who gave orders. Duch was receiving orders from Son Sen and Nuon Chea,” former members of the CPK’s standing committee, he stressed.
85% admission
The trial of Duch, who admitted 85% of the facts alleged in the indictment, was exceptionally devoid of legal wrangling. Neither the Defence nor the Prosecution challenged any factual finding of the Trial Chamber. The Prosecution, however, wants a few legal conclusions by the Trial Chamber to be corrected.
While the trial judges decided to bring all charges for crimes against humanity under the single count of persecution, co-prosecutor Andrew Cayley asked the Appeals Chamber “to create consistency of law” between the ECCC and all other international courts, where criminals can be convicted on multiple charges. The Prosecution also asked the Appeals Chamber to recognize rape as a distinct crime, and to add a conviction on enslavement for the entire S-21 complex, not only for the “re-education” camp of S-24.
Outcome
“It is our submission that forced labour is not a requirement for enslavement,” Cayley argued.
But he admitted that such legal challenges ”will not have great influence on the sentence.” It is hard to imagine that the court would decide at this stage that it lacks jurisdiction in the case against Duch. As a result, the only outcome of the appeal that may be expected to trigger public interest and reaction is whether the 30-year sentence pronounced by the Trial Chamber will be confirmed or altered by the Appeals Chamber.
At the end of the trial, the prosecution asked for 45 years imprisonment, reduced to 40 years in order to compensate for Duch’s illegal detention by Cambodian’s military justice before the ECCC took the case. The Trial Chamber eventually ruled on a 35-year sentence reduced to 30.
Mitigating circumstances
The Prosecution now said that Duch’s challenge of the very fact of being tried, and his last-minute request to be acquitted, nullify the mitigating circumstances that initially justified a reduced sentence.
“Our position is that any mitigating circumstance in this case has vanished,” said Cayley. He argued that Duch’s cooperation with the court—his admission of most charges in his own case and his testimony against four top leaders whose trial is to start this year—“was not given in a voluntary capacity.” According to him, Duch’s expression of remorse lacked sincerity, and his belated challenge on the court’s jurisdiction and his request for relief were “inconsistent with his admission of responsibility.”
Life sentence
Only a life sentence could now reflect the gravity of the crimes committed, Cayley said. To support his claim, he provided the court with a chart of jurisprudence from the Yugoslav and Rwanda tribunals. As often with such arguments, the case law could have been easily challenged by the opposing party. But there appeared to be no one in the entirely Cambodian defence team with the knowledge to do so.
An assertive judge Klonowiecka-Milart noted that both the 2009 Cambodian penal code and the ICC norm contemplate 30 years as the maximum penalty.
“Why and how would it frustrate the purpose of the law if it corresponds to international law?” she asked.
Civil party lawyers did not have a say in the debate over sentencing. But they expressed their dismay at the rejection of several of their clients by the trial judges. About a third of some ninety civil parties who were admitted at the beginning of the trial were eventually declared inadmissible by the Trial Chamber in their judgment.
“After doing everything they were asked, producing whatever they were asked for, coming with great expectation, the day of the judgment they were told that the civil party status they had been granted previously has been revoked. This was most unpalatable. It was a shock,” pleaded Karrim Khan, who had nine clients rejected.
Rules have changed
Whatever the decision of the Appeals Chamber on this issue, it will have no bearing on the next trial before the ECCC: in the meantime, rules have changed, and this issue must be cleared up prior to the beginning of the trial.
Duch remains the only important Khmer rouge commander to ever admit responsibility and acknowledge the criminal policies of the Communist Party of Kampuchea that cost the lives of an estimated 1,7 million people between 1975 and 1979. He testified at length about the creation and functioning of S-21, and what he knew about the leadership and policy of the CPK. He expressed remorse and asked for forgiveness many times. Then, at the end of the proceedings, after he realized that victims’ families were not satisfied and would not pardon him, he gradually appeared to withdraw into himself. The last day of the trial, in a spectacular twist, he had asked to be acquitted and released.
Fateful logic
“Where is Duch today? In which depths has he fallen?” asked civil party lawyer Canonne, wondering about “the fateful logic” followed by the former Khmer rouge.
March 30: two years exactly after Duch’s opening statement before this court. Looking significantly older, he delivers an emotionless and bureaucratic final speech. He looks calm, as if he had perfectly withdrawn into a protected tower by now. He maintains, in an even tone, that he is taking responsibility for the crimes committed at S-21, repeats his apologies and request for forgiveness. But now, he thinks, only the top leaders of the Party, and the leaders of the Cultural Revolution in China who influenced them, should be punished. Duch then takes off his glasses, carefully slips them into his jacket, stands up and walks away. No date has yet been set for a verdict.
March 28: The first time the appeals bench of the Extraordinary Chambers in the Courts of Cambodia (ECCC) appears in public session. The learned assembly of nine judges, sitting behind eighteen flat computer screens, curves like a spine.
By Thierry Cruvellier, Phnom Penh
Wearing a beige jacket, blue shirt and grey pants, Duch (pictured), the 68-year old former director of the Khmer Rouge torture and death centre, S-21, stands before them.
“The main point is personal jurisdiction. It is purely a legal matter,” he says. Then he sits down and leaves the floor to his lawyers.
Nothing to do with facts
Kaing Guek Eav, (Duch), was convicted last July of crimes against humanity and war crimes for the detention, torture, and murder of more than 12,000 people between April 1975 and January 1979. He was sentenced to 30 years imprisonment. His appeal, however, had nothing to do with the facts or specific legal findings of the Trial Chamber. He now claimed that his case was outside the jurisdiction of this tribunal because he was neither a “senior leader” nor “most responsible” for the crime committed by the Communist Party of Kampuchea under Pol Pot’s rule.
“Duch was chairman of a prison security centre. How could he be most responsible? He received orders from the Communist Party. He was a perpetrator, of course, but he should not be under the jurisdiction of the ECCC. Why only Duch out of 195 prison chiefs?” asked defence lawyer Kar Savuth.
“Personal jurisdiction is strictly about those who were senior leaders and most responsible. A request for a broader interpretation has been bluntly rejected by the Cambodian government,” he said, inadvertently admitting political interference in the judicial process.
Most responsible
The response by national co-Prosecutor Chea Leang was that “Duch is most responsible within the framework of S-21. The security apparatus was at the heart of the CPK’s policy and S-21 was the most important office in the apparatus. Duch was at the highest level of security services.” This makes him one of the “most responsible” people.
In challenging the prosecution strategy, the defence highlighted the fact that Duch is the only mid-level commander to be tried before this court while both the national prosecutor and the Cambodian government are effectively blocking additional prosecutions against five other suspects, including two generals who were more senior than Duch in the Khmer Rouge hierarchy.
80% Khmer Rouge
The defence also touched upon the disturbing fact that 80% of the victims at S-21 were former Khmer Rouge cadres, including senior Party members who would stand accused today had they not been purged by the regime they served.
Kar Savuth, 76, has survived all political regimes in contemporary Cambodia. He shares with some of his Cambodian peers a taste for exaggeration and provocation, but he is cunning and he doesn’t lack eloquence and charisma.
“We do not challenge the ECCC’s jurisdiction. The ECCC has the competence to try the senior leaders. But we question the prosecution’s method of depicting Duch as one of the most responsible for the crimes committed. Who are the main perpetrators? Those who gave orders. Duch was receiving orders from Son Sen and Nuon Chea,” former members of the CPK’s standing committee, he stressed.
85% admission
The trial of Duch, who admitted 85% of the facts alleged in the indictment, was exceptionally devoid of legal wrangling. Neither the Defence nor the Prosecution challenged any factual finding of the Trial Chamber. The Prosecution, however, wants a few legal conclusions by the Trial Chamber to be corrected.
While the trial judges decided to bring all charges for crimes against humanity under the single count of persecution, co-prosecutor Andrew Cayley asked the Appeals Chamber “to create consistency of law” between the ECCC and all other international courts, where criminals can be convicted on multiple charges. The Prosecution also asked the Appeals Chamber to recognize rape as a distinct crime, and to add a conviction on enslavement for the entire S-21 complex, not only for the “re-education” camp of S-24.
Outcome
“It is our submission that forced labour is not a requirement for enslavement,” Cayley argued.
But he admitted that such legal challenges ”will not have great influence on the sentence.” It is hard to imagine that the court would decide at this stage that it lacks jurisdiction in the case against Duch. As a result, the only outcome of the appeal that may be expected to trigger public interest and reaction is whether the 30-year sentence pronounced by the Trial Chamber will be confirmed or altered by the Appeals Chamber.
At the end of the trial, the prosecution asked for 45 years imprisonment, reduced to 40 years in order to compensate for Duch’s illegal detention by Cambodian’s military justice before the ECCC took the case. The Trial Chamber eventually ruled on a 35-year sentence reduced to 30.
Mitigating circumstances
The Prosecution now said that Duch’s challenge of the very fact of being tried, and his last-minute request to be acquitted, nullify the mitigating circumstances that initially justified a reduced sentence.
“Our position is that any mitigating circumstance in this case has vanished,” said Cayley. He argued that Duch’s cooperation with the court—his admission of most charges in his own case and his testimony against four top leaders whose trial is to start this year—“was not given in a voluntary capacity.” According to him, Duch’s expression of remorse lacked sincerity, and his belated challenge on the court’s jurisdiction and his request for relief were “inconsistent with his admission of responsibility.”
Life sentence
Only a life sentence could now reflect the gravity of the crimes committed, Cayley said. To support his claim, he provided the court with a chart of jurisprudence from the Yugoslav and Rwanda tribunals. As often with such arguments, the case law could have been easily challenged by the opposing party. But there appeared to be no one in the entirely Cambodian defence team with the knowledge to do so.
An assertive judge Klonowiecka-Milart noted that both the 2009 Cambodian penal code and the ICC norm contemplate 30 years as the maximum penalty.
“Why and how would it frustrate the purpose of the law if it corresponds to international law?” she asked.
Civil party lawyers did not have a say in the debate over sentencing. But they expressed their dismay at the rejection of several of their clients by the trial judges. About a third of some ninety civil parties who were admitted at the beginning of the trial were eventually declared inadmissible by the Trial Chamber in their judgment.
“After doing everything they were asked, producing whatever they were asked for, coming with great expectation, the day of the judgment they were told that the civil party status they had been granted previously has been revoked. This was most unpalatable. It was a shock,” pleaded Karrim Khan, who had nine clients rejected.
Rules have changed
Whatever the decision of the Appeals Chamber on this issue, it will have no bearing on the next trial before the ECCC: in the meantime, rules have changed, and this issue must be cleared up prior to the beginning of the trial.
Duch remains the only important Khmer rouge commander to ever admit responsibility and acknowledge the criminal policies of the Communist Party of Kampuchea that cost the lives of an estimated 1,7 million people between 1975 and 1979. He testified at length about the creation and functioning of S-21, and what he knew about the leadership and policy of the CPK. He expressed remorse and asked for forgiveness many times. Then, at the end of the proceedings, after he realized that victims’ families were not satisfied and would not pardon him, he gradually appeared to withdraw into himself. The last day of the trial, in a spectacular twist, he had asked to be acquitted and released.
Fateful logic
“Where is Duch today? In which depths has he fallen?” asked civil party lawyer Canonne, wondering about “the fateful logic” followed by the former Khmer rouge.
March 30: two years exactly after Duch’s opening statement before this court. Looking significantly older, he delivers an emotionless and bureaucratic final speech. He looks calm, as if he had perfectly withdrawn into a protected tower by now. He maintains, in an even tone, that he is taking responsibility for the crimes committed at S-21, repeats his apologies and request for forgiveness. But now, he thinks, only the top leaders of the Party, and the leaders of the Cultural Revolution in China who influenced them, should be punished. Duch then takes off his glasses, carefully slips them into his jacket, stands up and walks away. No date has yet been set for a verdict.
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