The Gate to the Killing Fields
May Angel Bless Your Soul...
Thanks to Khmer New Year, for most Cambodians might have overcome "the gate to the killing fields," 36 years ago.
April 14, 15 and 16 of 1975 were the days that Phnom Penh was surrounded by thousands of Khmer Rouge’s soldiers with black pajama and their Chinese weapons. They were going to triumph over the American backed regime of the Khmer Republic led by General Lon Nol. Their victory was declared on the 17th.
Then a few weeks later the Cambodian Capital became a ghost town where there were, “streets and houses without people.”
36 years seems a long time, but for many of us—the living history tellers-- who survived the worst atrocity in our life, the event was just yesterday.
For me, the horrifying episode of my life recurs yearly as we celebrate the Khmer New Year which falls on the same days of the Khmer Rouge’s victory. My personal inquiry of “why” nearly three millions Khmer people died in a short period of time remains unchanged.
Hundreds of thousand Cambodian people who died before and after the Khmer Rouge era have been completely overlooked. The innocent civilians who were killed by the U.S bombings have also been forgotten and those individuals who were responsible for the atrocity have not been brought to justice. The policy makers, some of them are still alive, have been protected and deliberately shielded.
Some reports claim that from 600,000 to 800,000 Khmer people were killed by American bombing during the five-year war from 1970 to 1975. The exact numbers of Cambodian killed during that period is not known, but given the tonnage of American bombardments and many thousands of American, Chinese and Russian weaponry used inside Cambodia, we can only imagine how many more Khmers had maimed and vanished but were not reported.
Then at least 1,700,000 more were murdered or starved to death by the hand of the Cambodian communists led by Pol Pot, supported by the Chinese and the Vietnamese.
The Khmer Rouge Trial or the KRT in short, is seen as a joke by many observers. Personally, I feel that the trial will not bring any justice to those millions who had died and to their offspring.
Although, the individual “executioners” like Duch (Kaing Gech Iev) and a few others who are named to stand trial-- must be punished, the buck should not stop with them. There must be hidden, untold or undiscovered people and causes that led to the mass killing.
The next wave of killings was during the Vietnamese invasion. Vietnam claims it had sacrificed 50,000 of Vietnamese soldiers to liberate Cambodians from the horrible crime committed by their former ally—the Khmer Rouge. However, the numbers of Cambodian soldiers on all sides and civilians who were executed under the Vietnamese control were not counted. Thousands of unarmed workers were sent to different dangerous war zones and most of them were killed.
While we celebrate our Khmer New Year on the 14, 15 and the 16th day of April--I would like to offer these days as the days to remember those who were victimized by the hands of the “executioners” and those “policy makers.” My heart goes out to those forgotten souls.
While we enjoy this holiday season, may your soul rest in peace.
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Wednesday 13 April RNW - News and analysis from the Netherlands in 10 languages, worldwide 24/7 on radio, television and online
Last and flat: Duch's appeal at Cambodia tribunal
Published on : 13 April 2011 - 10:00am | 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, 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.
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.
By Thierry Cruvellier, Phnom Penh
Wearing a beige jacket, blue shirt and grey pants, Duch, 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.
==================
The Eccentricity of Evil: A Khmer Rouge Leader Goes on Trial
http://www.theatlantic.com/international/archive/2011/04/the-eccentricity-of-evil-a-khmer-rouge-leader-goes-on-trial/237179/By
How did a math teacher come to help orchestrate one of the worst genocides since the Holocaust?
Kaing Guek Eav, best known by the revolutionary alias Duch, is also a war criminal and mass killer. He has freely admitted he was responsible for the murder of over 12,000 people as head of the Khmer Rouge secret police and commandant of the S-21 security center, where perceived enemies of the regime were sent to be tortured into submission and "smashed." Over two years and ten months at the helm of the notorious prison, Comrade Duch ordered his captives to be waterboarded, their genitals electrocuted, and their toenails pulled out before sending nearly all of them, blindfolded, to be stabbed in the neck or clubbed to death in a field outside of Phnom Penh.
The case initially looked like a slam dunk -- a simple trial that could be wrapped up fast, initiating a cathartic national discussion in a country that was mired in civil war with the Khmer Rouge until 1998. The evidence against Duch, after all, was overwhelming: when the Khmer Rouge fled Phnom Penh in January 1979, Duch--a compulsive record-keeper -- left behind thousands of forced confessions that he had annotated in red ink: "beat her 40 times with the rattan stick," "medical experiment," "smash them to pieces." In the confessions, known as "autobiographies," Duch's prisoners inevitably admit to being agents of the KGB, CIA or the Vietnamese government and to having undermined the regime's radical plans for agricultural productivity and social harmony. The documents are mesmerizing today for their utter implausibility (one 19-year-old nurse, after being tortured, claimed the CIA had sent her on a mission to defecate in the operating theater of a Phnom Penh military hospital).
It was partly because of this extensive evidence that the UN-backed Khmer Rouge tribunal--established in 2006 to try senior leaders of the Khmer Rouge regime and "those most responsible" for crimes committed under it--decided to prosecute Duch first. The regime's four top living leaders--including "Brother Number 2" Nuon Chea and Foreign Minister Ieng Sary--remain in jail awaiting the beginning of their own trial this summer. They are all older and frailer than Duch, further removed from the killings, and far less contrite, having largely denied the accusations against them.
Duch's trial, which unfolded over the course of nine months in 2009, at first proceeded smoothly. Following a strategy devised by Francois Roux, his French defense lawyer and an experienced practitioner of judicial stagecraft, Duch apologized to his victims dozens of times, sometimes in dramatically self-lacerating fashion.
Under Roux's tutelage, Duch cried in court, made a tearful pilgrimage to the Killing Fields, and even--after an extended and theatrical courtroom dialogue with his lawyer--invited victims to visit him in his jail cell. It was an elaborate defense modeled on the precedent of Albert Speer--the Nazi architect who escaped a death sentence at Nuremberg because of his acceptance of moral responsibility.
Throughout the trial, Duch systematically upstaged everyone with his extraordinarily active participation in his own defense, and his odd zeal for setting the record straight, even at his own expense. Never deviating from a math-teacherish uniform of slacks and button-down shirts, he offered the court extensive commentary and analysis on his own life and character, and at times made helpful corrections -- serving variously as historian, analyst, mathematician, expert witness, character witness and trial monitor.
Nearly every day he would rise, clutching a binder full of the court documents and mimeographed S-21 confessions he had been poring over, to highlight inaccuracies in witness testimony, correct the courtroom translators, or admonish lawyers for repetitive questioning. He frequently recited eight-digit documentation ID numbers from memory, while some lawyers struggled to produce the numbers at all.
Inexact figures seemed to irk him in particular. When a prosecutor referred to a length of time as "26 or 27 years," Duch retorted, "Could you please make a proper mathematical calculation?" Earlier, he told judges that had selected his revolutionary name from a children's book about a very obedient child called Duch. "I liked the name Duch because I wanted to be a well-disciplined boy who respected the teachers, who wanted to do good deeds," he said. He was in his mid-20s at the time.
Duch explained to the court that he was chosen to be a prison chief because of his ability "to pay attention to whatever I was assigned to do meticulously." "In my entire life, if I do something I'll do it properly," he said.
The Open Society Justice Initiative wrote in a report on the trial, "Duch's behavior at trial again displayed a desire to be seen as exceedingly cooperative with the court, as if he were attempting to exchange his old role with that of the perfect defendant." A particularly telling moment, the report continued, "occurred when Duch thanked expert David Chandler for praising his professionalism in running S-21, seemingly still believing that professionalism in the running of a torture and execution camp was a high compliment."
Out of hundreds of hours of testimony from prison survivors, experts, and Duch himself, a clear and unnerving portrait of him emerged: this killer of thousands was, above all else, a good student. It seems to have been this quality, rather than greed or blood lust or even pure revolutionary fervor, that drove him to manage operations at S-21 so carefully, so meticulously, that only a handful of prisoners survived.
That's why everyone was stunned when, on the 77th and last day of his trial, Duch took on the most unlikely role of all: the bad student.
When called upon to give a final statement, he abruptly abandoned Roux's strategy of remorse and, and instead demanded that the court release and acquit him. Duch's behavior and public statements up to this point had been as good as a guilty plea, and his trial had seemed to be headed toward a predictable ending: a commuted sentence in exchange for cooperation, contrition and conversation.
But instead of apologizing once again to his victims, he launched into a dry, technical discourse on the history of the Communist Party in Cambodia and its leaders--which did not include him. He said that as he was not a senior leader he could not have been "most responsible" for crimes committed at S-21. He asked to be acquitted in the name of national reconciliation--the favored buzzword here for the process of integrating former Khmer Rouge cadres into Cambodian society.
Stunned judges asked him to clarify his statement. He obeyed: "I would like the chamber to release me."
Duch subsequently fired Roux and tried to replace him with a Chinese lawyer who understood Communism (Defendants at the tribunal, which is jointly administered by the Cambodian government and the UN, have the right to one local and one international lawyer). When a Chinese defender could not be procured, he engaged a second Cambodian. Together, the new defense team has pursued a one-note legal strategy: insisting over and over again that Duch was a mid-level cadre and therefore should not be prosecuted.
In July 2010, the tribunal found Duch guilty of war crimes and crimes against humanity, sentencing him to 35 years in prison. (Due to mitigating circumstances and time served, he will spend less than 19 years in jail; prosecutors have called this figure "manifestly inadequate.")
Late last month, appeal hearings were held, bringing Duch before the court once again. Reading from copious handwritten notes and once again deftly reciting long strings of document ID numbers, he argued on his behalf better than his own bumbling lawyers, urging judges to release him "for the sake of national reconciliation among my people."
"You must...seek justice and truth for the Cambodian people as well as for the former Khmer Rouge soldiers and cadres, especially the middle class who do not fall within the jurisdiction of this tribunal," he concluded.
It was a poor legal argument, but one that was cleverly phrased to echo the government's stance on the tribunal: that, in the name of national reconciliation, no further prosecutions will be allowed to take place, period. Hun Sen, Cambodia's strongman prime minister, who was himself a Khmer Rouge cadre before internal purges prompted him to flee to Vietnam in 1977, announced in 2009 that more trials could revive the civil war and kill "200,000 to 300,000 people."
Although United Nations prosecutors have identified five additional suspects they would like to see tried for genocide and war crimes, those cases have been stalled in the tribunal's investigation chamber, hindered by the fact that Cambodian staff refuse to participate in them. Court observers say the cases are likely to be dismissed soon.
Out of paranoia or pride, the government has also refused to allow several top officials who are former mid-ranking members of the Khmer Rouge to give evidence before the tribunal, although none of them has been implicated in crimes. Hun Sen flatly told visiting UN Secretary-General Ban Ki-moon in October that no new trials would be permitted. Neither Mr Ban nor the international community, which funds the court's multi-million dollar budget, seemed to particularly care.
Because of all this behind-the-scenes political wrangling, Duch's dramatic change of stance has raised persistent whispers that he may now be taking orders from someone else--especially since his lead Cambodian counsel, Kar Savuth, also happens to be Hun Sen's family lawyer. But a large part of his turnabout can likely be attributed to his idiosyncratic personality. With his penchant for calculation, astonishing head for detail, and incapacity to process human emotion, he often comes across as mildly autistic. Decades after he committed his crimes, Duch is still unable to understand how the behaviors he values most--dedication to a higher cause, unfailing obedience to superiors, and pride in a job well done--can be entirely wrong.
Given his defiant new stance, his victims are unlikely to get the contrition they seek. But thanks to Duch¹s loquacity throughout the trial, and his obsession with getting the facts right, Cambodia and the world have gleaned not just a fuller understanding of the machinery of death he headed, but also a portrait of one brutal regime's slavishly obedient, ferociously meticulous executioner.
Ho New/Reuters
If a courtroom is a theater, the star of the show at Cambodia's Khmer Rouge tribunal for the past two years has been a gaunt and balding former math teacher whose favorite word to describe himself is "meticulous."Kaing Guek Eav, best known by the revolutionary alias Duch, is also a war criminal and mass killer. He has freely admitted he was responsible for the murder of over 12,000 people as head of the Khmer Rouge secret police and commandant of the S-21 security center, where perceived enemies of the regime were sent to be tortured into submission and "smashed." Over two years and ten months at the helm of the notorious prison, Comrade Duch ordered his captives to be waterboarded, their genitals electrocuted, and their toenails pulled out before sending nearly all of them, blindfolded, to be stabbed in the neck or clubbed to death in a field outside of Phnom Penh.
The case initially looked like a slam dunk -- a simple trial that could be wrapped up fast, initiating a cathartic national discussion in a country that was mired in civil war with the Khmer Rouge until 1998. The evidence against Duch, after all, was overwhelming: when the Khmer Rouge fled Phnom Penh in January 1979, Duch--a compulsive record-keeper -- left behind thousands of forced confessions that he had annotated in red ink: "beat her 40 times with the rattan stick," "medical experiment," "smash them to pieces." In the confessions, known as "autobiographies," Duch's prisoners inevitably admit to being agents of the KGB, CIA or the Vietnamese government and to having undermined the regime's radical plans for agricultural productivity and social harmony. The documents are mesmerizing today for their utter implausibility (one 19-year-old nurse, after being tortured, claimed the CIA had sent her on a mission to defecate in the operating theater of a Phnom Penh military hospital).
It was partly because of this extensive evidence that the UN-backed Khmer Rouge tribunal--established in 2006 to try senior leaders of the Khmer Rouge regime and "those most responsible" for crimes committed under it--decided to prosecute Duch first. The regime's four top living leaders--including "Brother Number 2" Nuon Chea and Foreign Minister Ieng Sary--remain in jail awaiting the beginning of their own trial this summer. They are all older and frailer than Duch, further removed from the killings, and far less contrite, having largely denied the accusations against them.
Duch's trial, which unfolded over the course of nine months in 2009, at first proceeded smoothly. Following a strategy devised by Francois Roux, his French defense lawyer and an experienced practitioner of judicial stagecraft, Duch apologized to his victims dozens of times, sometimes in dramatically self-lacerating fashion.
Under Roux's tutelage, Duch cried in court, made a tearful pilgrimage to the Killing Fields, and even--after an extended and theatrical courtroom dialogue with his lawyer--invited victims to visit him in his jail cell. It was an elaborate defense modeled on the precedent of Albert Speer--the Nazi architect who escaped a death sentence at Nuremberg because of his acceptance of moral responsibility.
Throughout the trial, Duch systematically upstaged everyone with his extraordinarily active participation in his own defense, and his odd zeal for setting the record straight, even at his own expense. Never deviating from a math-teacherish uniform of slacks and button-down shirts, he offered the court extensive commentary and analysis on his own life and character, and at times made helpful corrections -- serving variously as historian, analyst, mathematician, expert witness, character witness and trial monitor.
Nearly every day he would rise, clutching a binder full of the court documents and mimeographed S-21 confessions he had been poring over, to highlight inaccuracies in witness testimony, correct the courtroom translators, or admonish lawyers for repetitive questioning. He frequently recited eight-digit documentation ID numbers from memory, while some lawyers struggled to produce the numbers at all.
Inexact figures seemed to irk him in particular. When a prosecutor referred to a length of time as "26 or 27 years," Duch retorted, "Could you please make a proper mathematical calculation?" Earlier, he told judges that had selected his revolutionary name from a children's book about a very obedient child called Duch. "I liked the name Duch because I wanted to be a well-disciplined boy who respected the teachers, who wanted to do good deeds," he said. He was in his mid-20s at the time.
Duch explained to the court that he was chosen to be a prison chief because of his ability "to pay attention to whatever I was assigned to do meticulously." "In my entire life, if I do something I'll do it properly," he said.
The Open Society Justice Initiative wrote in a report on the trial, "Duch's behavior at trial again displayed a desire to be seen as exceedingly cooperative with the court, as if he were attempting to exchange his old role with that of the perfect defendant." A particularly telling moment, the report continued, "occurred when Duch thanked expert David Chandler for praising his professionalism in running S-21, seemingly still believing that professionalism in the running of a torture and execution camp was a high compliment."
Out of hundreds of hours of testimony from prison survivors, experts, and Duch himself, a clear and unnerving portrait of him emerged: this killer of thousands was, above all else, a good student. It seems to have been this quality, rather than greed or blood lust or even pure revolutionary fervor, that drove him to manage operations at S-21 so carefully, so meticulously, that only a handful of prisoners survived.
That's why everyone was stunned when, on the 77th and last day of his trial, Duch took on the most unlikely role of all: the bad student.
When called upon to give a final statement, he abruptly abandoned Roux's strategy of remorse and, and instead demanded that the court release and acquit him. Duch's behavior and public statements up to this point had been as good as a guilty plea, and his trial had seemed to be headed toward a predictable ending: a commuted sentence in exchange for cooperation, contrition and conversation.
But instead of apologizing once again to his victims, he launched into a dry, technical discourse on the history of the Communist Party in Cambodia and its leaders--which did not include him. He said that as he was not a senior leader he could not have been "most responsible" for crimes committed at S-21. He asked to be acquitted in the name of national reconciliation--the favored buzzword here for the process of integrating former Khmer Rouge cadres into Cambodian society.
Stunned judges asked him to clarify his statement. He obeyed: "I would like the chamber to release me."
Duch subsequently fired Roux and tried to replace him with a Chinese lawyer who understood Communism (Defendants at the tribunal, which is jointly administered by the Cambodian government and the UN, have the right to one local and one international lawyer). When a Chinese defender could not be procured, he engaged a second Cambodian. Together, the new defense team has pursued a one-note legal strategy: insisting over and over again that Duch was a mid-level cadre and therefore should not be prosecuted.
In July 2010, the tribunal found Duch guilty of war crimes and crimes against humanity, sentencing him to 35 years in prison. (Due to mitigating circumstances and time served, he will spend less than 19 years in jail; prosecutors have called this figure "manifestly inadequate.")
Late last month, appeal hearings were held, bringing Duch before the court once again. Reading from copious handwritten notes and once again deftly reciting long strings of document ID numbers, he argued on his behalf better than his own bumbling lawyers, urging judges to release him "for the sake of national reconciliation among my people."
"You must...seek justice and truth for the Cambodian people as well as for the former Khmer Rouge soldiers and cadres, especially the middle class who do not fall within the jurisdiction of this tribunal," he concluded.
It was a poor legal argument, but one that was cleverly phrased to echo the government's stance on the tribunal: that, in the name of national reconciliation, no further prosecutions will be allowed to take place, period. Hun Sen, Cambodia's strongman prime minister, who was himself a Khmer Rouge cadre before internal purges prompted him to flee to Vietnam in 1977, announced in 2009 that more trials could revive the civil war and kill "200,000 to 300,000 people."
Although United Nations prosecutors have identified five additional suspects they would like to see tried for genocide and war crimes, those cases have been stalled in the tribunal's investigation chamber, hindered by the fact that Cambodian staff refuse to participate in them. Court observers say the cases are likely to be dismissed soon.
Out of paranoia or pride, the government has also refused to allow several top officials who are former mid-ranking members of the Khmer Rouge to give evidence before the tribunal, although none of them has been implicated in crimes. Hun Sen flatly told visiting UN Secretary-General Ban Ki-moon in October that no new trials would be permitted. Neither Mr Ban nor the international community, which funds the court's multi-million dollar budget, seemed to particularly care.
Because of all this behind-the-scenes political wrangling, Duch's dramatic change of stance has raised persistent whispers that he may now be taking orders from someone else--especially since his lead Cambodian counsel, Kar Savuth, also happens to be Hun Sen's family lawyer. But a large part of his turnabout can likely be attributed to his idiosyncratic personality. With his penchant for calculation, astonishing head for detail, and incapacity to process human emotion, he often comes across as mildly autistic. Decades after he committed his crimes, Duch is still unable to understand how the behaviors he values most--dedication to a higher cause, unfailing obedience to superiors, and pride in a job well done--can be entirely wrong.
Given his defiant new stance, his victims are unlikely to get the contrition they seek. But thanks to Duch¹s loquacity throughout the trial, and his obsession with getting the facts right, Cambodia and the world have gleaned not just a fuller understanding of the machinery of death he headed, but also a portrait of one brutal regime's slavishly obedient, ferociously meticulous executioner.
