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Bid for release rocks KR case

An audience files in to the Extraordinary Chambers in the Courts of Cambodia on Friday to attend the trial of former Khmer Rouge prison chief Kaing Guek Eav, alias Duch, in Phnom Penh.

Second KRT letter sent to Keat Chhon
International co-investigating judge Marcel Lemonde has sent a second letter asking Finance Minister Keat Chhon to appear to provide testimony at the Khmer Rouge tribunal. In September, Lemonde sent similar letters to five other government officials: Senate President Chea Sim, Foreign Minister Hor Namhong, National Assembly President Heng Samrin and CPP Senators Ouk Bunchhoeun and Sim Ka. UN court spokesman Lars Olsen said the court had not received a response to the second letter, dated October 6 and published Sunday, or to any of the others. He said he did not know whether second letters had been sent to the five other officials. Speaking on behalf of Lemonde, he said, “Since we have not received a refusal, we would still be hopeful that they would cooperate with the court because, as you know, a summons is not an optional thing. It’s an order to appear before the court. We expect at a minimum that if they don’t intend to show up in court, they will provide the court with a reason.” Keat Chhon could not be reached Sunday. Senior CPP lawmaker Cheam Yeap said he did not know whether Heng Samrin would respond to the letter.

LAST week’s round of closing statements in the case of Tuol Sleng prison chief Kaing Guek Eav, alias Duch, was supposed to be a chance for all parties to refine their arguments and address outstanding questions as they put their cases directly to judges for the last time. In the aftermath of Duch’s request for release on Friday, however, a flurry of new questions has emerged, some of them bigger than the case itself.

The bombshell came at the end of Duch’s final monologue before the five-person Trial Chamber, and his Cambodian co-lawyer, Kar Savuth, later clarified that he was seeking an acquittal. It capped three days of disconnect between Kar Savuth and his international counterpart, Francois Roux. Whereas Kar Savuth declared it to be “an appropriate time for the chamber to release my client and allow him to go home”, Roux stuck with the well-established strategy of pressing for a mitigated sentence by emphasising Duch’s cooperation and contrition.

Perhaps the most pressing question is how the judges will respond. Michelle Staggs Kelsall, deputy director of the Asian International Justice Initiative, noted that the request had effectively transformed the case from a nine-month sentencing hearing to one in which, at least in theory, Duch’s guilt is an open question.

“How does the chamber feel about that? I’m sure that if the judges come to the conclusion that they’ve been misled by the defence, then it will be to the detriment of the accused,” she said. “However, if in their deliberations they conclude that the accused had a genuine change of heart at the close of the case, then I think they’re more likely to take a measured response.”

Anne Heindel, a legal adviser for the Documentation Centre of Cambodia (DC-Cam), said the request was “not a helpful development” for Duch.

“As a result of the last-minute acquittal request, [judges] may agree with the prosecution and civil parties that Duch is not taking full responsibility for his actions and place less weight on that factor than they otherwise would have,” she said.

Acting international co-prosecutor William Smith – who earlier in the week cited Duch’s “conditional remorse and the possible effect it may have on national reconciliation” in requesting a 40-year-sentence – told judges on Friday that Duch should be entitled to “no mitigating factors” if he were to ask for an acquittal.

Khmer Rouge scholar Alex Hinton said the ultimate effect of the request on the verdict could be small. “While the shift in Duch’s defence strategy will clearly need to be addressed, the basic facts and contours of the trial have not shifted,” he said. “In the end, I don’t think this sudden turn of events will cause the Trial Chamber significant delay. But Duch probably did not help himself, since the court may well now cast an even more critical eye on his past statements.”

For his part, Roux said Sunday that he hoped the judges would remember Duch’s acceptance of overall responsibility despite the fact that he seemed to disavow any individual guilt in the end.

“I still say that the accused admitted his crimes,” Roux said. “He apologised to the victims, and that should be the memory of this trial. I confirm that Duch has acknowledged his responsibility, and I hope the court will consider it.”

As for the merits of Kar Savuth’s legal arguments, Eric Stover, director of the Human Rights Centre at the University of California-Berkeley, said they amounted to “last-ditch efforts”, adding that they were inconsistent with “what the defence had been arguing all along”.

The tribunal is empowered to try senior leaders and “those most responsible” for Khmer Rouge crimes, and Kar Savuth said several times that Duch did not fall into either category, an assertion Heindel dismissed as erroneous.

“It is clear that the negotiators included the category of ‘most responsible’ in the ECCC law with Duch specifically in mind,” she said. “Although ultimately it is the judges’ decision if he in fact qualifies, if they had any doubts at all I don’t think they would have allowed the trial to reach its conclusion without voicing them.”

The rift and its origins
To most people following the case, the apparent rift between the two lawyers, as well as the mere mention of acquittal, came as a complete surprise. Roux declined to elaborate on the origins of the split Sunday, and Kar Savuth declined to comment at all.

Some said, albeit with the benefit of hindsight, that signs of disagreement could be seen in earlier appearances before the Trial Chamber.

“In retrospect, the seeds of this split could be seen in the opening arguments, when Kar Savuth argued that Duch was not one of the senior leaders or those most responsible,” Hinton said.

Heindel said Kar Savuth’s courtroom demeanor did not always jibe with the defence’s message of remorse.

“I would say he took a more aggressive line with witnesses and victims than Roux,” she said. “It seemed he challenged them more. I couldn’t understand how that helped support a strategy of accepting guilt and being contrite. Roux never did that.”

Hinton and Heindel said the success of the court’s hybrid structure – under which Duch was represented by two co-lawyers instead of a lead lawyer – required cooperation and communication, both of which seemed to be absent last week.

Staggs Kelsall said the breakdown was proof that the system needs changing. “Clearly, there needs to be a lead lawyer on the defence team,” she said. “While it is a benefit to hybrid structures to have as much collaboration as possible between the national and international sides, ultimately, in order to speak with one voice, there needs to be one party taking the lead. You can’t assume that both sides are always going to agree.”

But Stover said it was too early to say whether the system had failed. “I think there’s no need to come to a decision on this now,” he said. “Let’s wait for the verdict and see how the judges have weighed the facts and theories of the case and what the decision is.”




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