S-21 commandant Kaing Khek Iev, "Duch," before his arrest in 1999.
T he pretrial detention of Kaing Khek Iev, better known by his nom de guerre Duch, is drawing increased criticism from attorneys, analysts and international human rights groups such as Amnesty International.
Duch, former commandant of the Khmer Rouge torture and interrogation center S-21 at Tuol Sleng, has been incarcerated in a military prison without trial since 1999.
A London-based spokesperson for Amnesty International wrote to the Post on December 14 that Article 9 of the International Covenant of Civil and Political Rights (ICCPR), which Cambodia ratified in 1992, guarantees the right of anyone arrested or detained to be brought promptly before a judge or judicial officer and tried within a reasonable time or freed.
"Duch is obviously no exception, and must be allowed to enjoy these basic human rights," the spokesperson said by e-mail. "Even though the case against Duch may be complicated and establishment of the Extraordinary Chambers has been delayed, over six years in pretrial detention is clearly not in compliance with international standards."
And in Phnom Penh, an American legal expert is maintaining that abuses of Duch's basic human rights may present serious problems for prosecutors should he be indicted by the Extraordinary Chambers in the Courts of Cambodia (ECCC).
"This goes directly to the heart of the Khmer Rouge Trials - and whether it's going to operate pursuant to international standards of due process and fair trial," said Jeffrey Kahan, legal adviser to the Cambodian Defenders Project.
"No one wants him to go free, but given the procedural history so far, the ECCC is going to be hard pressed to not address these human rights violations. It's possible they could lead to the charges being dismissed and Duch going free."
Reach Sambath, spokesman for the ECCC, declined to comment on Duch and stressed that the court has yet to make any accusations or indictments.
Duch was apprehended days after he was discovered working under a false identity for an international aid agency by journalist Nic Dunlop along the Thai border. A report by the Documentation Center of Cambodia says there is "massive documentary evidence" connecting Duch to the torture and execution of up to 20,000 prisoners who went through S-21 between 1975 and 1979.
"Duch was arrested because he was linked to killings," said Minister of Information Khieu Kanharith on December 12. "He has never faced an official trial, he is just in detention."
Now, Duch's defense attorney, Ka Savuth, is seeking Duch's immediate release. Savuth says the charges against Duch are unclear, his human rights have been trampled on, and he has languished in pre-trial detention unfairly when former top Khmer Rouge leaders remain free. Further, he says the mandate of the Extraordinary Chambers of the Courts of Cambodia to try only senior leaders of the DK regime, and those judged "most reponsible," should not include Duch.
"Duch is illegally in prison," Savuth told the Post. "Duch was chief of a prison. There were 2,000 prisons at the time in Cambodia. So why only Duch? In the case of Ieng Sary, he is not only free but was given a pardon. Or Khieu Samphan, who was head of state? I am demanding that Duch be set free."
Support for Savuth's legal claims is coming from surprising quarters.
""It's morally, but not legally, perplexing," said Brad Adams, Asia director of Human Rights Watch and formerly a UN legal adviser in Cambodia. "Duch has been held beyond what Cambodia or international law would allow. He should have been charged and almost certainly should have been put on trial by now."
In May 1999, the Military Court charged Duch, and KR commander Ta Mok, with crimes against domestic security and for serving the purposes of the Democratic Kampuchea (DK) regime. Four months later, the Military Court adjusted the charges and indicted Duch on various charges stemming from acts connected to his position as warden of S-21 and a member of the Khmer Rouge.
According to "Inhuman Acts and Inalienable Rights," a paper on legal issues surrounding Duch's detention and recently made public by the CSD's Kahan, charges of crimes against humanity were "made in the military court against Duch specifically pursuant to the EC law enacted the previous year." The EC law governs the jurisdiction of the ECCC and requires the proceedings to comply with the ICCPR.
In 2005, Duch was charged in the Military Court under the EC law with grave breaches of the Geneva Conventions of 1949, also called war crimes and crimes committed against internationally protected persons. As Kahan points out, "For some reasons that are not clear, these charges were not brought at the time the crimes against humanity charge was filed."
"There is a strong case for this charge [crimes against humanity] to be dismissed. Then will the others stand?" Kahan said. "Even if they tacked on new charges in 2005, and the court is still technically within its three-year time frame, the question is: Will those charges still hold given that his right to a speedy trial has been irreparably breached?"
According to Sok Sam Oeun, executive director of the CDP, the Military Court has no authority to imprison Duch. Ney Thol, who also runs the military prison where Duch is imprisoned and serves as a pretrial judge for the ECCC, has been president of the Military Court since 1987.
"I don't know why the Military Court is detaining Duch.," Oeun said. "For a normal crime, if the Military Court detains him for more than six months it is abusing his rights. If it is an international crime he could be detained for three years, but the military court cannot charge him under international law. From a legal perspective, if Duch has not been charged with an international crime and he has been detained this long, his rights are being abused."
Sam Rainsy Party parliamentarian Son Chhay said that the decision to detain only Duch and Ta Mok was a political decision handed down from the highest tiers of the government.
"Duch's imprisonment is strange," Chhay said. "We are also wondering why the military and the government arrested only Ta Mok and Duch, and not Ieng Sary, Khieu Samphan and Noun Chea.
"I think the arrest of Duch and Ta Mok was a political issue rather than a way to find justice for the citizens. Duch and Ta Mok did not defect to the government, while the others did."
Government spokesman Kanharith conceded that those KR leaders who agreed to come in from the cold were granted special concessions.
"When we outlawed the Khmer Rouge in 1994, the government offered the leaders a few months to defect, and if anyone defected we would pardon them," he said on December 13.
"So, since then we haven't arrested [Ieng Sary, Khieu Samphan and Nuon Chea]. But now the new court [ECCC] can use another international law. The international law states that the government does not have the right to pardon anyone, so the court can accuse and arrest Ieng Sary, Khieu Samphan and Nuon Chea."
But CDP's Kahan says that the in the case of Duch, the lengthy pretrial period may have made the ECCC's potential task of prosecuting Duch increasingly difficult.
"If I were Duch's defense counsel or adviser, I would be going to immediately file vigorous motions regarding the charges filed against him," said Kahan, who is a member of both the New York and New Jersey bar associations. "Over pretrial detention and failure to bring him to a speedy trial, I would seek immediate release from detention and dismissal of charges."
According to Adams, the refusal to take Duch to court fits into a broader scheme by a reluctant government that never wanted the Khmer Rouge trials to occur in the first place.
"He could have been charged under Cambodian law, but the government decided to hold off until the Khmer Rouge tribunal was created," Adams said. "The delays in putting Duch on trial have been part of a general pattern of delay by the Cambodian government, exemplified by its obstruction of the adoption of internal rules.
"It is important to point out that Duch as a person deserves no sympathy, as there is clear evidence of his culpability for the deaths of thousands. But the rule of law in Cambodia suffers when anyone's rights are ignored like this. He is entitled to a fair and speedy trial, just like everyone else."