Kaing Guek Eav, alias Duch, on Friday asked judges at the Khmer Rouge tribunal to release him, and his lawyer later clarified that the former chief of Tuol Sleng prison was seeking an acquittal on war crimes and crimes against humanity charges.
Duch’s surprise request came at the end of a 17-minute statement, his last before the Trial Chamber, during which he acknowledged his involvement in Khmer Rouge-era crimes, including the execution of more than 12,000 Tuol Sleng prisoners, but said they were committed by a “criminal party”.
“I still maintain my position that I am responsible for the crimes as the member of the criminal party,” he said. “At the beginning, I thought that the party would be a decent one, but later on it was the criminal party, and I was part of the party.”
Duch also noted that he had served more than 10 years in detention, and stressed that he had been fully cooperative with the tribunal.
“So I would ask the chamber to release me. I’m very grateful, your honours,” he concluded.
During a press conference held immediately after Duch’s announcement, prosecutors and civil party lawyers expressed their shock at what appeared to be an abrupt about-face. Throughout six months of evidentiary hearings, Duch’s lawyers repeatedly stressed that their client’s apologies and professions of remorse were genuine, and Duch at one point invited Cambodians to hold him to the “highest level of punishment”.
International co-prosecutor William Smith said the request for an acquittal cast further doubt on the sincerity of Duch’s remorse. “The fact that he entered an acquittal reinforces in our mind that the remorse is limited,” he said.
Prosecutors earlier this week urged judges to give Duch a 40-year sentence. Though arguing that the gravity of his crimes warranted a life sentence, they said this should be converted to a 45-year sentence because of the nature of Duch’s pre-trial detention, which the Trial Chamber ruled in June had been unlawful. Smith also said Duch should have five years knocked off for “general cooperation, limited acceptance of responsibility, his conditional remorse and the possible effect it may have on national reconciliation”.
On Friday, though, Smith told judges that Duch would be entitled to “no mitigating factors” if he requested an acquittal. He seemed to back away from that statement during the press conference, saying only that prosecutors “would’ve had some discussions in the office” had they known Duch was going to ask to be set free.
Duch’s request enraged at least one Tuol Sleng survivor: civil party Bou Meng, who in July described for judges how he had been subjected to torture and how Duch had at one point instructed him to fight another detainee while he watched.
“I could not accept the request for the release by Duch, because many people, including my wife, have been killed during the Khmer Rouge time,” Bou Meng said as he stormed out of the public gallery. “He cannot step on the victims like this.”
A muddied defence
The bulk of Friday’s hearing was spent clearing up the confusion that resulted from conflicting closing statements made earlier in the week by Duch’s two defence lawyers.
National co-lawyer Kar Savuth on Wednesday demanded his client’s acquittal and release, but his international counterpart, Francois Roux, on Thursday pressed judges to hand down a lenient sentence.
Roux told the Post Thursday that there had been a disagreement in the defence team, explaining that while he had wanted to use the closing statement to emphasise Duch’s repeated apologies and professions of remorse, Kar Savuth had instead insisted on arguing that Duch should not have been tried in the first place.
In his rebuttal Friday morning, Smith complained that prosecutors and civil parties had, until Wednesday, been operating under the assumption that Duch was expecting to be found guilty, adding that they had “been grossly misled by the defence”. He then demanded that the Trial Chamber clarify whether Kar Savuth’s request for an acquittal had been ordered by Duch himself.
Trial President Nil Nonn told the defence lawyers to clarify their positions on the verdict, but the division between them still seemed to be in place during their rebuttals.
As he did on Wednesday, Kar Savuth argued that Duch did not fall within the tribunal’s jurisdiction, which empowers it to try “senior leaders” and “those most responsible” for Khmer Rouge crimes. He also downplayed Tuol Sleng’s importance within the Khmer Rouge prison network, saying at one point that there were other prisons in which more than 100,000 people were killed, including one in Pursat province that claimed 200,000 lives.
“I would not like to pinpoint that prison because I haven’t got the supporting documents,” he said. “Still, I’m convinced there were more prisons in Cambodia in which more prisoners were killed.”
He went on to say that Duch “should be free” from prosecution.
“Duch has been detained for 10 years,” he said. “Other chiefs of prisons have not been detained, so I think it is an appropriate time that the chamber release my client and allows him to go home.”
But Roux again stressed mitigating factors he said the court should consider when issuing a verdict, including his assertions that Duch had acted under duress during the regime years and that he had fully cooperated with the tribunal.
At the end of the defence rebuttal, Smith demanded, again, that the defence team clarify whether Duch had asked his lawyers to request an acquittal, prompting Roux to assert that the term acquittal had not been used.
“I’m sorry the prosecutor was not listening to us closely enough,” he said. “Acquittal was not used this morning. This word was not used. Both defence lawyers asked that the accused’s sentence, were he to be found guilty, should be reduced and that he should be freed as soon as possible. It is not an acquittal.”
He added that Duch “should be freed after being imprisoned for 10 years and after fully recognising his responsibility for the crimes in S-21”.
But when Nil Nonn put the question of acquittal to Duch, the prison chief deferred to Kar Savuth, who at first did not answer directly. When asked again by Judge Silvia Cartwright whether Duch was seeking an acquittal, though, Kar Savuth responded: “I did say that because release means acquittal.”
Roux suggests political interference
Roux said the last-minute change of heart by Duch and his local defence lawyer was a surprise.
“It was completely unexpected, a moment of spontaneity. It was a complete, bad surprise,” Roux said.
But he said the move was also linked to Cambodian political interference in the trial, noting that Prime Minister Hun Sen has previously said that he hoped the tribunal would fail.
“This (Duch's appeal for release) calls into question Duch's plea of culpability, but also the competence of the court,”he said.
ADDITIONAL REPORTING BY AFP AND CHEANG SOKHA