There are two very completely different positions being put forward...
THE international and national lawyers for Tuol Sleng prison commandant Kaing Guek Eav, alias Duch, offered conflicting defence strategies in closing statements this week: The former called for a lenient sentence, and the latter demanded Duch’s acquittal and release.
French co-lawyer Francois Roux argued Thursday that Duch’s sentence should be mitigated because he was forced to follow orders issued by top Khmer Rouge leaders while serving as prison chief, and because of his frequently expressed remorse.
Though consistent with the defence strategy employed throughout the trial, Roux’s portion of the defence team’s closing statement contrasted markedly with that of his Cambodian counterpart, Kar Savuth, who on Wednesday challenged the tribunal’s right to try Duch and asked for his acquittal.
“Yes, there was a disagreement in the defence team,” Roux said when reached by phone Thursday evening.
“This disagreement is because Kar Savuth asked the court for Duch to be acquitted. This would mean that Duch is not guilty. However, Duch is guilty. I said to Kar Savuth that this was not in the best interests of our client. The interest of our client is, to me, to consider the remorse and apologies of Duch in the court.”
But Kar Savuth stood by his position, telling the Post: “We are defence lawyers. We are simply protecting the interests of our client by asking the court to free him.”
In their rebuttals, which came after Roux wrapped up the defence’s presentation Thursday afternoon, several civil party lawyers expressed frustration with the seemingly incoherent strategy.
Karim Khan, who represents Civil Parties Group 1, accused Duch of trying “to ride two horses”.
“The events of yesterday cannot be easily swept under the carpet,” he said, referring to Kar Savuth’s remarks on Wednesday. “At the last possible moment yesterday, things changed. In place of what was viewed as a guilty plea in material respects, we heard that, in fact, the accused is seeking to be let free.”
He added: “Your honours, there are two very completely different positions being put forward by the defence that is sitting opposite. This is unfair. It is unfair to the people of Cambodia. It is unfair to the victims. And it is unfair to the search for the truth.”
Silke Studzinsky, who represents Civil Parties Group 2, said Kar Savuth’s remarks amounted to “a slap in the face of the civil parties and, I dare to say, all victims of the regime”, adding that her clients were “shocked”and “stunned” at the request for Duch’s release.
“After the accused and his defence tried to convince the civil parties that his partial admission amounts to a truthful, sincere and genuine confession, civil parties now became even more convinced, beyond any doubt, that the accused was, and is, playing a game.… The time has come to shed the sheep’s clothing,” she said.
Michelle Staggs Kelsall, deputy director of the Asian International Justice Initiative, said the “schism” had cast a cloud of uncertainty over the defence’s entire case.
“It’s obviously a shame, at the end of what was a very coherent and well-argued defence case, to be confronted with a schism in the defence arguments at the eleventh hour that throws their whole case into question,” she said via email. “Obviously, [Duch] cannot essentially plead guilty and expect to be acquitted at the same time, and it is difficult to understand why Kar Savuth thought this strategy would be helpful for his client.”
Heather Ryan, a trial monitor for the Open Society Justice Initiative, also said the conflicting statements posed a challenge for the defence team.
“At this point, having inconsistent arguments from the two counsels about the theory of the case and the request regarding the final judgement, it is a problem for the defence, and I think it undercuts their credibility for the court,” she said.
She noted, though, that it was too early to tell how the split might affect the verdict, which is expected early next year.
ADDITIONAL REPORTING BY NETH PHEAKTRA AND CHEANG SOKHA