The defense lawyer for Kaing Khek Iev, known as Duch, expects his client to be
the first ex-member of the Khmer Rouge to come before the Extraordinary Chambers
of the Courts of Cambodia (ECCC).
With an optimistic ECCC again
progressing towards prosecution, legal experts, genocide scholars and sources
close to surviving ex-Khmer Rouge leaders are sounding off about legal
strategies that may be taking shape for other potential defendants.
course, Duch will be the first person to stand for trial, because he was already
arrested," said Ka Savuth, defense attorney for Duch since his arrest in May
1999. "I am just waiting for the trial. I will seek to release Duch on bail as
soon as he is transferred from the Military Court to the ECCC."
has made no indictments, and spokesman Peter Foster declined to comment on
Savuth's speculation. But with ECCC Co-Investigation Judge Marcel LaMonde
predicting that the first case will go before the Trial Chamber by the end of
the year, others agree that the first defendant could be Duch.
of Toul Sleng, Duch can probably be tied more readily to specific acts than can
the others," said John Quigley, author of the The Genocide Convention: An
International Law Analysis and an expert witness at the 1979 People's
Revolutionary Tribunal held in Phnom Penh by the Vietnamese-installed
One source close to the proceedings said Duch is the clear
first choice because his case is the "least political."
comment on who will be the first to stand trial, but if the court indicts Duch,
there must be many other people to stand trial because there were many prisons
the same as S-21," said Sok Sam Eoun, executive director of the Cambodian
Defender's Project. "In my point of view, I think that members of the politburo
of the KR must be investigated, such as Khieu Samphan, Noun Chea, Ieng Sary."
These three are widely regarded as the "most likely" ex-Khmer Rouge to
be tried on charges that may include genocide and crimes against humanity.
"Brother No 2" Nuon Chea, told a Japanese news agency earlier this month
that he will unveil "yet untold secrets" if he is summoned. He has denied
knowledge of the widespread atrocities recorded under the Khmer Rouge regime in
which he served as deputy secretary of the Central Committee. He has said that
he will forego defense counsel and represent himself. Chea is 80, in poor health
and lives near Pailin.
"Nuon Chea may feel that what he has to say can be
best said by him, rather than a lawyer. He will likely try to put what occurred
under the Khmer Rouge in historical context, starting with French colonialism,"
wrote law professor John Quigley, author of the The Genocide Convention: An
International Law Analysis, by e-mail on May 16.
Ieng Sary, Brother No 3,
was issued a Royal Pardon on 1996.
"The pardon is still in place,"
Foster said. "The scope of the pardon in regard to the ECCC has yet to be
determined. It may or may not have legal force and what it covers may not
include things for which he might still be charged."
Cambodian journalist Puy Kea, Sary, 78, is keeping a "low-profile" until the
ECCC determines the scope of his pardon in its May 31 plenary session.
"Sary was a member of the standing committee. He was - at least until
1980, if not later - a key member of the regime, a man whose influence on policy
and its implementation was infintely greater than a simple cog like Duch," wrote
Philip Short, author of "Pol Pot: Anatomy of a Nightmare" in an e-mail on May
16. "To argue that he had no reponsibility for the regime's policies (the
policies that caused the deaths of 1.7 million Cambodians) requires a suspension
of disbelief that would undermine the very basis of the trial."
Sary's possible flight to Cuba from his home in Phnom Penh are patently untrue,
Kea said on May 15.
In August 2006, Khieu Samphan, 75, told the Post that
if summoned by the ECCC, he would be represented by Jacques Verges- a longtime
friend who is perhaps the most controversial defense attorney in the history of
international justice. Verges spent five days with Samphan in 2006 and toured
the ECCC. In past Verges, 82, has represented ex-Nazi war criminal Klaus Barbie
and the Venezuelan terrorist Ilich Ramirez Sanchez, also known as "Carlos the
Experts agree that the participation of Verges will be
characterized by his signature "attack the prosecution" defense tactics.
Although the ECCC does not provide for nations to be implicated in the trial,
Short believes Verges, known as the Devil's Advocate, won't be able to resist.
"He will try to implicate above all the US-and maybe Vietnam, China and
France in that order. Maybe also [retired King] Sihanouk," said Short. "Verges'
main target will be the US. This is a chance to put the US on trail and denounce
the transparent unfairness of trying a few key people and letting all the lower
guys go free. I'm sure he won't miss a trick."