Logo of Phnom Penh Post newspaper Phnom Penh Post - Duch may be first in docket, says lawyer

Duch may be first in docket, says lawyer

Duch may be first in docket, says lawyer

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.

"As head

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."

"We cannot

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."

According to

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."

Rumors of

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."


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