Appeals in the case of former S-21 prison chief Kaing Guek Eav began at the Khmer Rouge tribunal yesterday with a contentious debate on the court’s jurisdiction and its right to try the accused, better known as Duch.
Prosecutors, the defence and civil party lawyers have all appealed the original judgment handed down last July, in which Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions and sentenced to 30 years prison. Yesterday’s proceedings focused on the defence appeal, with lawyers Kar Savuth and Kang Ritheary charging that Duch falls outside the court’s mandate to prosecute “senior leaders” and those “most responsible” for crimes committed under Democratic Kampuchea.
In a rambling and often incoherent address at the outset of the hearing, Kar Savuth accused the tribunal of violating Cambodian law in its decision to try Duch, referencing documents including the 1991 Paris Peace Agreements and the 1994 Law to Outlaw the Democratic Kampuchea Group that he said restrict prosecutions of Khmer Rouge cadres.
“When there was a dispute between Thailand and Cambodia at the border, there was an appeal to the international community to really force Thailand to respect the law,” Kar Savuth said, drawing chuckles from the gallery. “When Thailand does not really respect these regulations, we say that Thailand is behaving unlawfully, and we believe that this tribunal would not really follow the footsteps of Thailand.”
Kar Savuth later added that because the Khmer Rouge were “lawless”, “whatever any individual did was not against the law”. He also questioned why former KR standing committee members So Phim and Ta Mok had not been identified as suspects by the court.
Ta Mok was arrested in 1999 before dying in custody in 2006. So Phim committed suicide in 1978.
Both Kar Savuth and Kang Ritheary also questioned why Duch could be considered one of those “most responsible” when the dozens of other prison chiefs of the DK era had not been arrested as well.
“Duch [was] merely the chief of a prison, similar to the 195 chiefs of prisons throughout Cambodia,” Kar Savuth said, adding that many former KR officials had been peacefully reintegrated into the government without facing charges.
“Even now at the Ministry of Defence, there are former Khmer Rouge cadres who have rank and status,” he said.
Terith Chy, head of the Victim Participation Project at the Documentation Centre of Cambodia, said the defence arguments were “probably more for the crowd than for the judges”.
“That’s our worry.... [that] people might buy what Kar Savuth has said, because he’s such a character, but we feel that these are not the legal arguments that [a] judge is looking for,” Terith Chy said.
“It’s obvious it’s unfair, why just one prison chief is prosecuted and why not others, but looking from the available evidence at the court, looking at the gravity of what happened in Tuol Sleng, looking at the responsibility of Duch ... he’s the type of person to be prosecuted.”
Co-prosecutor Chea Leang said the jurisdictional challenge was illegitimate since it had not been raised during the initial hearing as required by court rules. That aside, she said Duch was clearly one of those “most responsible” for Khmer Rouge crimes.
“The policy of the Communist Party of Kampuchea was implemented by the security centres, and the security apparatus was the heart of the policy of the CPK in smashing enemies,” she said. “S-21 was the most important office in this apparatus.”
Civil party lawyer Martine Jacquin added that Duch had “full control over the actions of his subordinates and over everything that happened at S-21”, a facility in which nearly all of the perhaps 14,000 people who entered were eventually killed.
The accused himself spoke only briefly at the beginning of the hearing, telling the court that he authorised his lawyers to act on his behalf. Wearing a white jacket over a button-down shirt, he appeared frail and at times did not seem to be paying attention to the proceedings.
Eng Try, 56, of Kampong Cham province, said outside the court that he had lost his parents and six siblings to the Khmer Rouge and strongly opposed the defence team’s bid for acquittal.
“My suffering from the Khmer Rouge regime is tremendous. He should serve life imprisonment,” Eng Try said.
Prosecutors requested in their appeal that Duch receive a 45-year jail term, commuted from life in prison because of his excessive pre-trial detention. This issue will be discussed when the tribunal reconvenes today.