International Herald Tribune
By Peter Maguire
Published: February 12, 2009
Last week, the controversy-plagued UN-Cambodian war crimes court announced that the trial of Khmer Rouge prison camp commandant Kaing Guek Eav, better known as "Brother Duch," would begin in March.
Almost as an afterthought, the court added that proceedings against the regime's political leaders, Ieng Sary, Noun Chea, and Khieu Samphan - the cases that will make or break these proceedings - would be delayed for yet another year.
While it is heartening to see Cambodia's war-crimes tribunal do something other than field pre-trial motions, Duch is a garden variety war criminal who could be quickly and easily convicted by a basic military tribunal for his well documented violations of basic human rights norms.
If Cambodia's unwieldy mixed tribunal cannot speedily convict this bloodstained butcher, it stands no chance in the cases against the well-defended and unrepentant Khmer Rouge leaders, whose legal guilt is far more difficult to prove.
Duch, although a key functionary, was not a policy maker. The former teacher lorded over a prison, Tuol Sleng, that 16,000-20,000 entered and less than 20 survived. Before prisoners were killed, most were photographed, tortured and interrogated. When the Vietnamese liberated the prison in 1979, a large portion of these meticulous photographic and documentary records were recovered. Even guards at Tuol Sleng feared for their lives - according to prison records, over 500 guards and staff members were killed for such seditious acts as breaking a shovel, screaming in their sleep or destroying a hornet's nest.
Duch told his staff at one meeting in 1976, "Kindness is misplaced. You must beat him to get at the deep things." A former Tuol Sleng guard and alleged "killing fields" executioner, Him Huy, told me in 1998 that if Duch ordered the killings of high ranking prisoners, he "also went with us to check."
Once the paperwork was complete and the executioners had "gathered their strength," Huy told me, the victims were "ordered to knee on the edge of the hole. Their hands cuffed behind them, then they were beaten on their nape with an oxcart axle - an iron tube."
When I asked Tuol Sleng survivor Bou Meng in 2003 what he would say to Duch if given the chance, he began to fish through his pocket and pulled out a photograph of a young woman. It was his wife, who had been killed at the prison. Bou Meng had found her photograph in the prison archive the day before.
"She was tortured and killed," he said as tears began to well in his eyes, "I would demand the return of my wife and child."
Unlike the Khmer Rouge political leaders who continue to deny knowledge of atrocities and even of Tuol Sleng Prison, Duch is now an evangelical Christian who has stoically accepted his fate, admitted his guilt, and taken responsibility for his actions.
"I am sorry," Duch told Nic Dunlop, the journalist who found him in 1999, "The people who died were good people."
Today, the former Tuol Sleng Prison chief freely admits that many of the prisoners were innocent. But he adds, "whoever was arrested had to die. It was the rule of the party."
However salacious the gory details of the Duch case might be, it is legally and politically simple. Some speculate that the Cambodian government is serving up this easily convicted thug as a sacrificial lamb in the hopes that the other over-80 defendants won't live long enough to see the inside of the courtroom. If nothing else, we might finally learn whether or not there were "Chinese advisors" inside Tuol Sleng.
The announcement of the start of the Duch trial was quickly overshadowed by UN prosecutor Robert Petit's decision to open new criminal investigations and possibly issue more indictments.
Given that Cambodia's mixed tribunal has already burned through its original budget and taken longer to erect a court than it took the United States, Britain and France to try more than 6,000 suspected war criminals in Europe and Asia after World War II, Petit's announcement was oddly presumptuous.
It did not take the Cambodian co-prosecutor Chea Leang (niece of Deputy Prime Minister Sok An) long to reject the move on both practical and political grounds. If nothing else, the UN's attempt to broaden this criminal inquiry will serve both as a test of the mixed tribunal's legitimacy and its ability to function as a court.
For many years, Cambodian Prime Minister Hun Sen was firmly in control of these proceedings, but by opening further criminal investigations, the UN has challenged his control. What remains to be seen is whether or not the Cambodian prime minister has the political will to try the Khmer Rouge political leaders.
If nothing else, the Cambodian strongman and his minions at the mixed tribunal are quickly learning a point best made by German political theorist Otto Kircheimer in his classic 1961 study, "Political Justice": "Justice in political matters is more tenuous than in any other field of jurisprudence, because it can so easily become a mere farce."
Peter Maguire, author of "Law and War: An American Story" and "Facing Death in Cambodia," has taught the law and theory of war at Columbia University and Bard College.
By Peter Maguire
Published: February 12, 2009
Last week, the controversy-plagued UN-Cambodian war crimes court announced that the trial of Khmer Rouge prison camp commandant Kaing Guek Eav, better known as "Brother Duch," would begin in March.
Almost as an afterthought, the court added that proceedings against the regime's political leaders, Ieng Sary, Noun Chea, and Khieu Samphan - the cases that will make or break these proceedings - would be delayed for yet another year.
While it is heartening to see Cambodia's war-crimes tribunal do something other than field pre-trial motions, Duch is a garden variety war criminal who could be quickly and easily convicted by a basic military tribunal for his well documented violations of basic human rights norms.
If Cambodia's unwieldy mixed tribunal cannot speedily convict this bloodstained butcher, it stands no chance in the cases against the well-defended and unrepentant Khmer Rouge leaders, whose legal guilt is far more difficult to prove.
Duch, although a key functionary, was not a policy maker. The former teacher lorded over a prison, Tuol Sleng, that 16,000-20,000 entered and less than 20 survived. Before prisoners were killed, most were photographed, tortured and interrogated. When the Vietnamese liberated the prison in 1979, a large portion of these meticulous photographic and documentary records were recovered. Even guards at Tuol Sleng feared for their lives - according to prison records, over 500 guards and staff members were killed for such seditious acts as breaking a shovel, screaming in their sleep or destroying a hornet's nest.
Duch told his staff at one meeting in 1976, "Kindness is misplaced. You must beat him to get at the deep things." A former Tuol Sleng guard and alleged "killing fields" executioner, Him Huy, told me in 1998 that if Duch ordered the killings of high ranking prisoners, he "also went with us to check."
Once the paperwork was complete and the executioners had "gathered their strength," Huy told me, the victims were "ordered to knee on the edge of the hole. Their hands cuffed behind them, then they were beaten on their nape with an oxcart axle - an iron tube."
When I asked Tuol Sleng survivor Bou Meng in 2003 what he would say to Duch if given the chance, he began to fish through his pocket and pulled out a photograph of a young woman. It was his wife, who had been killed at the prison. Bou Meng had found her photograph in the prison archive the day before.
"She was tortured and killed," he said as tears began to well in his eyes, "I would demand the return of my wife and child."
Unlike the Khmer Rouge political leaders who continue to deny knowledge of atrocities and even of Tuol Sleng Prison, Duch is now an evangelical Christian who has stoically accepted his fate, admitted his guilt, and taken responsibility for his actions.
"I am sorry," Duch told Nic Dunlop, the journalist who found him in 1999, "The people who died were good people."
Today, the former Tuol Sleng Prison chief freely admits that many of the prisoners were innocent. But he adds, "whoever was arrested had to die. It was the rule of the party."
However salacious the gory details of the Duch case might be, it is legally and politically simple. Some speculate that the Cambodian government is serving up this easily convicted thug as a sacrificial lamb in the hopes that the other over-80 defendants won't live long enough to see the inside of the courtroom. If nothing else, we might finally learn whether or not there were "Chinese advisors" inside Tuol Sleng.
The announcement of the start of the Duch trial was quickly overshadowed by UN prosecutor Robert Petit's decision to open new criminal investigations and possibly issue more indictments.
Given that Cambodia's mixed tribunal has already burned through its original budget and taken longer to erect a court than it took the United States, Britain and France to try more than 6,000 suspected war criminals in Europe and Asia after World War II, Petit's announcement was oddly presumptuous.
It did not take the Cambodian co-prosecutor Chea Leang (niece of Deputy Prime Minister Sok An) long to reject the move on both practical and political grounds. If nothing else, the UN's attempt to broaden this criminal inquiry will serve both as a test of the mixed tribunal's legitimacy and its ability to function as a court.
For many years, Cambodian Prime Minister Hun Sen was firmly in control of these proceedings, but by opening further criminal investigations, the UN has challenged his control. What remains to be seen is whether or not the Cambodian prime minister has the political will to try the Khmer Rouge political leaders.
If nothing else, the Cambodian strongman and his minions at the mixed tribunal are quickly learning a point best made by German political theorist Otto Kircheimer in his classic 1961 study, "Political Justice": "Justice in political matters is more tenuous than in any other field of jurisprudence, because it can so easily become a mere farce."
Peter Maguire, author of "Law and War: An American Story" and "Facing Death in Cambodia," has taught the law and theory of war at Columbia University and Bard College.
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