The president resumes his role, while the prosecution loses theirs

Kambol (Phnom Penh, Cambodia). 22/06/2009: A journalist reads a newspaper in the ECCC press room while Duch’s trial goes on
©Vandy Rattana

Ka-set
http://cambodia.ka-set.info

By Stéphanie Gée
23-06-2009

The hearing on June 22nd 2009 highlighted the weakness of the prosecution in Duch’s trial. Between repetitive questions and off-topics, the examination of the accused by the co-Prosecutors on the functioning of S-21 and Choeung Ek left more than an unfinished taste. The court president, Nil Nonn, started directing the debates again, with a timely reminder to the parties of the rules of the game.

Co-Prosecutors’ interrogation misses its target
The Cambodian co-Prosecutor started interrogating Duch and several of his questions were rejected by the president: “I request that the accused not answer this question. It is repetitive.” The documents, drawn from the introductory submission, succeeded one another on the screen. They manifestly had great value for the case file. Unfortunately, an unclear presentation and mediocre translation limited their reach and understanding. Duch did not contest he was the author of the notes written on the archive documents, which shed light on the role played by the accused in the direct orders to torture and execute. He was also led to repeat that all the power was in Pol Pot’s hands and he was only following orders, etc.

The international co-Prosecutor took over. Straight away, he stated to the accused: “During the last two weeks, you have appeared to be more honest with the ECCC [Extraordinary Chambers in the Courts of Cambodia].” And, according to him, inconsistencies appeared, which Duch challenged him to point out. William Smith then went on a series of perplexing questions. “Why did you decide to get married on December 20th 1975?” After reminding that the minimum age authorised to get married under the Khmer Rouge was 25 years old, Duch referred to “the state of human necessity.” The president intervened: “We are discussing today the functioning of S-21 and Choeung Ek… Please limit your questions to the facts being debated and reserve these questions for when we discuss the personality of the accused.”

The Australian resumed: “And you had two children during the time you worked at S-21?” Duch agrees. Interrogated on his wife’s occupation, the accused explained she was initially part of a sewing unit in the provinces and he obtained that she stay in Phnom Penh, where she was posted in the military hospital. “We would spend one night together every ten days,” he noted. Asked to describe his working day, Duch reported he started work at 7am, took a lunch break followed by a nap from 11am to 2pm, and worked until 5pm. After dinner, he would resume work from 7pm to 11pm, a day that could sometimes go on until 1am. The president carefully made sure the debates went smoothly, and made himself heard as soon as a question led the accused to repeat what he had already said in court.

After lunch break, while the speaking time allocated to the co-Prosecutors by the court –three hours – was nearly over, pertinent questions had still not been asked. As for Duch, he complied by giving short answers. Yes, he did not have the time to do everything and had to delegate; yes, he would go frequently to the sculpture studio within the high school compound as soon as he started being “overwhelmed by a feeling of despair”; yes, he was the one who would generally summon his deputy Hor to his office adjoining his house to “manage daily affairs” such as the arrival of new prisoners.

“Did you have no scruples sending members of your own staff to death?”, the co-Prosecutor asked him as the screen displayed a chart of arrests in S-21, which showed 34 interrogators out of a total of 155 staff members were thus eliminated. “That is not true,” Duch answered. “I was not happy. But if an incident occurred, we were responsible for it. […] And when a young man raped a female detainee, I would not have spared him if that had been a crime…” Why did he give in to fear only from the moment when Vorn Vet – former Khmer Rouge Minister of Industry and former superior of Duch – was arrested, in November 1978, and not before, when some of his subordinates were?, the co-Prosecutor continued. Because the S-21 staff members who had been incriminated until then did not originate from M-13, the centre Duch previously directed, and he therefore saw no reason to worry, he explained. Early January 1979, as the noose was tightening around him, Duch claimed he then took refuge in sleep, day and night, out of despair. “I was waiting for death,” he said.

Overrunning speaking time, the defence objects
The time allocated to the co-Prosecutors came to an end. William Smith requested a 20-minute extension. François Roux, Duch’s international co-lawyer, reacted strongly: “You could observe that a number of questions appeared to be off the topic. It fell upon the co-Prosecutors to ask pertinent questions in the time they were given. […] The co-Prosecutor cannot complain about time lost because the answers [of the accused] were too long. Your Honour, I request the end of the interrogation.” In his defence, the co-Prosecutor recalled that the issue being debated represented the “heart of the trial” and claimed that “given the amount of time, efforts and money spent on this trial,” and “if the accused came before this Chamber with remorse and to say the truth,” then he believed his request for a 20-minute delay could not be objected to. The president deemed the defence’s remark “pertinent” but authorised the co-Prosecutor to continue, whilst observing he should have selected essential questions.

William Smith then attempted to make the accused recognise that he was an essential link in the implementation of the policy of the Communist Party of Kampuchea (CPK). Duch highlighted the fact he only obeyed orders and claimed again that he was not at the origin of the policy. “You played a very important role within the CPK, didn’t you?” “It is difficult for me to position myself,” Duch answered. “Haven’t you inflicted fear upon innocent Cambodians?” “Fear existed everywhere,” Duch replied. “But it is the party’s Central Committee who initiated this terror. And if we did not follow the orders, death awaited us.” Then, showing Duch the picture of a female detainee sitting next to her baby, the co-Prosecutor asked him: “How could you think in your soul that they were the faces of the enemy?” “Nobody can answer that… The Central Committee decided who the enemy was. […] It wasn’t up to me, but to the superior echelon, to decide who had to be smashed…”

This time, the co-Prosecutors gave up. It was revealed that the co-lawyers for the four civil party groups did not retain the suggestion made to them during the last trial management meeting to appoint a Cambodian and an international lawyer to speak in the name of all. They preferred to keep one representative per group.

“To each their role,” the defence reminded
Hong Kim Suon, co-lawyer for group 4, asked the accused how he could be sure that the use of poisonous insects did not take place in S-21 or that the practice of ripping prisoners’ nails was ended once he became aware of it and forbade it. “If those orders were not respected, I had told Hor [my deputy] that he would be responsible for it before the party.” A few questions later, François Roux intervened to clarify things: “I would like the civil parties to be invited not to carry out an examination as if they were prosecutors” but to ask questions directly related to the victims and civil parties. “I would like the role of each and everyone to be reminded.” Alain Werner, co-lawyer for group 1, lamented that the defence had not raised this point during the last trial management meeting.

François Roux argued: “I am not seeking in any way to limit the civil parties’ role, but to give it its full meaning. […] They do not have to continue the prosecutors’ role. The civil parties have an autonomous role,” which is not to lead the prosecution, he added, referring to the principles established in a “mixed procedural regime that is mainly inquisitorial.” “Those are the texts. You cannot stand in for the prosecutors.” He added that an illustration of this drift was the request recently made by the civil party lawyers to be able to intervene on the sentence.

The Chamber finally allowed the interrogation by the civil parties in a way to support the co-Prosecutors’ work, a green light assorted with recommendations: to avoid asking questions already asked by others, to make short ones “to avoid confusing the accused” and to abstain from any off-topic.

The lawyers intervened the one after the other. Invited to discuss specific detainees, Duch answered he did not recall the more than 10,000 victims who came to S-21. As for the medical experimentations and anatomy lessons carried out on prisoners, Duch claimed he had barely any information on the subject, which mattered little to him, and recalled that his concern was to “try and avoid any mistake in the implementation of the party line.”

The interrogation on the functioning of S-21 and Choeung Ek will be followed by that of the accused on S-24 by the judges and parties. Then, from June 30th to July 14th, the Trial Chamber announced, nine survivors of S-21 will be heard (at last), with one every day.