Phnom Penh (Cambodia). 28/04/2009: In a post office in the Cambodian capital, a television broadcast of a hearing of Duch’s trial. Images aired live on a daily basis.©Vandy Rattana
Ka-set
http://cambodia.ka-set.info
By Stéphanie Gée
16-06-2009
The hearing of June 15th 2009 opened with a strong decision of the Trial Chamber on the request made by the defence for the pre-trial release of their client. Moreover, Duch was interrogated on the functioning of S-21 by the international judges with efficiency and intelligence, thereby eclipsing the hesitations and wanderings of the previous days. Should that pace be maintained, one could imagine that the proceedings will not draw out. The judges announced they estimated the trial would end between August and December 2009, although they were said to expect it to happen towards the very end of the year, according to leaks from the trial management meeting in camera of June 11th.
Condemnation of the decision of the Military Court
Unsurprisingly, the Trial Chamber decided to maintain Duch in provisional detention for the duration of his trial, thereby denying the defence’s request. However, it came as a surprise that the Court qualified the decision of the Military Court - that maintained Duch in provisional detention from May 10th 1999 to July 30th 2007 (date of his transfer to the Khmer Rouge Tribunal), without any trial - as a “violation of the rights of the Accused” and “an error of application of procedural law.” By ruling that Duch’s detention by the Military Court was “unlawful”, the Chamber resolved this issue, after the co-Investigating Judges and the Pre-Trial Chamber, who had previously received this request from the defence, had failed to do so. The former had stated they did not have the jurisdiction “to determine the legality of Duch’s prior detention” in their order of provisional detention dated July 31st 2007. The defence had filed an appeal, supported in their endeavour by several representatives of the Cambodian civil society. To no avail. They had requested the Pre-Trial Chamber to rule on the issue and to recognise there had been a violation of the right of the accused to be judged in a reasonable time or released.
In its decision on this appeal dated December 3rd 2007, the Pre-Trial Chamber explained it would not be appropriate for the Chamber to “make the statements requested when another judicial body may well become seized of this case for trial.” The Chamber justified that “[T]he Agreement, the ECCC Law, the Internal Rules and Cambodian law do not explicitly or implicitly give any jurisdiction to the Co-Investigating Judges or the Pre-Trial Chamber to rule upon any matter related to decisions or actions of the investigating judges of the Military Court or any other court within the Cambodia court system.”
As the violation was recognised at last, the Trial Chamber gave satisfaction to the request of the defence, who were calling for reparations to be awarded to their client. In the event of acquittal by the Extraordinary Chambers in the Courts of Cambodia (ECCC), Duch “may seek appropriate remedies for time spent in detention at the Military Court and for the violations of his rights before the national courts of Cambodia.” In the event of conviction by the ECCC, the accused is entitled to be credited for the time spent in provisional detention both before the ECCC and before the Military Court, which opens the door to the possibility of an additional reduction in the sentence to account for the violation of his rights.
Limits imposed on the parties’ speaking times
The chaos observed since the start of the trial related to interventions prompted judge Cartwright to note that the operating mode followed until then, that is asking the parties how much time they needed, had not been successful. From now on, time limits will be imposed: the prosecution will have 30 minutes, civil parties 40 minutes and the defence 40 minutes. Which translates into a power imbalance as co-Prosecutors and civil parties are “in the same camp.”
The New Zealand judge also suggested the civil party lawyers, organised into four groups, to agree amongst themselves to designate for each of their interventions one international lawyer and one Cambodian one, who will talk in the name of all the groups. The procedure would likely benefit the civil party lawyers.
The court also announced the suppression of one day of hearing every month, which will be devoted for a trial management meeting. Moreover, a schedule of the proceedings should finally be communicated by the end of the week. Otherwise, there was no information regarding the problems of translation frequently encountered during the hearings, on which a decision is still awaited.
An inconsistent examination
President Nil Nonn started to interrogate Duch on the functioning of S-21. Duch had to repeat what he had most often already explained in court. When the president asked him who took the decision to build isolated cells in S-21, Duch stated again that it was his initiative, without him referring to his superiors. Why? The president did not ask. “From their arrest to their execution, prisoners were not authorised to go out. Is that correct?” “Yes, it is,” the accused only said to avoid repeating again.
Later, Duch indicated that the committee of S-21 had the authority to send to Prey Sar the centre staff members whose re-education they deemed necessary. “This decision was not of the competency of the superior echelon.” In response to many questions detailing the daily life of detainees in S-21, Duch said he was not aware of much on this topic, giving answers “based upon [his] own analysis and assumptions.” As for the condition of prisoners after they were interrogated and tortured, he was unable to elaborate on it because, he claimed, he did not see them again.
No differentiated treatment for women and children
When, in the afternoon, judge Cartwright asked him if he did not contest the range of nationalities of prisoners incarcerated in S-21 (Indians, Thais, Americans, Australians, Neo Zealanders, etc), Duch replied he was not in a position to infirm or confirm because he was only aware of the existence of four Westerners, including a British. Everyone was treated in the same way, except for those four Westerners, who were treated slightly better.
The judge cited statistics established by the office of the co-Prosecutors saying that just over 1% of the detainees were children and 21.8% were women. However, children arrested with their mothers were not mentioned in the lists found in S-21. Children were subjected to the same detention conditions as adults, “although I did not witness it with my own eyes.” Yes, Duch claimed, he expressed regret he was unable to save the lives of the children. “I feel ashamed…” As for women, although some were sent to S-21 due to their functions, a majority of them were imprisoned to suffer the same fate as their husbands or fathers, who had been arrested previously, although they had not committed any fault, the accused explained. Some were taken away with their children who were barely more than 12 months old, he recognised. Duch stressed he had not made any inspections in the main prison compound and reserved his rare visits for the special prison where important individuals were detained.
The lists of imprisoned children and women remained 30 minutes on the screen while debates moved on. Once again, images of the trial were lost for ever for the archives.
“The more I met the prisoners, the more I was affected. I therefore avoided seeing them.”
Judge Lavergne then led the examination with remarkable method. He delimited the topic with Duch to connect together the statements recognised by the accused: the composition of the prison population in S-21 was heterogeneous, without any distinction based on race in the conditions of detention; the regime resorted to false pretexts to arrest people to avoid stirring their suspicions; these individuals were never notified about the reasons for their arrest; once arrived in S-21, they were stripped off their clothes, except for women; the policy followed inclined to starve the prisoners to weaken them and control them better; the detainees were not authorised to talk amongst themselves and had to remain lying on the bare floor; they were treated like animals, called by the contemptuous particle “a”, and so on.
“When I remember that, I feel ashamed. I was trying to avoid all contact with the prisoners as much as possible and I was successful in doing so. But there were no measure planned to alleviate their moral distress. If I had tried, I would have been unable to distinguish between friends and enemies. And if I had behaved towards the enemies in a favourable way, if I had considered them as friends, I would have been unable to maintain my class position. […] The more I met them, the more I was affected. I therefore avoided seeing them…”, Duch stated.
A digression started on the order of the next examinations, which gave the opportunity to Alain Werner, co-lawyer for civil party group 1, to inform the Chamber that the four civil party groups, in accordance with a request made by judge Cartwright during the trial management meeting, decided to decrease from 60 to 37 hours the time necessary to hear the civil parties, excluding the survivors.
The examination resumed. Yes, Duch conceded without hesitation, a climate of permanent terror and absolute fear was imposed on all the detainees. Yes, he was scared to see the sufferings of those sent to his security centre. “How would you describe your attitude?”, judge Lavergne asked him. “I don’t know. I shut my eyes and my ears. I did not want to see the reality that did reconcile with my feelings. I did not allow myself to see or hear…”, he answered. “May that be called cowardice?”, the French judge suggested. “It was beyond cowardice.”
An accused who recognises his crimes
Then, judge Lavergne dealt the last blow, quoting an excerpt from the closing order of the co-Investigating Judges dated August 2008, which summarises part of the crimes against humanity that Duch is charged with: “[The prisoners in S-21] were wilfully subjected to serious mental and physical suffering due to inhumane acts which included deliberate deprivation of adequate food, sanitation and medical treatment. Prisoners were beaten and subjected to stringent restrictions during detention. These severe conditions individually or collectively depressed, degraded, and dehumanised detainees ensuring that they were always afraid.” Duch gave in: “All the crimes you have just listed, I accept them.”
The judge cited statistics established by the office of the co-Prosecutors saying that just over 1% of the detainees were children and 21.8% were women. However, children arrested with their mothers were not mentioned in the lists found in S-21. Children were subjected to the same detention conditions as adults, “although I did not witness it with my own eyes.” Yes, Duch claimed, he expressed regret he was unable to save the lives of the children. “I feel ashamed…” As for women, although some were sent to S-21 due to their functions, a majority of them were imprisoned to suffer the same fate as their husbands or fathers, who had been arrested previously, although they had not committed any fault, the accused explained. Some were taken away with their children who were barely more than 12 months old, he recognised. Duch stressed he had not made any inspections in the main prison compound and reserved his rare visits for the special prison where important individuals were detained.
The lists of imprisoned children and women remained 30 minutes on the screen while debates moved on. Once again, images of the trial were lost for ever for the archives.
“The more I met the prisoners, the more I was affected. I therefore avoided seeing them.”
Judge Lavergne then led the examination with remarkable method. He delimited the topic with Duch to connect together the statements recognised by the accused: the composition of the prison population in S-21 was heterogeneous, without any distinction based on race in the conditions of detention; the regime resorted to false pretexts to arrest people to avoid stirring their suspicions; these individuals were never notified about the reasons for their arrest; once arrived in S-21, they were stripped off their clothes, except for women; the policy followed inclined to starve the prisoners to weaken them and control them better; the detainees were not authorised to talk amongst themselves and had to remain lying on the bare floor; they were treated like animals, called by the contemptuous particle “a”, and so on.
“When I remember that, I feel ashamed. I was trying to avoid all contact with the prisoners as much as possible and I was successful in doing so. But there were no measure planned to alleviate their moral distress. If I had tried, I would have been unable to distinguish between friends and enemies. And if I had behaved towards the enemies in a favourable way, if I had considered them as friends, I would have been unable to maintain my class position. […] The more I met them, the more I was affected. I therefore avoided seeing them…”, Duch stated.
A digression started on the order of the next examinations, which gave the opportunity to Alain Werner, co-lawyer for civil party group 1, to inform the Chamber that the four civil party groups, in accordance with a request made by judge Cartwright during the trial management meeting, decided to decrease from 60 to 37 hours the time necessary to hear the civil parties, excluding the survivors.
The examination resumed. Yes, Duch conceded without hesitation, a climate of permanent terror and absolute fear was imposed on all the detainees. Yes, he was scared to see the sufferings of those sent to his security centre. “How would you describe your attitude?”, judge Lavergne asked him. “I don’t know. I shut my eyes and my ears. I did not want to see the reality that did reconcile with my feelings. I did not allow myself to see or hear…”, he answered. “May that be called cowardice?”, the French judge suggested. “It was beyond cowardice.”
An accused who recognises his crimes
Then, judge Lavergne dealt the last blow, quoting an excerpt from the closing order of the co-Investigating Judges dated August 2008, which summarises part of the crimes against humanity that Duch is charged with: “[The prisoners in S-21] were wilfully subjected to serious mental and physical suffering due to inhumane acts which included deliberate deprivation of adequate food, sanitation and medical treatment. Prisoners were beaten and subjected to stringent restrictions during detention. These severe conditions individually or collectively depressed, degraded, and dehumanised detainees ensuring that they were always afraid.” Duch gave in: “All the crimes you have just listed, I accept them.”
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