Photo by: AFP
Kaing Guek Eav, alias Duch, stands before the court of the ECCC.
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These people were waiting for what was to be their day in court. not duch’s.
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(CAAI News Media)
Monday, 23 November 2009 15:03 Robbie Corey Boulet
Prosecution’s strength doubted as landmark KR trial nears end.
IN 1999, photographer Nic Dunlop was on a trip shooting mine-clearance operations in Battambang province when he happened upon the fugitive he had been chasing for more than a year.
At the time, the man was going by the name Hang Pin and working as the head of education in Samlot district, but Dunlop almost immediately recognised him as Tuol Sleng prison commandant Kaing Guek Eav, alias Duch.
Writing about his discovery in 2005’s The Lost Executioner, Dunlop speculated on what a trial of Duch might look like, using as models other men who had been made to answer for mass crimes.
“When the table is turned,” he wrote, “the guilty either deny their involvement completely, readily identify with their victims as lesser victims, or create elaborate and complex arguments to muddy the clarity of moral responsibility. In some cases they even continue to attack the veracity of their victims’ claims.”
Ten years after finding Duch, Dunlop has had the chance to watch the 67-year-old former maths teacher reject the first of those strategies while embracing the other three during his trial for war crimes and crimes against humanity, which enters closing arguments today.
While accepting responsibility for the deaths of more than 12,000 prisoners, Duch has presented himself as a man who lived in fear of top Khmer Rouge leaders and did not participate in the interrogations, torture and executions for which Tuol Sleng became notorious. His defence team has also challenged the applications of nearly one-third of the direct or indirect victims registered as civil parties in the case.
The prosecution, meanwhile, has reportedly been hampered by problems such as high turnover, and civil parties have complained that their role in the case has been too vaguely defined, leaving some with the sense that Duch has been permitted to dominate the proceedings at the expense of his victims.
“There was an expectation raised. The civil parties believed that they would be able to look this man in the eye and finally ask him direct questions about their loved ones and experiences,” Dunlop said by phone from Bangkok. “Some had that chance. But these people were waiting for what was to be their day in court. Not Duch’s day, but theirs.”
Legal strategies
As Khmer Rouge scholar Alex Hinton has noted, the contours of the defence team’s strategy emerged early and haven’t wavered.
“The defence has set Duch up as an almost tragic hero, who, blinded by hubris and a lack of foresight, found himself swept up in great tragedy,” Hinton said via email. “He joined the revolution to help liberate the country only to find himself unwillingly caught in a machine of death that he could not stop. Like a tragic hero, he comes to understand what has happened too late and tries to repent in the end.”
The prosecution’s argument, Hinton said, has been equally clear. “For them, Duch is a highly effective, cold-blooded mass murderer who not only knew what was going on, but actively and eagerly contributed to the process, often in ways that far exceeded his orders. His hands drip with the blood of 12,380 victims.”
Some observers, however, have criticised the prosecution for failing to present a coherent and compelling case.
A report to be released today by the Asian International Justice Initiative highlights logistical problems, including a “noticeable lack of coordination between the different prosecutors assigned to different stages of the proceedings”. Acting international co-prosecutor William Smith told the authors of the report that the resignation of four attorneys, including his predecessor, Robert Petit, had been a “major obstacle to the smooth implementation” of the prosecution’s strategy.
To Dunlop, though, the prosecution’s problem seems more fundamental. “To my mind, in terms of pursuing an argument, they seem to be poorly briefed,” he said.
He cited as an example the case of Sou Sath, a former classmate of Duch’s who appeared as a character witness. Sou Sath told judges that Duch “didn’t say anything” about his political leanings when the two were students, an assertion that went unchallenged by the prosecution even though, Dunlop said, Duch was known to be progressive “even as a schoolboy”. Witness statements to this effect, Dunlop added, “would have described [Duch] as something of a fanatic, as someone who was beating a path towards a fairly fanatical communist supporter, which would obviously inform his later emergence as commandant of S-21”.
Dunlop said the prosecution had also failed to convincingly challenge one of Duch’s central claims: that he was not involved in the day-to-day operations of the torture facility.
“If I were a prosecution lawyer, I’d want to establish beyond a reasonable doubt that, in order for him to maintain that position of authority within this prison, it was essential that he was regularly seen in interrogations, that he participated, and that he killed,” Dunlop said. “In order to maintain this climate of total fear which both victim and perpetrator occupy, he has to have had a hand in that personally. And that hasn’t been established.”
Youk Chhang, director of the Documentation Center of Cambodia, also questioned the strength of the prosecution’s case, though he said the format of the hearings was at the root of the issue – in particular the fact that Duch has been able to respond directly to witnesses and civil parties.
He expressed concern about how this would affect the final verdict. “If [the defence] can manage to reduce Duch’s sentence by even a day, then they can declare victory over the millions of victims and continue to condemn the weakness of Cambodia’s rule of law,” he said.
For Bou Meng, one of only a handful of Tuol Sleng survivors and a civil party in the case, the closure expected to result from a verdict will outweigh anything that has emerged in the case thus far. “Right now, I am only 20 percent relieved from the sorrow of the loss of my family and the torture I suffered at S-21,” he said. “The other 80 percent is not yet relieved. I am awaiting the reading of the verdict for Duch.”
The most important open questions, he said, centre on the extent of Duch’s sincerity during the hearings, especially with respect to his professions of remorse. “We’ve wept together,” Bou Meng said. “I know my tears are coming from my sorrow. But I don’t know about Duch’s tears.”
This is a question Dunlop has been grappling with for the past 10 years. The Lost Executioner includes several passages pondering whether Duch’s conversion to Christianity had been “a lie or simply an attempt to avoid arrest”, and whether his statements of remorse had been “just an elaborate smokescreen”.
Dunlop described Duch’s public statements at the trial thus far as scripted and contrived. “When he stands up in court and he reads his apology from a piece of paper, and he’s obviously enjoying his day in court, he has absolutely no idea of how that comes across because the man lacks total empathy,” he said.
But even if Duch strikes a sympathetic chord this week, Dunlop said the question of his sincerity may prove secondary to many survivors of the regime. “From the people I’ve talked to, what they’ve been looking for is an accounting. They want something approaching the truth for what occurred,” he said. “I don’t think any measure of contrition from Duch is enough.”
ADDITIONAL REPORTING BY NETH PHEAKTRA
by Patrick Falby
