Duch launches appeal

via Khmer NZ

Thursday, 26 August 2010 15:04 James O’Toole and Cheang Sokha

Defence calls for release of former prison chief

LAWYERS for former Tuol Sleng prison chief Kaing Guek Eav formally announced yesterday that they would appeal last month’s verdict at the Khmer Rouge tribunal, saying the case of the infamous jailer, better known as Duch, falls outside the court’s jurisdiction.

The appeal notice said the court had practised “victors’ justice” and failed “to demonstrate why it was convinced beyond a reasonable doubt that the Prosecution evidence on which it relied proved that the Accused fell under its personal jurisdiction”.

“In reality, in light of his official functions at the relevant time, the Accused does not fit into the category of persons under the jurisdiction of the [tribunal],” the defence said.

The agreement between Cambodia and the United Nations that established the tribunal limits prosecutions to “senior leaders of Democratic Kampuchea and those who were most responsible” for crimes committed under the regime. In its verdict on July 26, the court found Duch guilty of crimes against humanity and grave breaches of the Geneva Conventions, sentencing him to 30 years in prison.

The defence made little mention of the jurisdictional issue during hearings last year prior to closing arguments, when defence lawyer Kar Savuth abandoned his team’s strategy of pushing for a lenient sentence and instead argued that the court had no right to try Duch in the first place.

“Duch has been detained for 10 years,” Kar Savuth said at the time. “Other chiefs of prisons have not been detained, so I think it is an appropriate time for the chamber to release my client and allow him to go home.”

In last month’s judgment, the Trial Chamber dismissed this challenge on the grounds that it was not raised at the outset of proceedings as required by the court’s internal rules. Kar Savuth mentioned the issue on the third day of substantive hearings, but clarified that day that he did not intend to make a formal challenge to the court’s jurisdiction.

In any case, the Trial Chamber ultimately ruled that Duch was one of those “most responsible” for Khmer Rouge crimes. At Tuol Sleng, he was tasked with “carrying out nation-wide operations and receiving high-level cadres and prominent detainees”, the verdict said.

Nearly all of the perhaps 16,000 prisoners held at Tuol Sleng were eventually executed.

Michelle Staggs Kelsall, a trial monitor with the Asian International Justice Initiative, said the defence challenge to the court’s jurisdiction was “highly unusual”.

“Given the lack of success to date, it seems unlikely that the appeals chamber will agree with this argument,” she said.

The defence’s notice of appeal against the judgment follows that of the prosecutors, who earlier this month described Duch’s 30-year prison term as “arbitrary and manifestly inadequate”.