Kambol (Phnom Penh, Cambodia). 01/04/2009: Third day of the trial of Kaing Guek Eav, alias Duch, at the ECCC.
©John Vink/ Magnum
Ka-set
By Stéphanie Gée
01-04-2009
After having publicly apologised at the hearing the day before, Duch, the former head of the S-21 Khmer Rouge security centre, requested his release via his lawyer. The Defence, as they announced it, went back on Wednesday April 1st, the third day of the trial, over the question of the provisional detention of their client, “well beyond the acceptable time limits”. “Ten years in provisional detention: can we still call it provisional?”, Duch’s French co-Lawyer François Roux wondered. He added that this was a violation of the defendant’s rights and that it must be rectified.
The discovery in Northern Cambodia of Duch by journalists who identified him as the former director of the bleak S-21 centre, which has since then been turned into the Museum of Genocide, led to his arrest on May 10th 1999. He was immediately sent to the military prison in Phnom Penh where he stayed as no trial was launched against him, until he was eventually summoned by the co-Investigating Judges at the new Extraordinary Chambers in the Courts of Cambodia (ECCC). The decision marked his transfer to the hybrid court’s detention centre.
The request: difficult but legitimate, according to Defence team
Right from the start, François Roux reminded the audience that “we requested his release, given the time that has already gone by”. Co-Investigating judges replied that if for sure there was a problem, it was not their own but the Cambodian authorities’; co-Prosecutors aligned themselves with the Investigating Judges; and the pre-Trial Chamber at the ECCC discarded the situation by urging Lawyers to submit the matter to the Trial Chamber.
“We are aware of the difficulty, especially when it comes to Civil Parties. How can one imagine, just as the defendant acknowledges his guilt, regrets his actions and seeks forgiveness, that he would also ask for his release? Well, simply because we have the greatest respect for this Chamber and the ECCC! We come here to ask for the Law to be said and nothing else, even if this is a difficult decision which would be hard for the public opinion and victims to understand”, the French lawyer said. Quoting legal texts, he pointed out the fact that the provisional detention of defendants charged with war crimes or crimes against humanity could not exceed three years.
Kar Savuth, the Cambodian lawyer for Duch, retorted to the co-Prosecutors, who had expressed before the pre-Trial Chamber their fear of public disorder and for the security of Duch and his former victims, that they were allowed to be afraid the first year, the second year and the third year, but not three years and a day after Duch’s arrest. Mr. Roux cited the Latin saying “Dura lex sed lex” (the law is tough, but this is law). He did not fail to remind that out of the six reports brought by amici curiae (analyses made by experts who are not a party to a case) and received by the tribunal from NGOs, four supported the position of the Defence.
For the lawyer, “there is continuity in the case files”, since Duch’s provisional detention in Cambodia’s military prison was interrupted when the military court noticed its incompetence facing the ECCC once they were set up. And in order to support his argumentation, he referred to Case Law and in particular to a decision issued by the Court of Appeals at the International Criminal Tribunal for Rwanda about a person formerly responsible for the Rwandan genocide and whose rights had been flouted during his arrest. “The Appeals Chamber in that Tribunal concluded that where the Rule of Law exists, the very existence of the state is jeopardised if that state does not respect the Law. [...] The state which breaches the Law encourages people to act regardless of the Law... and it leads to anarchy. [...] This is a terrible backlash!” That court had consequently decided to halt prosecutions. “Let me reassure you, we haven’t gone that far, here!”
Request not well-received by other Parties
Mr. Roux then asked for “the immediate ending of Duch’s detention during the time of the trial, which could come with conditions”. “As Mr. Kar Savuth said yesterday [Tuesday March 31st], we would then find again equilibrium between those who are not prosecuted by co-Prosecutors and are wandering freely, and Duch!” However, if the Trial Chamber happened to refuse to make such a decision, the lawyer is asking the Chamber to at least remove from the sentence the time that Duch spent behind bars and grant him a remission as a compensation for the violation of his rights. Then, speaking to Civil Parties: “Nothing is made against you bur for the Law!”
National co-Prosecutor Chea Leang presented again the arguments she already voiced before the pre-Trial Chamber, namely that the ECCC are not competent to pronounce a verdict about what happened before a Cambodian jurisdiction. The announce of the Defence infuriated Civil Party lawyers who in turn called for judges to be authorised to comment upon that request, which Ms. Jacquin, the lawyer for Group 3 of Civil Parties, deemed “surrealist”, adding that it does not focus much on victims’ suffering. The Trial Chamber will announce on April 6 whether, as an exception, Civil Parties will be able to have their say on such a question or not.
Among the audience in the courtroom...
The opening of Duch’s trial drew many important people to the courtroom, like actor Prum Magn, who came to the court on Wednesday April 1st. He indicated to journalists that he lost five relatives under the Khmer Rouge regime and that he left it to the ECCC and the justice they will deal out.
Also among the audience, Kek Galabru, the president of LICADHO, the Cambodian NGO for the defence of Human rights. She was pleased to see that international standards were respected in that tribunal: “The rights of the accused are not flouted, there are debates and various parties are allowed to speak... And it is not the President of the Court who decides on everything like it happens in Cambodian tribunals! As for Mr. Roux, he does not defend the accused, but he defends the Law. What I am interested in is to see whether Cambodians will develop this reflex.” Kek Galabru, a figure in the civil society, also welcomed the participation of victims in the trial but said she regretted that the coordination between their lawyers was not better. “They should speak with one voice!”
Irish photographer Nic Dunlop, who found Duch and revealed his existence and past to the world with the help of journalist Nate Thayer, did not want to miss the historic moment either. Besides, the author of the book “The lost executioner” (Bloomsbury, 2005 – a new edition of the book will soon be out) will be called to testify as a witness. After the hearing, he said he found “quite surrealist” the fact that nearly ten years after his encounter with Duch, he found himself watching him being brought to justice before a court and expressing himself “in the same way” as he did with him in the village where he was found.
“Yesterday, when I saw that grey-haired man, almost intimidated, he almost induced pity. Then, he stood up to speak – the moment that everyone had been awaiting – and then, we could see that he enjoyed that moment when the authority of the teacher and later the head of S-21 spontaneously came back. He talked about “shame” but there was no shame in his facial expressions. It looked like manipulation. [...] For a Christian [convert], forgiving plays an important part. He must have rehearsed that moment, knowing that he’d have to act it one day. When I met him, he told me: ‘I suppose I have to go to prison, but that’s OK, this is God’s will’. Back then already, he did not burst into tears or show anything theatrical. He spoke as an ordinary man... But I don’t know how remorse can be evaluated...? Judging by the scale of the crimes committed, there is no way out for Duch anyway. What I wonder, however, is whether today what is being said in the tribunal means anything to ordinary Cambodians...”
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What was also said during the hearing
In the afternoon of April 1st, the focus of the hearing was put on the reading by co-Prosecutor Robert Petit of factual facts which the Prosecution and the Defence agreed on, i.e. 238 out of 351 facts. This session was not planned on the schedule but was requested with insistence by Ms. Jacquin, the lawyer for Group 3 of Civil Parties, who claimed that this would shed more light on the upcoming debates. For that occasion, Duch asked that the term “S-21” be used to refer to the security centre he used to supervise, instead of the term “Tuol Sleng”, the name given to the site after the arrival of the Vietnamese in January 1979.
Khieu Samphan, a former Khmer Rouge head of state, looks on during a hearing at the U.N.-backed genocide tribunal in Phnom Penh, Cambodia, Friday, April 3, 2009. Khieu Samphan is charged with war crime and crime against humanity.(AP Photo/Heng Sinith, Pool) 
Former Khmer Rouge President Khieu Samphan sits in the dock before Cambodia's genocide tribunal rules on an appeal against his third pre-trial detention, on the outskirts of Phnom Penh April 3, 2009. Khieu Samphan is charged with war crimes and crimes against humanity.REUTERS/Heng Sinith/Pool (CAMBODIA POLITICS CONFLICT SOCIETY) 
Former Khmer Rouge Foreign Minister Ieng Sary stands in the dock for his pre-trial public hearing on the outskirts of Phnom Penh April 2, 2009. Cambodia's "Killing Fields" court charged Ieng Sary with crimes against humanity three decades after the end of a regime blamed for 1.7 million deaths.REUTERS/Chor Sokunthea (CAMBODIA POLITICS CONFLICT SOCIETY)
Former Khmer Rouge deputy Prime Minister and Minister of Foreign Affairs Ieng Sary (C) stands in a dock in the courtroom during a public hearing at the Extraodinary Chambers in the Court of Cambodia in Phnom Penh. Sary asked Thursday to be released from detention ahead of his trial at Cambodia's UN-backed genocide court, on the grounds that he is old and sick.(AFP/POOL/Chor Sokounthea)
Former Khmer Rouge Foreign Minister Ieng Sary sits in the dock for his pre-trial public hearing on the outskirts of Phnom Penh April 2, 2009. Cambodia's "Killing Fields" court charged Ieng Sary with crimes against humanity three decades after the end of a regime blamed for 1.7 million deaths.REUTERS/Chor Sokunthea (CAMBODIA POLITICS CONFLICT SOCIETY)
