Ex-Khmer Rouge Security Chief Duch Said First Person To Stand Trial

Ex-Khmer Rouge Security Chief Duch Said First Person To Stand Trial
Phnom Penh Post, Issue 16 / 10, May 18 - 31, 2007

The defense lawyer for Kaing Khek Iev, known as Duch, expects his client to be the first ex-member of the Khmer Rouge to come before the Extraordinary Chambers of the Courts of Cambodia (ECCC).

With an optimistic ECCC again progressing towards prosecution, legal experts, genocide scholars and sources close to surviving ex-Khmer Rouge leaders are sounding off about legal strategies that may be taking shape for other potential defendants.

"Of course, Duch will be the first person to stand for trial, because he was already arrested," said Ka Savuth, defense attorney for Duch since his arrest in May 1999. "I am just waiting for the trial. I will seek to release Duch on bail as soon as he is transferred from the Military Court to the ECCC."

The ECCC has made no indictments, and spokesman Peter Foster declined to comment on Savuth's speculation. But with ECCC Co-Investigation Judge Marcel LaMonde predicting that the first case will go before the Trial Chamber by the end of the year, others agree that the first defendant could be Duch.

"As head of Toul Sleng, Duch can probably be tied more readily to specific acts than can the others," said John Quigley, author of the The Genocide Convention: An International Law Analysis and an expert witness at the 1979 People's Revolutionary Tribunal held in Phnom Penh by the Vietnamese-installed government.

One source close to the proceedings said Duch is the clear first choice because his case is the "least political."

"We cannot comment on who will be the first to stand trial, but if the court indicts Duch, there must be many other people to stand trial because there were many prisons the same as S-21," said Sok Sam Eoun, executive director of the Cambodian Defender's Project. "In my point of view, I think that members of the politburo of the KR must be investigated, such as Khieu Samphan, Noun Chea, Ieng Sary."

These three are widely regarded as the "most likely" ex-Khmer Rouge to be tried on charges that may include genocide and crimes against humanity.

"Brother No 2" Nuon Chea, told a Japanese news agency earlier this month that he will unveil "yet untold secrets" if he is summoned. He has denied knowledge of the widespread atrocities recorded under the Khmer Rouge regime in which he served as deputy secretary of the Central Committee. He has said that he will forego defense counsel and represent himself. Chea is 80, in poor health and lives near Pailin.

"Nuon Chea may feel that what he has to say can be best said by him, rather than a lawyer. He will likely try to put what occurred under the Khmer Rouge in historical context, starting with French colonialism," wrote law professor John Quigley, author of the The Genocide Convention: An International Law Analysis, by e-mail on May 16.

Ieng Sary, Brother No 3, was issued a Royal Pardon on 1996.

"The pardon is still in place," Foster said. "The scope of the pardon in regard to the ECCC has yet to be determined. It may or may not have legal force and what it covers may not include things for which he might still be charged."

According to Cambodian journalist Puy Kea, Sary, 78, is keeping a "low-profile" until the ECCC determines the scope of his pardon in its May 31 plenary session.

"Sary was a member of the standing committee. He was - at least until 1980, if not later - a key member of the regime, a man whose influence on policy and its implementation was infinitely greater than a simple cog like Duch," wrote Philip Short, author of "Pol Pot: Anatomy of a Nightmare" in an e-mail on May 16. "To argue that he had no responsibility for the regime's policies (the policies that caused the deaths of 1.7 million Cambodians) requires a suspension of disbelief that would undermine the very basis of the trial."

Rumors of Sary's possible flight to Cuba from his home in Phnom Penh are patently untrue, Kea said on May 15.

In August 2006, Khieu Samphan, 75, told the Post that if summoned by the ECCC, he would be represented by Jacques Verges- a longtime friend who is perhaps the most controversial defense attorney in the history of international justice. Verges spent five days with Samphan in 2006 and toured the ECCC. In past Verges, 82, has represented ex-Nazi war criminal Klaus Barbie and the Venezuelan terrorist Ilich Ramirez Sanchez, also known as "Carlos the Jackal."

Experts agree that the participation of Verges will be characterized by his signature "attack the prosecution" defense tactics. Although the ECCC does not provide for nations to be implicated in the trial, Short believes Verges, known as the Devil's Advocate, won't be able to resist.

"He will try to implicate above all the US-and maybe Vietnam, China and France in that order. Maybe also [retired King] Sihanouk," said Short. "Verges' main target will be the US. This is a chance to put the US on trail and denounce the transparent unfairness of trying a few key people and letting all the lower guys go free. I'm sure he won't miss a trick."