Duch: It wasn’t me

Former S-21 prison chief Kaing Guek Eav, better known as Duch, sits in the courtroom at the Khmer Rouge tribunal on the outskirts of Phnom Penh in July 2010. (Photo by: Reuters)

Thursday, 31 March 2011
James O’Toole and Cheang Sokha
The Phnom Penh Post

Kaing Guek Eav struck a defiant tone yesterday in his final appearance before the Khmer Rouge tribunal, denying responsibility for his leadership of S-21 prison and asking the court to release him “in order to seek justice and truth for the Cambodian people”.

Speaking at the end of three days of appeal hearings before the tribunal’s Supreme Court Chamber, the man better known as Duch offered only a token expression of apology over the course of a 25-minute address in which he asserted that he falls outside the court’s mandate to try “senior leaders” and those “most responsible” for crimes committed under Democratic Kampuchea.

The argument represents a dramatic break from the approach taken by Duch and his defence over six months of trial hearings in 2009, during which he accepted qualified responsibility and essentially pleaded guilty. All this changed when he challenged the court’s jurisdiction and asked for an acquittal during closing arguments in November of that year, a strategy the defence has carried forward in its appeal.

Donning reading glasses and reading from a legal pad on which he composed his remarks over the course of yesterday’s hearing, Duch told the court that he had been forced to adhere to the line of a “criminal party”.

“The senior leaders, the most responsible persons, were others, not me,” he said. “According to the notion of senior leaders and most responsible persons, we refer to those who had the authority to design the [party] line and have it implemented. It wasn’t me.”

The remarks echoed claims made repeatedly this week by defence lawyers Kar Savuth and Kang Ritheary, who said Duch was no different from dozens of other KR-era prison chiefs throughout the country, all of the rest of whom have escaped prosecution. Duch said S-21 was “like the other torture centres where torture was employed”, claiming he was not permitted to make decisions on the “smashing” of detainees.

“Whatever you were ordered to do, you had to do it, otherwise you would end up being smashed,” he said. “I survived the regime because I respectfully and strictly followed the orders.”

Duch’s address came at the end of a day devoted to appeals of decisions on reparations and civil party admissibility in the original judgment, handed down last July. In that judgment, Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions, sentenced to 30 years in prison.

Prosecutors have accused Duch of lacking remorse for his crimes and have called in their own appeal for him to have his sentence increased to 45 years, commuted from a life sentence only because of his excessive pre-trial detention.

Co-prosecutor Andrew Cayley said yesterday that Duch’s cold address had “underscore[d] all of the arguments that we made about sentencing”. Prominent civil party Bou Meng, one of the few living survivors of S-21, said he too was unmoved by Duch’s plea for acquittal.

“Whether he received orders from his superiors or he did it by himself, he has to be punished,” Bou Meng said.

Civil party lawyers argued yesterday that the reparations awards in the July judgment, which called for statements of apology made by Duch at trial to be collected and published and for the names of admitted civil parties to be printed in the verdict, were insufficient.

“The victims feel that such apologies are not genuine, and that when the apologies or names are published on the website, it’s not acceptable for the victims or the civil parties, who by no means have access to such materials,” civil party lawyer Kim Mengkhy said. “It is meaningless.”

Civil party lawyers have proposed ideas including the construction of a memorial stupa at S-21 and the recommendation that the government name a national commemoration day for victims, though the Trial Chamber found last year that these proposals were outside the scope of reparation options available to the court. In the aftermath of the judgment last year, the tribunal adopted rule changes that will allow judges to grant more expansive reparation awards in future cases.

An additional point of contention yesterday was the Trial Chamber’s decision to declare inadmissible the claims of 24 civil parties among the 90 who had been involved in court proceedings throughout the case. Civil party lawyer Hong Kim Suon said the tribunal had “outright misled” these people by not informing them that their claims could be rejected until the day of the verdict.

Kang Ritheary argued, however, that civil parties needed to present evidence to substantiate their claims.

“You cannot just make a plain statement and then it becomes evidence,” he said.

Duch himself mentioned the victims only briefly yesterday, allowing that he did maintain responsibility for “suffering at S-21 and for psychological damage for the victims throughout the country”. In closing his remarks, however, he returned to the issue of jurisdiction and his own limited culpability.

“I would urge your honours to decide and consider, on the issue of personal jurisdiction, that I do not fall within the jurisdiction [of the tribunal]”, he said. “This is the principle you should abide by in order to seek justice and truth for the Cambodian people, as well as for the former Khmer Rouge soldiers and cadres, especially the middle level, who do not fall within the jurisdiction of this tribunal.”