Khmer Rouge jailer appeals war crimes conviction

By Suy Se

PHNOM PENH, March 28, 2011 (AFP) - Lawyers for former Khmer Rouge prison chief Duch called for his release on Monday, arguing at an appeal that he was only following orders when he oversaw the deaths of some 15,000 people.

Duch, whose real name is Kaing Guek Eav, was sentenced to 30 years in jail in July by Cambodia's UN-backed war crimes court for war crimes and crimes against humanity for his role at Tuol Sleng torture prison in the late 1970s.

He was the first Khmer Rouge cadre to face an international tribunal, and both defence and prosecution are appealing against the punishment in a three-day hearing at the court.

During his trial, the jailer repeatedly apologised for overseeing mass murder at the prison -- also known as S-21 -- but shocked the court by finally asking to be acquitted in November 2009.

Duch's lawyer Kar Savuth told the Supreme Court Chamber that his client had only the "very lowest rank" in the communist party and was simply following orders from above.

"Duch was just a minor secretary who had no real authority to make decisions or to do anything contradictory to the direction or the order from the upper echelons," he said.

The "superior orders" defence was most notably used at the Nuremberg trials after World War II, when it was ruled that it that it did not absolve Nazi war criminals of responsibility for their actions.

The Duch defence team argued that the tribunal had no right to try their client because he was not one of the regime's senior leaders, nor one of those most responsible for the crimes committed.

"Duch was just a tool used by those people and he should fall outside the jurisdiction of the (court) for this reason," Savuth said. "If there is any doubt (about jurisdiction) then the accused should be acquitted and not found guilty."

Duch, wearing a white jacket and a powder-blue shirt, said the main point of his appeal was the court's jurisdiction to try him, rather than questions of fact.

"So this is purely a legal matter," he said, before returning to his seat.

At his trial the 68-year-old was initially given 35 years in jail but the sentence was reduced for the years spent in illegal detention.

Given time already served, Duch could walk free in less than 19 years, to the dismay of many victims of the 1975-1979 hardline communist movement.

Clair Duffy, a court monitor with the Open Society Justice Initiative, said it was "a risky time" for the defence to be raising the jurisdiction issue "which would usually have to be raised... at pre-trial stage at the latest".

The prosecution urged the court to dismiss the defence appeal.

"Duch is the most responsible person for the crimes committed within the framework of S-21," said co-prosecutor Chea Leang.

The prosecutors, whose own appeal will be heard on Tuesday, want Duch's sentence increased to life, to be commuted to 45 years for time served in unlawful detention.

A ruling on the appeals is expected in late June.

For Norng Chan Phal, a former child survivor of S-21, the acquittal request proved too much.

He stormed out of the courtroom on Monday afternoon, throwing his water bottle on the ground in anger.

"This is crazy," yelled the man, who was about nine years old when he walked out of Tuol Sleng.

Led by "Brother Number One" Pol Pot, who died in 1998, the Khmer Rouge wiped out nearly a quarter of Cambodia's population through starvation, overwork and execution.

S-21 in Phnom Penh was at the centre of the regime's security apparatus and thousands of inmates were taken from there for execution in a nearby orchard.

Duch has been detained since 1999, when he was found working as a Christian aid worker in the jungle. He was formally arrested by the tribunal in July 2007.

Four more of the regime's former members -- including "Brother Number Two" Nuon Chea -- are due to go trial later this year and Duch is expected to appear as a witness in the case.