DETAILS ABOUT DUCH’S ROLE AT S-21 EXPLORED, WHILE DETAILS ABOUT CIVIL PARTIES’ ROLE IN TRIAL AVOIDED

Observing the ECCC. Daily Report; please visit: www.cambodiatribunal.org

DETAILS ABOUT DUCH’S ROLE AT S-21 EXPLORED, WHILE DETAILS ABOUT CIVIL
PARTIES’ ROLE IN TRIAL AVOIDED
June 22, 2009

By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law

Operations at Duch’s “Execution Chamber”

Following intense questioning last week from all five Trial Chamber judges
on the operations of Tuol Sleng prison (S-21) and the killing fields at
Choeung Ek, Kaing Guek Eav (alias Duch) was on the dock this morning to
answer lingering questions from the prosecution and civil parties on the
same topic.

The Cambodian Co-Prosecutor announced his questions were intended to show
Duch’s participation in the arrest, interrogation, torture, and killing of
S-21 prisoners. In contrast to the detailed but general questions from the
judges last week, the prosecution presented Duch with a series of specific
documents, mainly prisoner confessions Duch had annotated by hand, and some
very interesting testimony emerged. While Duch received orders from the
upper echelon of the Communist Party of Kampuchea (CPK) regarding how to
interrogate and torture high-ranking or important prisoners, he admits he
had the responsibility and authority for ordering torture of ordinary
prisoners. Annotations show Duch gave specific interrogation instructions
regarding what questions should be asked and what level of torture should be
used. For example, Duch instructed an interrogator to beat a female prisoner
until she admitted that she traveled to Vietnam not for medical treatment
but for treacherous activities.

The prosecution also presented a hand-written letter from Duch to an
interrogator giving the interrogator authority to torture a certain
high-ranking prisoner to death. Duch explained that this letter was “a
trickery” later shown to the prisoner to entice him to cooperate and
confess. Duch has maintained that he prohibited interrogators from torturing
prisoners to death, although he admits those who violated this rule went
unpunished.

For the first time today, Duch admitted that torture was sometimes used to
reprimand prisoners for bad behavior, rather than solely to extract
confessions. Describing the one time Duch admits to beating a prisoner, he
said he slapped the prisoner to punish him for lying.

Responding to questions on the popular topic of food for prisoners, Duch
tried to justify the extremely scant rations by explaining that S-21 was not
like a regular law enforcement prison, rather it was a “depository for
people to be killed” or “an execution chamber.” Duch said he does not deny
his crimes against humanity regarding food rations.

When asked how Duch looked at his family at night after putting children to
death during the day, Duch explained that his child’s survival was dependent
on his survival and that he had to follow orders to protect his wife, six
siblings, and parents.

Duch’s Line Drawing

Over the course of the last week, it has become clear that Duch makes strict
distinctions among practices that are not logically separate. For instance,
last week and again today, Duch explained how he secretly sabotaged a
medical experiment of high-ranking CPK member Nuon Chea by swapping powder
in capsules that he suspected to be poisonous with a safe powder before
administering the capsules to prisoners. He passionately explained that he
did not want to kill those prisoners with his own hands, but showed no
emotion when he described ordering that those same prisoners be “smashed”
shortly thereafter. Is ordering that a blindfolded prisoner be stabbed in
the neck so different than giving them a poisonous capsule? While Duch
admits that his role makes him more responsible for killing prisoners than
those who carried out their executions, Duch still seems to equate direct
physical contact with direct responsibility at an emotional level.

Duch also draws curious distinctions among various forms of torture. While
Duch admits to authorizing beatings, suffocation, dropping water in
nostrils, and electrocution to male genitals, he was adamantly opposed to
pulling out fingernails and toenails. He describes this form of torture as a
“criminal act” that he prohibited immediately after becoming aware of it.
While at times he seems opposed to a form of torture merely because it was
unauthorized, such as the forced eating of excrement, he also admits to
allowing interrogators to continue using the unauthorized psychological
torture of forcing prisoners to pay homage to a dog because of the
effectiveness of the practice. Duch also appears extremely disgusted by the
sexual abuse of at least one female that occurred.

While there are undoubtedly explanations one could give for such
distinctions, Duch does not offer any. He acts as though such distinctions
are a matter of common sense.

Did Duch Do More at Lunch Than Eat?

In a series of narrow questions, International Co-Prosecutor William Smith
probed Duch’s working habits at length with particular focus on his lunch
and dinner breaks. Duch described 12-hour working days in which he had two
meals at a communal dining hall and spent the rest of his time secluded in
his office with daily visits from his deputy, Comrade Hor, and assistance
from his three communications clerks. Smith worked hard to establish that
Duch ate two meals a day in a room surrounded by guards, interrogators, and
all other staff from S-21. Duch claims he did not speak to anyone except his
regular tablemates, such as Comrade Hor, and that he ate quickly so he could
rest and return to work. Given that Duch claims he visited S-21 rarely and
had limited knowledge of day-to-day operations, one can only presume Smith
will later seek to establish through witness testimony that Duch gave orders
or had some sort of meaningful interaction during his dining breaks.

Given that Duch claims he followed CPK upper echelon orders out of fear,
Smith also asked a series of questions aimed at demonstrating Duch, in fact,
was not very fearful. Duch agreed that his superiors did not complain about
his work and trusted him because of his loyalty and honesty. However, Duch
described living in constant fear, which escalated when his former superior,
Von Vet, was arrested. Duch claims at that point he could not eat or work
because he was “waiting for death.” Smith, however, presented a document
with Duch’s annotations from that time period, which confirmed he had in
fact continued working.

The Ongoing Debate on the Role of the Civil Parties

No one in the courtroom dares to deny the importance of the civil parties,
but no one has been able to articulate clearly what their role is.

On June 16, after the Chamber allocated time to the parties for questioning
Duch on S-21 operations, International Defense Counsel Francois Roux started
up a debate over the role of the civil parties when he lumped them together
with the prosecution. Roux insisted that the time imbalance – six hours to
the “super prosecution” and only four hours to the defense – could be the
subject of an appeal at a later stage. That day, the prosecution clearly
articulated its unique role, while the civil parties explained they were not
a duplication of the prosecution, but rather sought to voice the victims’
point of view. The Chamber cut off the debate without comment and moved on.

Today, a similar debate arose in a different context. While one of the civil
party lawyers was questioning Duch on the medical experiment he sabotaged,
Roux objected that the civil parties were not directly affected by the issue
at hand since no civil parties were injured. Roux said their questions
should express the viewpoint of the victims and not repeat the work of the
prosecution.

Civil party lawyer Silke Studzinsky sought guidance from the Chamber on how
to respond to such a fundamental attack on the role of the civil parties,
while civil party lawyer Alain Werner seemed to give Roux the benefit of the
doubt, opining that Roux was not attacking the role the civil parties had
been playing the entire trial, but merely asking them not to be repetitive.

Roux was, in fact, making the broader challenge. Roux responded that while
he was not seeking to restrict the role of the civil parties, he wanted
their role to be “completely distinct” from the prosecution. Roux read aloud
from a treatise which described victims as playing a “secondary role.” He
said their questions should relate to the suffering of the victims only and
parties must stick to their roles to ensure an equitable trial.

After further heated comments from the civil parties, the Chamber
intervened. In brief remarks, President Nil Nonn cited ECCC Internal Rule
23.1 and said that the Chamber will allow civil party questions to support
the prosecution. He provided some reminders to parties about keeping
questions short and relevant, but provided no further clarification on the
role of the civil parties. Without further Chamber comments on the matter,
one can assume this will not be the last time the role of the civil parties
is debated.

Internal Rule 23.1 states that “[t]he purpose of Civil Party action before
the ECCC is to: a) Participate in criminal proceedings against those
responsible for crimes within the jurisdiction of the ECCC by supporting the
prosecution” (emphasis added). Also somewhat on point, Rule 90 states that
after the judges question the Accused, “the Co-Prosecutors and all the other
parties and their lawyers shall have the right to question the Accused.”
There is no mention of substantive limits on the civil parties.

Managing Time Sometimes Wastes Time

Since the closed trial management meeting on June 11, the Chamber has had an
increased focus on time management and has implemented new limits on the
parties. Today was the first time such time limits have been imposed. After
its three-hour window expired for questioning Duch, the prosecution
petitioned for a 20-minute extension to cover “core” topics. After a
10-minute debate in which the defense argued the prosecution should better
manage its time and matters of such importance should have been prioritized,
the Chamber sought clarification as to what the prosecution wished to
achieve with its questions and allowed them to proceed.

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JAVIS WRONG CHOICE FOR VICTIMS' UNIT
http://www.phnompenhpost.com/index.php/2009062226618/National-news/Jarvis-wrong-choice-for-Victims-Unit.html

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Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

Youk Chhang, Director
Documentation Center of Cambodia
P.O. Box 1110
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
t: +855 23 211 875
f: +855 23 210 358
h: +855 12 905 595
e: dccam@online.com.kh
www.dccam.org

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