DUCH’S 8-YEAR DETENTION RULED UNLAWFUL (BUT THOSE DETAINED AT S-21 WERE TREATED “LIKE DEAD PEOPLE” AND “REGARDED AS ANIMALS”)

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

DUCH’S 8-YEAR DETENTION RULED UNLAWFUL (BUT THOSE DETAINED AT S-21 WERE
TREATED “LIKE DEAD PEOPLE” AND “REGARDED AS ANIMALS”)
June 15, 2009

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

Provisional Release Denied, But Previous Detention Violated Duch’s Rights

In a long-awaited decision, the Trial Chamber announced today that the
detention of Kaing Guek Eav (alias Duch) by a Cambodian Military Court
lasting over eight years was unlawful and a violation of his rights. The
detention violated the three-year ceiling for provisional detention imposed
by Cambodian law, at the time, and the prosecutor appeared at times to
single-handedly extend Duch’s detention without sufficient investigation or
legal reasoning. Accordingly, if Duch is acquitted by the ECCC, he may seek
appropriate remedies for his detention in the domestic legal system. If Duch
is convicted by the ECCC, he is entitled to “credit” for the time he was
wrongfully detained, specifically from May 10, 1999 to July 31, 2007 when he
was transferred to the custody of the ECCC pursuant to an arrest warrant
issued by the Office of Co-Investigating Judges. The Chamber refrained from
commenting on the nature or extent of remedies to which Duch may be entitled
for other related violations of his rights.

In the same decision, the Chamber denied Duch’s request for provisional
release, noting “the need to ensure [Duch’s] presence” at trial and “the
gravity of the crimes for which he is accused.” Consequently, he will
continue to be detained at the facility adjacent to the ECCC until the
conclusion of the trial proceedings.

The Chamber also announced some of the results of the in camera trial
management meeting that halted the proceedings last Thursday. Noting that
the parties’ estimates about the conclusion of the trial range from August
to December 2009, the Chamber has decided to limit time for questioning
witnesses, other than Duch, allocating thirty minutes to the prosecution,
forty minutes to all civil party groups combined, and forty minutes to the
defense. Civil parties cut down their requested time for civil party
testimony from sixty to thirty-seven hours and estimate they will call
twenty-one witnesses, excluding survivors. The Chamber noted that during the
meeting the civil parties raised concerns regarding their lack of financial
support, poor working conditions, and the unavailability of some counsel
after August 2009. The Chamber explained that the first two concerns, while
outside the Chamber’s jurisdiction, are being considered by ECCC
administrative officials and the availability issue will be addressed by the
ECCC Victims Unit. The Chamber also announced it will be sitting one less
day each month in order to alleviate its heavy work-flow and vowed to have
an updated schedule issued as soon as possible.

Duch’s Avoidance of the Sights, Sounds, and Smells of S-21 “Beyond
Cowardice”

Hundreds of high-school students and Cham villagers crowded the public
gallery today to hear Duch’s testimony on the operations of Tuol Sleng
prison (S-21). I hope the visiting villagers did not make exciting lunch
plans for their day in Phnom Penh. After hours of graphic details about the
disturbing treatment of prisoners at S-21, none of my usual lunch partners
had much of an appetite. It was a very dark day in the courtroom.

Under questions from the Chamber, Duch explained how blindfolded,
hand-cuffed male prisoners were stripped down to their underwear upon
arrival at S-21 before being photographed and taken to cells where they
remained shackled twenty-four hours a day. “Less important” prisoners were
taken to common rooms, rather than individual cells, and shackled in a row
with other prisoners. They were unable to sit up or communicate without
permission. There were no bathroom facilities, so prisoners were forced to
defecate on the spot. Prisoners were never allowed to change clothes and
“bathing” involved spraying by a hose – the main purpose of which was to
clean the floor rather than the prisoners themselves. No comforts were
provided for sleeping, such as pillows, mats, or mosquito nets. Duch said
the beds shown in some photographs of S-21 must have been added for
prisoners after 1979. Prisoners were never allowed outside unless they were
selected to do some sort of manual labor. Prisoners were not unshackled or
released if they fell ill; rather, they were given medical attention only if
staff needed to keep them alive to undergo interrogation. Gradually, all of
the medical staff were determined to be enemies and detained at S-21, so
Duch himself had to turn to detainees for health advice.

Duch explained that S-21 was a place where people were detained before they
were executed, so there were no safeguards to protect rights. Prisoners were
treated “like dead people” and “regarded as animals.” Duch said he was aware
at the time that many prisoners died of starvation because inadequate
rations were provided. Duch opined that no one in Cambodia had enough food
and that he only weighed forty-nine kilograms during that period.

“Special” or “important” prisoners had slightly better conditions, including
individual cells and “more polite” treatment, because Duch’s superiors were
very interested in their confessions, which could implicate many others
within the Communist Party of Kampuchea ranks. While there was some
disagreement on numbers, Duch made clear that the few Westerners were given
better treatment as well.

Women and children made up a little over twenty-three percent of the victims
at S-21 and they, too, were treated a bit differently. Women were generally
allowed to wear clothes and were allowed outside their cells at times. There
were some female interrogators, but no female guards. At least half of the
female prisoners were only at S-21 due to their relationship with a male
prisoner and were not alleged to have committed any offense. Women were
separated from their children, sometimes as young as one-year old, so the
women could be interrogated and the children “smashed.” There was a strict
policy not to allow any communication among family members at S-21.

Aside from the horrific details about S-21’s conditions, the most striking
aspect of the testimony today was Duch’s real or perceived distance from
S-21’s daily operations, despite the fact that his office was nearby and he
served as the chairman. Duch claims he never visited the main detention
facility and only on a few occasions visited the facility where “special”
prisoners were kept. Duch was unable to answer many simple questions, such
as whether women had a bathroom and what was done with all the prisoners’
clothes. He could not say whether there was loud screaming or terrible
odors. On several occasions, Duch instructed the judges to direct detailed
questions on S-21 operations to upcoming witnesses, such as Comrade Hor, his
deputy.

After seeing Duch take such an active role in his defense, it is extremely
difficult to imagine Duch being so hands-off in his management of the S-21
facility. At trial, Duch is well-prepared and detail-oriented. He recites
eight-digit electronic reference numbers for various documents from memory.
He corrects world-class interpreters on their French translations. He
strives to get all the facts straight for the record, both big and small.
Thankfully, at the end of the day, Judge Lavergne pushed Duch on his claim
that he never visited S-21 and Duch finally poured out his heart and made
the judges understand. Duch explained it was not the stench that kept him
from S-21; rather, he could not bear to witness the suffering of those under
his authority and allow those friends he had betrayed to see his face. Duch
said he had to avoid S-21 altogether because whenever he would get close he
would become emotional. Duch said, “I closed my eyes, closed my ears. I did
not want to see the real situation.” Judge Lavergne asked if this should be
considered “cowardice” to which Duch replied, “I think it was beyond
cowardice.”

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

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

Transform the River of Blood into a River of Reconciliation. A River of Responsibility.
Break the Silence.