DUCH DENIES THAT ANOTHER “SURVIVOR” WAS IMPRISONED AT S-21

July 6, 2009

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

The Trial Chamber started off the day by announcing the removal of yet
another witness from the list of those set to testify during the trial of
Kaing Guek Eav (alias Duch). After a strange day of testimony by civil party
Ly Hour in which few, if any, new facts regarding Tuol Sleng prison (S-21)
came to light, I expect the Chamber will increase its standards even further
and more witnesses will be struck from the list.

Last week, after a day of detailed testimony by child survivor Norng Chan
Phal, Duch argued he was never a prisoner at S-21 because all children were
killed as a matter of policy and none ever escaped. Duch noted there were no
documents demonstrating Chan Phal or his mother ever arrived at S-21. Duch’s
challenge came in the late afternoon and appeared to shock all parties,
including the judges. Today, the defense took a new approach announcing Duch
refuted the fact that the witness was an S-21 survivor before the witness
began to testify. The defense stated that it made the challenge known early
so the judges and parties could question accordingly. President Nil Nonn
brushed the suggestion aside, responding that the defense would be given an
opportunity to verify Ly Hour’s statements during the defense’s regular
question time. However, not long into the President’s examination of the
witness, certain questions from the bench were clearly aimed at determining
if Ly Hour was in fact at S-21.

57-year-old Ly Hour had trouble understanding questions put to him and
recalling the events from 1975 to 1979. After defecting from the Khmer Rouge
army and being arrested sometime in 1975, he allegedly spent time in four
detention facilities – Office 15’s prison, Ta Kmao Psychiatric Hospital,
S-21, and Prey Sar re-education camp, also known as S-24. The lines among
these four facilities seemed to be blurred in his memory and his testimony.
At Ta Kmao, he claims he was interrogated three times and beaten into giving
confessions before being transferred to S-21 where he was interrogated only
once. He spent about a month at S-21 before being transferred to S-24 from
which he eventually escaped by swimming across a river.

While the four S-21 survivors who testified last week all provided
statements consistent with details that have emerged throughout the
proceedings, Ly Hour’s testimony was quite different. Ly Hour could not
recall having a photograph taken when he arrived at S-21. He said he did not
receive an identification number. He received three baths per week outside
the cell during which his handcuffs were removed. He was allowed to keep his
clothing and wear it. He ate rice or soup twice a day. He described the
guards as scared and recalled one giving him medicine. He was not tortured,
although he was beaten for spilling the urine container in his group cell.
When a man died in his cell, the corpse was removed immediately. These
procedures and conditions are much more humane than those that have been
described in detail time and again. Ly Hour testified that he knows he was
at S-21 because an S-21 guard told him so.

Compounding the confusion of Ly Hour’s testimony, the documents used by the
Chamber to examine him, including his alleged biography and confessions,
were only available in Khmer, lacked origin information on their face, and
came from the Documentation Center of Cambodia (DC-Cam), a Phnom Penh-based
non-profit organization. While most of the documents had been submitted to
the ECCC along with Ly Hour’s civil party application, he displayed great
confusion about the origin of the documents, whose handwriting appeared on
the documents, and how he came across the documents before trial. Ly Hour’s
lawyer, Alain Werner, asked that the documents be read out for the parties.
He was later scolded by Judge Silvia Cartwright for having a lack of
facility with the documents and asked him whether he agreed that the witness
was “very poorly prepared.” Werner explained there had been a problem
getting the documents translated and that he had in fact met with the
witness three times prior to his testimony. Judge Cartwright stated that she
and her colleagues expect better preparation of civil parties in the future.

Judge Lavergne pressed the issue of the origin of the documents and Werner
suggested he could get a sworn affidavit from DC-Cam stating that the
documents came from S-21. Later, the defense asked several questions about
Ly Hour’s interaction with DC-Cam. As with the questioning of Chan Phal, the
defense’s approach toward Ly Hour implied that he had been given a biography
from DC-Cam who fed him the idea that he had been at S-21 when he had
actually been at another prison. On several occasions, the defense has
subtly and not so subtly introduced the possibility of DC-Cam bias into the
proceedings. Given that DC-Cam has spent the last 12 years tirelessly
collecting hundreds of thousands of documents on the Khmer Rouge era, a
large percentage of the documents at play in the Duch trial were provided to
the ECCC by DC-Cam. Therefore, if substantiated, such accusations of DC-Cam
bias could have a wide impact. To my knowledge, however, there is no
evidence to substantiate the defense’s implication of DC-Cam bias or
tampering.

The most interesting part of today’s proceedings occurred when Duch was
given an opportunity to respond to Ly Hour’s testimony. After a confusing
day of questions and answers in which no one seemed to know what was going
on, Duch stood confidently and delivered a well-organized statement. Duch
confirmed that some of the documents originated from S-21 because he
recognized the annotations of two of his subordinates on them. Duch pointed
out that “Ea Hour,” the name Ly Hour went by before 1979, is listed as
“smashed” on the prosecution’s revised S-21 prisoner list. Another document
stated that “Ea Hour” was released. In this context as well as others, Duch
maintains no one was ever released and the original S-21 head, Nat, had
produced some fake lists of release to cover up unauthorized executions.
Duch said, “According to these documents, Comrade Ea Hour already died.”
Drawing on his days as a math professor, Duch did some adding and
subtracting and noted that the age of “Ea Hour” listed in the biography does
not accord with the age Ly Hour would have been at the time. Duch
acknowledged that Ly Hour suffered and was tortured, but argued it must have
been at another detention center.

The revised prisoner list states that an Ea Hour entered S-21 on November
10, 1975. When the defense asked Ly Hour where he was on that date, he said
he was in his home province. Ly Hour’s lawyer failed to confirm or deny that
the Ea Hour on the prisoner list is one and the same as the Ea Hour from the
biography and confessions referenced throughout the day.

No one today openly questioned Ly Hour’s motives. Everyone seemed to
perceive him as a traumatized victim doing his best to recall what happened
to him over 30 years ago. While his testimony could demonstrate the
possibility of release from S-21 to S-24 and the possibility of escape from
S-24, it is unclear how much weight the Chamber will give it.