Why Remorse Should Not Matter at the ECCC

Rehan Abeyratne

Legal Associate with the Documentation Center of Cambodia

Harvard Law School



“Every time I recalled the past I was still attached to the remorse that I have had. I will not betray my remorse and I will not just let my remorse fade away. I will always remember it. I am so painful (sic).”[1]--Kaing Guek Eav (alias Duch)



Through such seemingly heartfelt statements, Kaing Guek Eav (alias Duch) has expressed remorse for the egregious crimes that took place under his command as Chairman of Tuol Sleng Prison (S-21) during the Khmer Rouge period (1975-79). He claims responsibility for those crimes and refuses to blame subordinates for the cruel, degrading and, ultimately, murderous treatment of S-21 detainees. However, Duch has also maintained that he acted under duress. Had he not followed the regime’s instructions and “smashed” all the S-21 detainees, he claims he and his family would have been killed by the regime.



Duch therefore appears to have adopted a two-pronged defense strategy. Realizing the weight of evidence against him as the principal authority at S-21, Duch is not contesting his guilt per se. He is focused instead on downplaying the seriousness of his crimes by expressing remorse while simultaneously claiming that he acted under duress. Duch seems resigned, then, to the fact that the Extraordinary Chambers in the Courts of Cambodia (also “ECCC” or “Court”) will find him guilty, but remains determined to mitigate his sentence. The ECCC Law does not explicitly allow for mitigation in sentencing,[2] but the Court may draw on jurisprudence from other international criminal tribunals that has taken into account genuine remorse in sentence mitigation.[3]



In the ECCC context, though, this approach would be misguided. With regard to Duch in particular, remorse should not be a mitigating factor because: (1) it is incoherent (and disingenuous) to simultaneously express remorse and claim duress over one’s actions; (2) the ECCC is not equipped to accurately assess the sincerity of the accused’s remorse; and (3) remorse does not advance any of the broader purposes of criminal justice such as rehabilitation, incapacitation, deterrence, retribution or even restorative/symbolic justice.



Remorse and Duress are Incompatible

Legally, criminal liability requires both an act (actus reus ) and a culpable mind (mens rea). To find a defendant guilty of murder in the United States , for instance, the prosecution must prove that a defendant acted (i.e. shot a gun) with the purpose of killing or causing serious injury to the victim. If the defendant only shot the gun by accident (no act), or did not intend to harm the victim (no mens rea), then the charge and the resulting sentence are mitigated, if not dismissed entirely.



Thus, when Duch claims that he acted under duress, he effectively admits to having acted inappropriately, but without the requisite mens rea to be found guilty. He admits to having ordered the torture and killing of thousands of civilians at S-21, but claims that he did so reluctantly and only pursuant to superior orders. If Duch did not choose to act, he cannot be accused of possessing the sort of reprehensible mental state (mens rea) during his time at S-21 that we associate with the worst criminal offenders. Rather, by claiming “duress”, which is a legally cognizable “excuse”,[4] Duch is basically asserting that his actions were reasonable in the circumstances. If the ECCC accepts this argument, it may acquit him or, alternatively, find him guilty but mitigate the resulting sentence.



The problem with the duress defense in this instance is that Duch is buttressing it with supposedly genuine expressions of remorse. But if Duch was forced to act against his will, why is he sorry for his crimes? If he truly believed that he and his family would have been killed had he not acted as the regime instructed, wouldn’t he act exactly the same way if he were again presented with that same terrible choice? If so, aren’t his expressions of remorse incoherent, if not insincere?



It is, of course, plausible that Duch is sorry for the suffering experienced by those detained and killed in S-21 and their loved ones. This sort of empathy, though, is distinct from the remorse that Duch has conveyed in Court—remorse for his actions. While duress is a legitimate defense, it is simply incompatible with remorse. In short, there is no reason to be sorry for acts that were commanded, on pain of death, by higher authorities. At its essence, duress as a defense derives from the recognition that a defendant acting pursuant to coercion is not in a mental state that deserves, or would benefit from, criminal punishment. In other words, it recognizes that the accused is not responsible for crimes that he did not choose to commit. Thus, from a legal perspective, it is incoherent to simultaneously express remorse for one’s actions and claim duress.



More broadly, if one cannot reasonably express regret for actions compelled under duress, then Duch’s apology also fails to deliver the sort of symbolic or restorative justice that it is supposed to deliver. A sincere apology may have provided some solace or sense of forgiveness among the victims’ relatives and the handful of S-21 survivors. As a result, it could have contributed to Cambodia ’s ongoing healing process. But an apology combined with a claim of duress is, by definition, insincere and works against the goals of restorative justice.



Duch’s apology rang hollow when he added that he only acted as he did because senior Khmer Rouge leaders forced him to. To be meaningful, an apology must carry with it a sense of admission and responsibility for one’s actions. If the ECCC considers remorse as a mitigating factor in this case, it would not only be legally problematic but it would also trivialize the restorative or symbolic justice that the Court purports to deliver to Cambodian society.



How Do We Assess the Sincerity of Remorse?

Moving beyond the Duch trial, the sincerity of an accused person’s remorse is generally difficult to gauge, even if not expressed in conjunction with duress. The ECCC, in particular, seems ill equipped to make this determination.



Remorse, by its nature, is judged subjectively. Unlike duress, which is a binary defense relating to the factual circumstances surrounding a crime—either one acted under duress or one did not— a remorse claim can only be successful if it is believable to others; specifically, it must sound credible to the judges. This can be problematic in two ways.



First, on an individual level, people convey remorse in different ways. Duch has appeared intelligent, well prepared and quite respectful before the Court. But he does not seem likeable, or at all emotional. Thus, his expressions of remorse do not seem as heartfelt or warm as they would coming from one more prone to theatrics or emotional outbursts. I was at Court on one of the days when he launched into a long, contrite and (probably in his view) genuine apology for the terrible crimes that took place at S-21. However, because he delivered the apology in the same formal, authoritative tone that he uses throughout his testimony, it appeared disingenuous to me—I expected more of a Hollywood moment, filled with tears and excessive emotion.



The judges, too, likely have presuppositions about what constitutes “genuine” remorse, which not only vary among them, but may also comport more closely with my extravagant notion of remorse than Duch’s more restrained version. It seems unfair to hold the accused to a standard that is neither fixed nor objective. The accused should not be penalized for possessing a manner and personality that may not adhere to our common expectations.



In a similar vein, the accused should also not be held to an unknown cultural standard. It seems plausible, if not likely, that the foreign judges conceive of an “apology” differently from their Cambodian counterparts. What appears to be genuine, heartfelt remorse in one society may seem disingenuous or fake in another. Thus, when expressing remorse, the accused at the ECCC must conform not only to the personal expectations of the judges, but also to their cultural expectations to be successful. These expectations, apart from lacking any objectivity, are unstated and are possibly only subliminal. As a result, when expressing remorse, the accused are unaware of the standard/s under which they are being judged.



Each individual expresses emotion, including remorse, in his or her own way and neither the ECCC, nor any court for that matter, is more capable than I in distinguishing genuine from feigned remorse. The ECCC should therefore stick to what it knows best—the law—rather than attempt to psychologically analyze the accused. By considering remorse as a mitigating factor, the ECCC would, in effect, stray from its institutional expertise and perform this pseudo-scientific analysis. Because individual and cultural biases unavoidably cloud this analysis, judging the sincerity of remorse should not be the province of the courts and certainly should not factor in the sentencing of the accused at the ECCC.



The Purposes of Criminal Justice

If we examine criminal punishment at a broad, theoretical level, it is difficult to justify remorse as a mitigating factor. If the ECCC considered remorse in sentencing, remorse would not really promote any of the five broad purposes of criminal justice: rehabilitation, incapacitation, deterrence, retribution and restorative justice.



The ECCC does not focus on rehabilitation. Domestic criminal systems, by contrast, focus heavily on rehabilitating individuals with felony convictions to mould them into productive members of society. Theoretically, criminal punishment, such as prison time, is supposed to give these individuals time to reflect and the discipline to reform. At the ECCC, reform or rehabilitation is less important.



Because it only has temporal jurisdiction over the Khmer Rouge period (1975-79), the ECCC is limited to prosecuting individuals who committed serious crimes in that era. Thus, the accused are now in their late sixties to eighties and therefore incapable and probably unwilling to commit serious crimes again. Moreover, they have already reentered ordinary society. Duch, for instance, was employed as a schoolteacher when he was captured in 1999.



Thus, unlike in the domestic context, where a defendants’ remorse (i.e., a guilty plea) is probative of his capacity to reform and contribute positively to society, the accused at the ECCC are too old and reintegrated into society for their remorse to serve this purpose. The same can be said with regard to incapacitation. While in the domestic context it makes sense to detain or otherwise incapacitate offenders to make society safer, the accused at the ECCC, in their present state, do not present any danger to society. Thus, incapacitation is not really one of the purposes of criminal punishment at the ECCC. Since the accused at the ECCC already pose no physical threat to society, their remorse—which would only help gauge if they are fit to reenter society—is redundant in this context.



With regard to deterrence, remorse is likewise unhelpful. The ECCC does promote general deterrence to some extent.[5] By holding senior political leaders criminally accountable, the Court is fighting impunity both in Cambodia and, symbolically, anywhere in the world where political regimes have committed egregious crimes. The mere creation of the ECCC signals the international community’s refusal to sit idly by as governments commit serious crimes against individual rights. While this is an important aspect of international criminal law, the accused’s expressions of remorse do not contribute to it at all. Deterrence is achieved by the very fact that there are tribunals such as the ECCC with the capacity to impose criminal punishment on political leaders. It is achieved regardless of whether or not Duch and any of the other accused Khmer Rouge leaders apologize for their actions.



In delivering retributive justice, the ECCC likewise has no use for remorse. “Retribution”, as a legal concept, refers to punishment that is deserved for the crimes committed. It is justified by the moral culpability of the individual receiving punishment and derives not from the victims’ desire for vengeance, but from society’s disapproval of the perpetrator’s acts. Acting on behalf of society, the ECCC will dole out punishment that is proportionate to the crimes committed by the accused. In this role, the Court acts as a moral guide—it seeks to furnish the accused with just desserts for their wrongs against society.



The accused’s remorse does not reduce the severity of their crimes because retribution is justified at a societal level. Thus, even if some of the accused express heartfelt apologies that are believed by some victims and their relatives, there will inevitably be others who will not believe or simply will not accept such apologies. Moreover, this remorse is not communicable to the thousands of victims that were killed. Retributive justice must be carried out for the sake of the deceased and on behalf of society as a whole, not its constituent parts. In other words, even in the unlikely event that all Cambodians forgive the accused Khmer Rouge leaders, the latter have still caused great damage to society by unlawfully taking the lives of so many. If retribution is society’s moral response to wrongdoings, then the accused’s remorse should not mitigate the appalling crimes and the disruptive consequences to Cambodian society that followed.



Finally, with respect to restorative justice, remorse could potentially play a role in helping Cambodian society recover from its terrible past. If some of the other accused leaders express remorse (but do not render it incoherent by combining it with duress), it may provide some solace to the victims and their relatives. But as discussed earlier, the acceptance of remorse by others is completely subjective and therefore impossible to predict. With any public apology, some portion of the public is likely to believe it, while the rest will not, but neither the Court nor anyone can forecast exactly how many will fall into each camp. Thus, it is too speculative to consider remorse as a mitigating factor simply on the basis that it may provide some measure of restorative justice to some undefined elements of Cambodian society.



Given that it serves no other broad purpose of criminal justice at the ECCC; that it is difficult, if not impossible, to measure objectively; and that, at least in the Duch trial, it is simply incoherent, if not insincere, remorse should not be taken into account in sentencing decisions before the ECCC.