CIVIL PARTIES BOYCOTT START OF CHARACTER WITNESS TESTIMONY WHILE EXPERTS OFFER PSYCHOLOGICAL ASSESSMENT OF DUCH

August 31, 2009 By Michael Saliba, J.D. (Northwestern Law ’09), Consultant
to the Center for International Human Rights, Northwestern University School
of Law

The civil parties that have consistently attended the trial of Kaing Guek
Eav (alias Duch) were conspicuously absent from the courtroom this morning.
In an impromptu press conference held at the entrance of the court just
minutes earlier, Chum Mey, a civil party and survivor of Tuol Sleng prison
(S-21), explained that 28 civil parties were boycotting the proceedings this
week to contest the trial chamber’s ruling that barred their lawyers from
questioning character witnesses. The civil parties expressed their dismay at
what they perceived as a restriction of their legal rights and a silencing
of their lawyers. They argued that truth and justice could not be achieved
if they were not given the opportunity to question character witnesses to
help them understand the motivations and intentions of the accused.

The civil parties planned to release an open letter to the trial chamber to
request a reversal of its decision. It is unclear whether the civil party
attorneys will formally appeal the trial chamber’s decision. (While certain
types of decisions considered to be particularly prejudicial to one of the
parties are subject to an immediate interlocutory appeal, an appeal against
this particular decision would have to be made at the same time as an appeal
against the judgment on the merits.)

The civil parties also expressed several complaints of unequal treatment
between the civil parties and the defense. They noted that while Duch is
well-fed and is provided adequate accommodations by the tribunal, civil
parties are given no assistance and many struggle with their daily living
conditions. Similarly, they explained that while the defense counsels are
paid a generous salary by the tribunal, the civil party lawyers receive no
compensation and are often required to work on a pro-bono basis. They also
complained that Duch has insulted the victims of S-21 with certain comments
made to the tribunal. Finally, they asserted that the delay in naming a
replacement for the outgoing international co-prosecutor Robert Petit is
further exacerbating the imbalance between the defense and prosecution. (On
August 29, the Supreme Council of Magistracy of Cambodia chose the current
deputy international co-prosecutor, William Smith, to serve as the acting
international co-prosecutor until a permanent replacement is appointed.)


Experts present findings of psychological assessment of Duch

After a brief explanation from Alain Werner regarding the absence of the
civil parties, the trial chamber swore in Francoise Sironi-Guildbaud, a
French psychologist, and Ka Sunbaunat, a Cambodian psychiatrist, to jointly
present a summary of their psychological assessment of Duch, which they
performed at the request of the Office of Co-Investigating Judges. Their
findings were based on thirteen interviews with Duch as well as an
assessment of his actions such as his emotional apology to victims at S-21
and Choeung Ek.

They testified that Duch never suffered from a mental disorder but that he
resorted to many psychological defense mechanisms which enabled him to act
in the way he did. He often took actions under the rationalization that he
had no other choice. He isolated himself and avoided many situations so that
he would not see and hear what was happening within the prison walls. Most
notably he resorted to psychological “splitting” in which he was able to
separate different and contradictory activities in his life. This allowed
him to accept two contradictory versions of reality and explains how he was
able to engage in certain conduct such as having children and being a good
father while concurrently presiding over a prison where children were being
systematically executed.

One of the hotly contested issues during the trial has been the genuineness
of Duch’s apology and stated remorse. Many civil parties have rejected Duch’s
apologies, accusing him of insincerity. Despite questioning from the
prosecution and the defense, the experts refrained from opining directly on
this issue. However they did reiterate their observation that Duch’s
demeanor shifted throughout the period of their evaluation. They explained
that in the later series of interviews he displayed a much greater capacity
for sympathy and a desire to help provide reparations. They also noted that
unprompted by questioning, Duch expressed his remorse and informed them that
he would seek forgiveness.

Guildbaud and Sunbaunat also addressed Duch’s conversion to Christianity
which has been criticized by many as nothing more than an attempt to have
his sins absolved. They explained that this concept of baptismal rebirth
offered him the possibility of achieving a new identity and personality,
despite the sins of his past.

Finally, Guildbaud and Sunbaunat suggested that Duch could be rehabilitated.
In an attempt to challenge this determination, the prosecution argued that a
full rehabilitation would not be possible because even if Duch was
personally ready and willing, the society in which he would need to be
rehabilitated would not accept him. Sunbaunat responded by suggesting that
even though members of the society were not ready to forgive Duch, he could
nonetheless live within that society, just as many other Khmer Rouge leaders
have done since the government’s policy of reconciliation.