DETERMINING AN APPROPRIATE SENTENCE FOR DUCH

Charles Jackson, 2009 Documentation Center of Cambodia Legal Associate
Northwestern University School of Law, 2011

Kaing Guek Eav (alias Duch) has admitted that he is responsible for acts of torture, enslavement, persecution and extermination while working as the head of Tuol Sleng prison, also known as S-21. During the Khmer Rouge Era, from 1975-1979, Duch was chairman of the Communist Party of Kampuchea’s Special Branch of the Secret Police, S-21. Prior to this time, Duch was chairman of Office 13 (M-13), a security office in Kampong Speu province.

S-21 was located in Phnom Penh and operated uniquely within the network of Khmer Rouge security centers across Cambodia because it was the only one with a direct link to the Central Committee (the central Khmer Rouge government) and because it alone was used for the detention and execution of Khmer Rouge cadre.

During his time as head of S-21, Duch divided the security office into two units: the defense unit and interrogation unit. He delegated administration of the defense unit to a subordinate and maintained direct oversight of the interrogation unit. The interrogation unit was subdivided into the document unit, the special unit, and various other groups, including photography, medicine, cooking, and logistics. Duch ran S-21 on hierarchical lines, maintained reporting systems to make sure his orders were followed exactly, and was described by at least one witness as being feared by everyone. While under his control, prisoners at S-21 were subjected to starvation, torture medical experimentation, and almost always killed. In total, over 12,380 detainees were executed at S-21.

The crimes admitted to by Duch during the Khmer Rouge Era will likely to be found to constitute crimes against humanity and grave breaches of the Geneva Conventions of 1949, therefore justifying criminal punishment imposed by the Extraordinary Chambers in the Courts of Cambodia (ECCC). When punishing criminal conduct committed by the senior leaders of the Khmer Rouge, the ECCC is limited to a minimum sentence of five years and a maximum sentence of life imprisonment. This wide range of possible punishments leads many to wonder how the Court should decide the appropriate sentence for Duch.

Sentencing Guidelines of the ECCC

For any given legal question, the ECCC has been directed to first consider Cambodian practices, and then look to international jurisprudence in cases where the Cambodian legal system leaves an unanswered question or where Cambodian practices do not meet international standards. With regard to criminal sentencing guidelines, Cambodian law does not seem to address how to determine appropriate sentences for crimes against humanity and grave breaches of the Geneva Conventions; so it seems that the ECCC will look to international jurisprudence for answers.

International sentencing practices have been developed through textual guidance and, in some cases, case law from a variety of international criminal courts, including the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC), the Special Court for Sierra Leone (SCSL), and the Special Panels for Serious Crimes in East Timor (SPSC in East Timor).

In accordance with practice at these international tribunals, courts prosecuting serious international crimes determine appropriate criminal sentences by examining the gravity of the crimes committed and the personal circumstances of the convicted person being sentenced.

The most important consideration for sentencing is the gravity of the offenses that the convicted person committed. This analysis includes an examination of the nature and scope of the crimes, which essentially asks: what crimes were committed and what was the effect of those crimes. Courts also consider the role that the convicted person played in furthering those crimes.

After considering the gravity of the offense, courts then look at the personal circumstances surrounding the convicted person. These circumstances generally include any aggravating or mitigation factors that a court feels may justify a heightened or lessened penalty for the wrongdoer. Although courts are given discretion as to what factors to consider, the textual guidelines provided to the ICTY, ICTR, ICC, SCSL and SPSC in East Timor direct courts to mitigate sentencing for crimes committed pursuant to superior orders and for convicted persons who substantially cooperated with the prosecution. Additionally, through case law developed at those courts, it is general practice to mitigate sentencing for persons who express remorse for their crimes and/or persons who accept responsibility for their crimes. When examining aggravating factors, courts have commonly justified a heightened punishment for cases where crimes were committed against particularly vulnerable victims, involved particular cruelty, affected multiple victims, or motivated by discrimination.

Criminal Sentencing Guidelines Applied to the Duch Trial

As previously stated, international courts first look at the gravity of the offense, including the nature and scope of the crimes, as well as the role of the accused in committing those crimes. When assessing the nature and scope of crimes against humanity, courts have found the crimes of torture, execution, and persecution to be particularly heinous and worthy of a heighted penalty. In the case of Duch, it seems the crimes committed were of the most heinous nature and affected tens of thousands of people. Duch has claimed responsibility for acts of torture, extermination, persecution, and enslavement while acting as the chairman of S-21. These crimes were committed against at least 12,380 detainees, but the numbers are likely much higher as witnesses have testified that children were often killed upon arrival at S-21, before being documented. The effect of Duch’s crimes likely goes beyond those tortured and killed at S-21 or Choeung Ek (an execution site of S-21), extending to the families and friends of those detainees who suffered the loss of their loved ones and the fear that they too will be arrested, tortured, and executed. As for Duch’s role in furthering the crimes he has admitted to, as the Chairmen of S-21 Duch had absolute authority over the staff and detainees kept there. Indeed, many witnesses have testified that everything done at S-21 was carried out pursuant to Duch’s orders. Therefore, it seems Duch played a substantial, possibly integral, role in furthering the heinous crimes committed at S-21 and Choeung Ek.

Based on the substantial role Duch played in committing serious international crimes, as well as the heinous nature of his crimes and the wide affect of these crimes, it seems the ECCC may find it appropriate to impose the maximum penalty of life imprisonment. However, before making a final sentencing decision, the Court will likely examine other factors that may indicate the need for heightened or lessened punishment based on the personal circumstances of Duch and his crimes.

When examining the personal circumstances surrounding Duch’s crimes, it is important to first note that the Trial Chamber has complete discretion to decide which factors to consider and how much weight to give those factors.

Considering possible factors that indicate the need for a heightened punishment, it seems likely that the ECCC will aggravate sentencing based on findings that Duch’s crimes were committed against a particularly vulnerable population and the fact that Duch was in a position of leadership over the group of individuals who helped carry out the acts of torture, enslavement, and execution.

International courts have generally found that when a convicted person was in a formal position of authority over a group of people that collectively committed war crimes or crimes against humanity, it is to be considered an aggravating factor necessitating a harsher penalty. In Duch’s case, the accused was the chairman of S-21 and reported directly to the Central Committee. Additionally, Duch has admitted in court that he was in a position of authority over the staff of S-21 who committed most of the tortures and executions. Lastly, since the ECCC only has jurisdiction over senior leaders and those most responsible for serious crimes during the Democratic Kampuchea period, by definition, Duch has been determined by the Court to have held a position of significance. Based on these facts it seems the ECCC Trial Chamber may want to consider a heightened punishment for Duch.

International courts have also generally held that sentencing is aggravated by findings that the victims of the offense included especially vulnerable populations, such as women, children, the elderly, or prisoners in custody. When looking at the victims of Duch’s crimes, it seems that they too would be found vulnerable when judged against these international standards. Indeed, his victims included civilian men, women and children, detained at S-21 under Duch’s control. Therefore, it seems likely that the Court would find the victims’ status to justify a heightened punishment.

Despite the fact that Duch committed some of the most grave crimes imaginable and that there are aggravating factors justifying a heightened punishment, there also exist mitigating factors that indicate it may be appropriate for the Trial Chamber to give some reduction in Duch’s sentence, below the maximum of life imprisonment.

Based on international jurisprudence, Duch’s sentence could be mitigated if the ECCC Trial Chamber finds that Duch has done one or more of the following: 1) substantially cooperated with the prosecution; 2) committed his crimes pursuant to a superior order; 3) accepted guilt and responsibility for his crimes; and/or 4) expressed sincere remorse for those crimes. It is important to note that, in order to establish any of the above factors in court, Duch need only show that it is more likely than not to be true.

International jurisprudence holds that cooperation can be a mitigating factor so long as it is “substantial;” To judge whether cooperation meets such a burden, courts look at the extent and quality of the information provided to the prosecution by the convicted person. Additionally, some courts have found that the attitude of the convicted person, while in court, may also be used to determine whether they “cooperated.” In the case of Duch, the facts seem to indicate that it is more likely than not that the accused has been substantially cooperative and respectful of the Court. For instance, on the second day of his trial, Duch expressed a willingness to answer all questions asked by the Court and civil parties. At times, it seems Duch has followed up on this pledge, offering details of his own crimes, the crimes of the Khmer Rouge generally, as well as elaborating on the structure, policies, and operations of the Central Committee. Indeed, the investigating judges seem to have found that he cooperated even before trial, stating in the Closing Order indicting the accused that “Duch has cooperated willingly in the judicial investigation.”

A second factor that may lead the ECCC to mitigate Duch’s sentence is the fact that Duch likely committed his crimes pursuant to government orders. According to the Rules of the ICTY, ICTR, and SCSL, actions “pursuant to an order by the government or superior does not relieve of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal decides justice so requires.” In the case of Duch, while it seems that the accused played an active role in developing and furthering the policies of the Khmer Rouge, it also seems likely that he was carrying out orders he received from his superiors. The Closing Order indicting Duch seems to support this assertion, stating that Duch was acting under the orders of Son Sen and the Central Committee. While testifying, Duch has repeatedly made this argument, stating that he only committed his crimes because he was afraid for his life if he did not obey the orders of his superiors. On the other hand, some witnesses have argued that Duch was given loose instructions from the Central Committee and went beyond the requirements of his orders when he created and implemented policies mass of torture and execution at S-21. Nonetheless, it is possible the Court will find it necessary to give some mitigation to his punishment in recognition of the fact that he was following orders.

The third factor the Court will likely consider is whether Duch’s acceptance of guilt qualifies for mitigation purposes. To be considered a mitigating factor, the Trial Chamber will likely first consider whether or not Duch’s acceptance of guilt is “unqualified.” Despite the fact that Duch was recognized by the investigating judges as having accepted guilt, it seems that the accused may be equivocating his acceptance of guilt by subtly shifting all blame onto his superiors. In his apology, made on Day 2 of the trial, Duch explained how he was guilty for the crimes at S-21, but that “from the 17th of April 1975, to the 6th of January 1979, the Democratic Kampuchea party was exclusively in charge of the crimes in Cambodia .”

Furthermore, even if Duch has fully accepted guilt for his crimes, the purpose for mitigating a criminal sentence for an accused who accepts guilt may be absent in this case. Courts tend to lessen a criminal sentence for accepting guilt because it lessens the burden of proof on the prosecution and creates a speedier, efficient trial. But in this case, Duch has clearly stated that he will not accept guilt for anything the prosecution does not prove in court. Therefore, a substantial reason for mitigation is absent, regardless of whether or not Duch is fully accepting guilt for the crimes that the prosecution can prove.

The last factor the Court will likely consider is the expression of remorse Duch made on the second day of his trial. International law has recognized remorse as a mitigating factor for criminal sentencing when remorse is found to be “sincere.” To analyze the sincerity of an accused person’s statement of remorse, courts use an objective standard that looks at the statements and behavior of the accused, such as a voluntary surrender or guilty plea.

In Duch’s case, his statements alone may pass an objective test for sincerity, but his actions seem to indicate otherwise. The accused tried to show his sincere remorse when he made an apology on Tuesday, March 31st, 2009, the second day of hearings at the Trial Chamber. At that time, he expressed his “regretfulness and heartfelt sorrow and loss for all the crimes committed by the [DPK] from 1975-1979” and that that he is “very regretful, and…very shameful.” He went on to say that he constantly prays for forgiveness from both his family and the victims. Duch also said that he never wanted to commit the crimes he committed, but was forced to by the Khmer Rouge under the threat of death.

However, it is important to remember that Duch only made these statements after being involuntarily indicted and put on trial for his crimes. After the Vietnamese entered Phnom Penh , Duch had opportunity to leave the ranks of the Khmer Rouge. However, he voluntarily chose to flee with them, and subsequently went into hiding under a false name. So, despite making statements in court that indicated he was against the Khmer Rouge policies, Duch stayed with the Khmer Rouge over a decade after having the opportunity to leave their ranks.

Because Duch’s expression of remorse seems inconsistent with his past actions and because it was not made until he was involuntarily captured and put on trial, his remorse may not be considered fully sincere. Therefore, it may not be appropriate for the Trial Chamber to include it as a mitigating factor.

When trying to consider what the total sentence should look like, it is important to remember that the accused is on trial for some of the most heinous crimes of which any human is capable. Furthermore, the need for criminal sentencing seems aggravated by the fact that Duch played a substantial role in furthering the crimes he is on trial for, and the fact that his crimes were against at least some victims who seem particularly vulnerable. However, there are some important mitigating factors present in Duch’s case that indicate the need for a punishment below the maximum of life imprisonment. As discussed, many of Duch’s actions were done pursuant to government orders coming from the Central Committee. Additionally, Duch has substantially cooperated with the prosecution, leading to a relatively more speedy trial and helping to corroborate evidence that may prove useful against other former Khmer Rouge leaders who have been charged by the ECCC. Therefore, it seems appropriate for the Trial Chamber to issue a sentence that is near, but slightly less than, the maximum punishment of life imprisonment.