GROUNDWORK LAID FOR PROSECUTION OF ADDITIONAL KHMER ROUGE LEADERS DESPITE NATIONAL CO-PROSECUTOR’S OBJECTIONS

September 2, 2009

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

Today’s proceedings in the trial of Kaing Guek Eav (alias Duch) were
overshadowed by a very important decision from the pre-trial chamber
regarding the disagreement between the national and international
co-prosecutors about whether to prosecute additional Khmer Rouge leaders.
Pursuant to the ECCC’s constitutional documents and the Internal Rules, the
dispute was submitted to the pre-trial chamber where a super-majority of
four out of five judges is required to reach a binding decision. The
pre-trial chamber was unable to resolve the disagreement between the
co-prosecutors with a super-majority decision. In cases where the pre-trial
chamber cannot resolve such a disagreement with a super-majority, the
Agreement between the United Nations and the Royal Government of Cambodia,
the ECCC Law, and the Internal Rules specify that the investigation of
additional suspects for prosecutions shall proceed.

The Office of the Co-Prosecutors first informed the public about this
disagreement in December 2008. The international co-prosecutor, Robert
Petit, asserted that additional prosecutions are necessary to fulfill the
mandate of the ECCC, which is to bring to justice senior leaders and those
most responsible for the crimes that were committed in Democratic Kampuchea
between 1975 and 1979. The national co-prosecutor, Chea Lang, disputed the
fact that the suspects identified in the new Introductory Submissions were
senior leaders of the Khmer Rouge. Furthermore, she asserted that additional
prosecutions would have a detrimental impact on the peace, stability, and
national reconciliation in Cambodia. Finally, she argued that existing
trials would be put in jeopardy because additional prosecutions would strain
the budget and resources of the court.

The disagreement between the co-prosecutors received media attention due to
allegations of inappropriate political tampering by the government of
Cambodia. These allegations suggested that the national co-prosecutor’s
position was based on political considerations rather than independent
judicial concerns. The pre-trial decision further exacerbates the divide
between the international parties and the national parties, as the three
Cambodian judges sided with the national co-prosecutor and the two
international judges sided with the international co-prosecutor.

The pre-trial chamber’s decision lays the groundwork for additional judicial
investigations, but it is still too early to speculate on whether such
investigations will materialize into additional prosecutions. Before
commencement of additional investigations, the new international prosecutor
will have to decide to move forward with the Introductory Submissions. (The
former international co-prosecutor Robert Petit resigned this week,
explaining that his departure was due to family reasons and in no way
related to his disagreement with his national counter-part on this matter.
William Smith is acting as the international co-prosecutor until a permanent
replacement to Robert Petit is appointed.) Thereafter, the co-investigating
judges must determine that their investigation of the facts warrants charges
against suspects named in the Introductory Submissions. Further developments
relating to the potential prosecution of additional leaders of the Khmer
Rouge will be closely monitored as they will have wide-ranging implications
for the ECCC and the Government of Cambodia.

Duch resumes testimony

During the substantive portion of the proceedings, two of Duch’s former
colleagues, Hun Smien and Peng Poan, echoed many of the same sentiments as
Duch’s former students and classmates. Specifically, they described Duch as
a gentle and quiet teacher who was well-liked by students and staff. Based
on their interactions with Duch, they never suspected him of having been a
senior leader of the Khmer Rouge. They learned about Duch’s background only
after his arrest in 1999. Even today, Smien explained, he finds it extremely
hard to comprehend how Duch was involved in such serious crimes.

The trial chamber then recalled Duch to the stand to question him on issues
of his character. He was asked to give his opinion on policies of the Khmer
Rouge generally, and of Toul Sleng prison (S-21) specifically. For example,
he was asked how he felt about the use of children guards at S-21 and the
Khmer Rouge policy that eliminated educational institutions in Cambodia. He
rarely answered these questions directly. Instead, he responded that his
personal opinions were irrelevant because he had to be loyal to the Khmer
Rouge whose policies had to be followed unconditionally.

In response to a lengthy line of questioning, Duch told the chamber that he
became aware of the criminal nature of the Khmer Rouge regime only after he
joined the revolution. At that point, he explained, it was too late to
leave. He described several attempts to be re-assigned to different
positions within the party. He asked to be re-assigned to the ministry of
culture and the ministry of energy but his superiors denied his requests. He
also told the chamber that he asked to be demoted from his position at the
M-13 prison after a prisoner escape occurred under his watch. He described a
feeling of apprehension when he was appointed as chairman of S-21 but
explained that he was not permitted to refuse the post.

Duch explained that he remained under constant surveillance even after the
fall of the Khmer Rouge. He considered himself a prisoner of the regime and
told the court that he feared for his life. He asserted that Khmer Rouge
cadres were responsible for an apparent robbery in November 1995 in which he
was injured and his wife was killed. He learned of the re-integration of
Ieng Sary and many other former Khmer Rouge leaders in 1996. Duch explained
that he wanted to contact Ieng Sary in an attempt to be reintegrated into
the government but he was not able to do so before his eventual arrest.
(Ieng Sary was convicted in absentia of the crime of genocide by an ad-hoc
Cambodian tribunal in 1979. In 1996 he was granted a pardon by King Sihanouk
and was reintegrated in the government. However, he has recently been
arrested and charged with crimes within the jurisdiction of the ECCC.)