Duch Hides Behind His Orders

By David Scheffer, Professor and Director of the Center for International
Human Rights, Northwestern University School of Law

International Co-Prosecutor William Smith continued his closing arguments in
the trial of Kaing Guek Eav (alias Duch) before the Extraordinary Chambers
in the Courts of Cambodia (ECCC). The defense rose following his statement,
first with the defendant Duch speaking and then his Cambodian defense
counsel, Kar Savuth, delivering his entire closing argument. The
international defense counsel, François Roux, will present his closing
argument on Thursday, November 27.


International Co-Prosecutor William Smith

Smith described Duch as a perpetrator of multiple forms of liability under
Article 29 of the ECCC Law, in other words, someone who planned, instigated,
ordered, aided and abetted, and committed crimes against humanity and war
crimes. Duch had to fulfill all these modes of participation in order to
establish and operate S-21, Smith argued. He also charged Duch as a superior
who failed to prevent the crimes of or to punish his subordinates. In fact,
he hired staff for the express purpose of committing crimes.

Smith made the case for joint criminal enterprise liability (JCE) as well
before the judges. This is an issue that has been deferred to the merits
judgment of the Duch case, so the international co-prosecutor was compelled
to make his best argument for it in his final submission. JCE captures the
essence of Duch’s responsibility, Smith argued. The efficiency of S-21 could
not have been achieved without the planning and collaborative work with both
superiors and subordinates that Duch orchestrated as chairman of the prison.

The statutes of other international and hybrid criminal tribunals of the
modern era refer to the same modes of liability as does the ECCC Law, and
therefore Smith inferred that what emerged from those tribunals as JCE
should be applicable to the ECCC as well. He said that the drafters of the
ECCC Law intended it to be part of the body of international precedents
represented by the tribunals. Thus, refusing to apply JCE as a mode of
liability would put the ECCC at odds with the very tribunals it was intended
to model itself after.

The grand criminal vision of JCE is to employ others as a tool to achieve a
criminal goal. The result can be far more serious commission of crimes than
when they stand alone. JCE, Smith proposed, perfectly captures the scope of
crimes by Duch. The co-prosecutors obviously disagree with the Pre-Trial
Chamber’s ruling that denied JCE and Smith requested that the Trial Chamber
find Duch guilty of JCE.

Regarding Duch’s personal commission of crimes, they were limited to a small
number of very significant acts, Smith contended. He should be guilty, the
co-prosecutor said, under the mode of physical commission of crimes as well.
Smith concluded that the co-prosecutors had proven beyond a reasonable doubt
crimes against humanity, grave breaches of the Geneva Conventions, and two
categories of violations—homicide and torture—of the 1956 Penal Code of
Cambodia.


Sentencing

Smith delivered a lengthy statement about the sentencing of Duch in the
event he is proven guilty of the charges (to which he already has admitted
his guilt). Smith said that in international criminal jurisprudence there
are no real guidelines on sentencing. It was necessary to look to the
sentencing principles of other tribunals. Under those standards, the
sentence must reflect the gravity of the crimes. Here there was the utmost
gravity in both number and type of crimes which were committed daily and
systematically at S-21. The crimes committed had long-term physical and
mental impacts on the victims and their relatives. Three survivors of S-21
who testified in the case are permanently scarred from their imprisonment
and severe mistreatment, including emotional instability. The family
survivors extend around the world, with many families ripped asunder by what
happened to their loved ones at S-21. For some, suicide has been the only
way to deal with grief. The number of such family victims is unknown, but
surely, Smith believed, they must number in the tens to hundreds of
thousands. The costs are still being felt today, with countrywide post
traumatic stress disorder experienced by countless victims.

The extent of Duch’s participation depends upon the court’s examination of
whether Duch inflicted pain with his own hands and whether, with his
superior position at S-21, he inflicted such pain through the work of others
he supervised. If both, he becomes more culpable. If he engaged in such acts
enthusiastically, then his criminal participation becomes even more serious.
If he acted voluntarily and with pre-meditation, then his participation
reaches its zenith. In fact, Duch stayed with the Communist Party of
Kampuchea (CPK) throughout the violence. He was an effective leader, Smith
argued, who relished in transforming staff into killers. He mastered all
details of his work. As chairman of S-21, Duch had significant
responsibility for a wider net of torture. Thousands were arrested,
tortured, and killed at Tuol Sleng. He toured interrogation cells,
personally kicked detainees, and forced prisoners to fight each other. Duch
was one of the most effective tools of CPK policy to seek out and kill
assumed enemies. Indeed, what he accomplished has rarely been matched in
world history regarding the scope and callousness of the criminal conduct.

Smith reminded the court that Duch was highly educated, intelligent, and
logical. He made the choice to be part of the CPK rather than to withdraw
from it. As chairman of M-13 for four years prior to Pol Pot’s rule of
Cambodia, Duch knew what was expected of him—to arrest, detain, interrogate,
torture, and execute CPK enemies. Indeed, he personally tortured many times
himself during those years.


Aggravating Factors

Smith then advanced the aggravating factors that should guide the court’s
consideration of a sentence for Duch. First, Duch’s authority at S-21 was
not itself an aggravating factor, but how he used it may be. He should have
protected the rights of the detainees there and he failed to do that. In
fact, he did the opposite. He never acted as if he were under any duty to
protect the welfare of the prisoners.

Second, the infliction of unusual pain and suffering on victims is an
aggravating fact, Smith argued. What he oversaw was particularly savage,
sadistic, and ruthless. The catalog of brutality at S-21 was truly grotesque
and Smith went on to describe how that was so. The terror, shock, and fear
were beyond our imagination, he said. Prisoners saw what foreshadowed their
own fate. “Imagine what each prisoner felt when fellow prisoners disappeared
and they waited for their own names to be called. Imagine how many
contemplated suicide,” Smith suggested.

Smith described the defenselessness of the victims at the killing fields. He
suggested that all three of these aggravating factors are directly relevant
and must be taken into account in Duch’s sentence.


Mitigating Factors

He next turned his attention to mitigating factors in the sentence. On the
issue of duress, the evidence does not support Duch’s claim that he hated
his work. He was a man of terror, not a victim of terror. The defense has
not proven, Smith argued, that Duch was subject to the terror that began to
grip the country in 1978. As Elizabeth Becker has written, Smith said, Duch
was one of a half dozen of the most important leaders in the country at that
time. He spread terror throughout Cambodia in his capacity as chairman of
S-21. He designed the terror machine and he was an enthusiastic participant
in it.

The defense of superior orders, which is addressed in Article 29 of the ECCC
Law, requires that a subordinate relying on the defense as a mitigating
circumstance must show the order had an influence on his behavior. But the
defense collapses if the defendant would have committed the crime anyway
without specific orders. Duch actually desired to carry out the revolution
and smash its enemies, rather than simply comply with orders. In sum, duress
and superior orders do not apply with respect to duress and thus should not
be considered as mitigating circumstances.

Cooperation with the court is a mitigating factor under international
criminal law. The test rests on the quantity and quality of the information
provided and if it is given selflessly without any quid pro quo. Early
cooperation also is important, as is cooperating in the investigations of
other trials. If the information provided is limited or not entirely true,
then cooperation would not be considered sufficient. Duch made the choice
not to surrender from 1979 to 1999. For 20 years, he was a fugitive; indeed
for the first 15 years of that period, he collaborated as a fellow fugitive
with the senior leaders of Democratic Kampuchea. He changed his name and did
not reveal his connection to S-21. Only when photographer Nic Dunlop tracked
him down did he find it impossible not to reveal the truth. He would not
have been arrested and imprisoned but for Dunlop’s persistent tracking of
him.

Granted, Duch has provided evidence recently regarding the CPK and with
respect to other charged senior leaders. But, Smith contended, Duch only
admitted part of the truth regarding his own conduct. He essentially has
confessed, “I did really terrible things but it’s not my fault; it is the
fault of my superiors.”


Smith Hits at the Defense Strategy

Further, the defense strategy at the trial, Smith explained, is to try to
limit the court’s efforts to review the facts. The cumulative effect of the
defense’s challenges is to try to reduce the impact of the crimes and Duch’s
own liability for them. The defense has claimed little evidence that would
bring Duch into the ECCC Law Article 1 personal jurisdiction of the court.
The defense objected to any evidence being admitted regarding Duch’s
behavior at M-13 prior to the temporal jurisdiction of the court. That
deprives the court of reviewing evidence regarding the character of Duch as
a killer. In contrast, defense counsel wanted the court to hear about Duch’s
good behavior as a young student, long before the atrocities of 1975-1979.
The defense also objected to detailed witness summaries, a tactic clearly
designed to make the voluminous written evidence less easily available to
the court. Judges need summaries as a roadmap to understand key issues in
the case. But the defense aim was clear—to instill less clarity.

The defense objected to a reserve witness list, which would fill gaps if
witnesses suffered memory loss or some other setback. Smith considered
reserve witnesses essential because the court has prohibited the
co-prosecutors from meeting with witnesses in advance. Since most witnesses
were former S-21 staff, it is difficult to know whether the particular
individual will lie or limit the information requested out of a sense of
personal guilt or embarrassment. This actually proved true during the trial,
with a general reluctance to speak freely. When the defense energetically
advised a witness who had been an S-21 interrogator that he might be
prosecuted in national courts, the defense sent a message all similar
witnesses that they might be prosecuted in national courts. The defense
injected fear into every S-21 witness. The tactic does not encourage
witnesses to tell the truth; in fact, the defense took great pleasure in the
witness not telling the truth. Finally, the defense sought to limit the
documents to be delivered to the court, including documents relating to
expert Craig Etcheson’s findings on the existence of an international armed
conflict.

Thus, on one level Duch provided evidence regarding the CPK regime and he
assisted in providing information voluntarily to the court. On another
level, however, Duch was not cooperative about his own role at S-21. He
stated a truth only when it proved too difficult to maintain a falsehood.
“You cannot challenge the trial process throughout and then claim you have
cooperated with the court,” Smith said.

Regarding Duch’s admission of guilt, Smith described it as limited in
character. When pressed on his own involvement in the crimes, Duch was
always recalcitrant in the courtroom. He claimed he was forced to torture
and kill. He must, Smith demanded, accept and face up to the truth with the
enthusiasm of an argent revolutionary. He has not accepted full
responsibility for crimes before this court. His remorse is limited by his
denial of responsibility. Duch has an inability to empathize.

Would a reduced sentence for Duch contribute to national reconciliation?
Smith said it is a legitimate consideration, but Duch’s behavior has not
added significantly to national reconciliation. The purpose of the court is
to end impunity. A heavily reduced sentence would hamper and not help
reconciliation. National reconciliation is the by-product of the trial, not
its purpose. Duch’s admissions cannot have any impact on peace in the
country. He failed to demonstrate that a lighter sentence would be
advantageous for national reconciliation. “Humanity must be made whole by
sternly punishing one of its own,” Smith said. “That will do far more to
advance reconciliation than a disproportionately lower sentence.”


Smith Requests a 40-Year Sentence

Smith spoke favorably of giving Duch credit for the time he served under the
jurisdiction of the Cambodian military court prior to his arrival at the
ECCC. That prolonged detention was a serious violation of international law.
“Here, the rule of law must apply,” he proposed. When an accused is not
brought to trial in a reasonable period of time, such a violation of law
must be remedied. Smith recommended that given the gravity of the crimes in
this case, the court should start with life imprisonment for Duch’s
sentence. The court should take the breach into account. A fair course of
action would be to commute the sentence of life imprisonment to a
determinant sentence.

Smith claimed that Duch had been met with a fair trial by independent and
impartial judges. He should be sentenced only for crimes he committed. At
S-21, the detainees never had such justice. Duch ensured that they were
treated as animals. Nothing can justify the brutality at S-21. Duch worked
tirelessly to identify, arrest, and “smash” enemies. He repeated apologies
and shed tears at Cheong Ek. Smith acknowledged Duch’s admissions of guilt.
But he saw no remorse in Duch’s refusal to reject his active participation
in the crimes. Whenever possible during the trial, Duch sought to minimize
his role, claiming he was trapped by secrecy and terror. But the court must
not allow him to hide behind false claims, Smith pleaded. Duch was a loyal
and dedicated agent of the CPK.

Smith quoted William Shawcross, the English prosecutor at Nuremberg, who
said, “There comes a point when a man must refuse to answer to his leader if
he is also to answer to his conscience.” Duch refused to answer to his
conscience. He willingly and enthusiastically abandoned all respect for
human life. He had a choice: the abuse of power or his conscience, and he
chose the former.

Smith believed that Duch deserves a sentence of life imprisonment, but that
it had to be reduced to a fixed number of years. He recommended adjusting
the sentence to 45 years to reflect a credit for time served at the military
court and as an additional remedy for being detained there without trial and
contrary to international criminal law. Smith recommended a further
reduction of five years in recognition of Duch’s general cooperation,
conditional remorse, and apologies, and the possible effect his conviction
will have on national reconciliation. Thus, Smith proposed a sentence of 40
years for Duch.

Smith closed by saying that all should be mindful of the dreams and
opportunities denied due to the crimes at S-21. The families of the victims
still suffer today. “This court must speak on behalf of that humanity, that
crimes like these must never be perpetrated again,” Smith said. “Let your
judgment speak of justice and establish criminal responsibility for 12,000
crimes. You are not taking away Duch’s humanity; you are giving it back to
the victims of S-21.”


Duch Speaks

Duch, who again declined to look at Smith during the latter’s statement,
read his closing statement facing the judges and a packed auditorium of
Cambodians. He focused almost exclusively on the CPK’s policy of killing its
alleged enemies and distancing himself from the decision-making that drove
that policy. Both Duch and his Cambodian defense counsel, Kar Savuth, later
referred repeatedly to the practice of “smashing” at S-21 and elsewhere in
Cambodia during the Pol Pot regime years. They could have ceased using that
highly derogatory word, which was part of the Khmer Rouge strategy of
dehumanization, in the courtroom and referred instead to “murdering” or
“killing.” It seemed odd that the very terminology the Khmer Rouge leaders
would want us to apply in conformance with their own usage during the 1970’s
repeatedly infected the court proceedings.

Duch set out a fairly detailed description of how the CPK developed a policy
of killings to protect the Party itself and how internal purges became
standard operating procedure from the beginning. He admitted that before
1975 he already was plunged deeply into the criminal acts that defined the
internal purges. “Anyone the CPK identified as the enemy had to be
smashed—no one could challenge that,” he admitted. He was afraid of being
removed if he did not join in the CPK policy. “I knew how to control and
save myself.” He identified ten individuals who decided who would be killed
and who would be spared. The list included Pol Pot, Nuon Chea, Ta Mok, Son
Sen, and Ke Pauk. No one else had such a right, he contended.

Duch read through a tedious list of the leadership structures (and the
changes therein over time) in each zone of Cambodia, as if to emphasize that
he was not in any of the leadership slots. He claimed he could do nothing
about the overall policy of “smashing.” Pol Pot, he said, was the criminal.
“He wanted to become King.” As for S-21, Duch claimed that it was under the
supervision of Son Sen, to whom all annotated confessions were sent for
transmission to Pol Pot for final decisions. S-21 was unique because members
of the Standing Committee were detained and killed there. “These people were
a thorn in Pol Pot’s eyes,” Duch said. The people killed at the 195 other
detention centers were “innocent and honest people who committed no wrong.”
He said he was still terrified about what happened to all those innocent
people.

Duch said he was responsible and would be forever liable for the crimes at
S-21: “I am accountable to the entire Cambodian population for the souls
that perished. I am deeply remorseful and regret such a mind-boggling scale
of death.” He continued, “I ended up serving a criminal organization. I
could not withdraw from it. I was like a cog in a machine. I regret and
humbly apologize to the dead souls. I acknowledge all of the crimes at S-21
in a legal and a moral context.”

Duch hoped that the victims would leave their doors open for his apology. He
claimed to fully and sincerely cooperate with the courts, including the
military court where he was first detained. He wanted to be recognized again
as a member of humankind.

Duch finished by reading all 34 footnotes to his statement, without any
reference for the audience as to what point in the text the individual
footnote referred. It was an odd finish, but emblematic of the teacher in
Duch and his attention to details.


Defense Counsel Kar Savuth

Duch’s Cambodian defense counsel, Kar Savuth, spoke for almost three hours.
He repeated many times and presented information that he argued supported a
general theme: that Duch was neither a senior leader of the Khmer Rouge nor
someone who had the most responsibility for the commission of the crimes
covered by the court (ECCC Law and UN/Cambodia Agreement Article 1 personal
jurisdiction requirements).

Savuth pointed out that there were 196 security prisons and that each
district had mass graves. Why, he asked, were the chairmen of the other
prisons “living happily with their families” while his client, Duch, sat in
the dock as a scapegoat? Compared with the larger numbers of victims at some
of the prisons, Duch killed very few people at S-21, he said. Savuth
returned to this theme repeatedly throughout his oration.

He also objected to the extension of the 10-year statute of limitations by
30 years for certain designated crimes under the 1956 Penal Code as set
forth in Article 3new of the ECCC Law. He said it violated the
non-retroactivity principle in international law. Since the Cambodian
legislature passed the ECCC Law with the extension, Savuth essentially was
arguing the unconstitutionality of the law (or at least Article 3new) under
Cambodian law—all in an effort to knock out the charges of Article 3new
crimes against his client. Thus the court could not prosecute Duch under
national law, Savuth argued.

Regarding crimes against humanity and grave breaches (war crimes), Savuth
explained that only governments made the decision to go to war and Duch was
only following orders. Further, it was the top leadership who ordered and
thus was most responsible for the actions constituting crimes against
humanity. Since, in Savuth’s view, Duch was neither a senior Khmer Rouge
leader nor someone most responsible for the commission of the crimes at
S-21, he should not be charged under the ECCC Law. He fails Savuth’s test of
personal jurisdiction under that law. In his view, only three individuals
should be prosecuted by the court because only three surviving persons fall
within the personal jurisdiction of Article 1 of the ECCC Law: Nuon Chea,
Khieu Samphan, and Ieng Sary. Furthermore, only these individuals could
order arrests and acts of “smashing.” Duch was at the third tier of
recipients of orders. The top individual was Pol Pot, then Son Sen, and only
then does one arrive at Duch following Son Sen’s orders. “The person who
received orders and executed them is not ‘most responsible’ under the ECCC
Law,” Savuth argued. He kept returning to his scapegoat theme as well,
noting that other chairmen of prisons during the Khmer Rouge regime roam
freely in Cambodian society and should be prosecuted if his client is being
prosecuted. Such inequality of treatment, Savuth contends, violates the
equality provision of Article 31 of the Cambodian Constitution.

While he and his client admit that crimes existed at S-21 (“You can’t cover
an elephant with a rice basket.”), Savuth argued that Duch was not culpable
for those crimes under the Cambodian 1956 Penal Code or the ECCC Law. He
also claimed that Duch acted under duress and Article 238 of the 1956 Penal
Code provides that if one obeys superior orders under duress, then the
prosecution can only be brought against the superior.

Savuth ignored other provisions of the ECCC Law, such as the denial of
defense of superior orders other than for mitigating purposes, and the fact
that sufficient records simply do not exist for the other prison camps that
would ensure successful prosecutions of other surviving prison chairmen. The
voluminous records of S-21, thanks in large part to Duch’s meticulous
attention to detail, and S-21’s notorious and systematic use of torture and
other methods to extract confessions prior to executions arguably provide
the basis for prosecution of him. One must also consider the raw evidence of
what actually occurred at Tuol Sleng and who in reality led in the execution
of the crimes.

Nor did Savuth consider the intent of the negotiators of the ECCC Law with
respect to the scope of personal jurisdiction. He based his entire analysis
on what was established on paper in the CPK regarding the issuance of
orders. The commission of crimes against humanity and war crimes on the
massive scale experienced in Cambodia from 1975 to 1979 cannot rest only on
how the CPK defined its leadership structure on paper. It is up to the
co-prosecutors, co-investigating judges, and judges to determine who
constitutes a “senior leader” and one “most responsible” for the crimes.
Since Duch acknowledged his responsibility for the crimes at S-21, Savuth’s
arguments today appeared awkward in that he was seeking to deny any
culpability under the law for Duch’s actions at S-21. Perhaps international
defense counsel François Roux will clarify matters during his closing
arguments on Thursday morning.