Duch Seeks an Aquittal and Immediate Release

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

Cambodian Defense Counsel Kar Savuth delivers his rebuttal
The final day of the closing arguments in the trial of Kaing Guek Eav (alias
Duch) before the Extraordinary Chambers in the Courts of Cambodia (ECCC) was
a combative and surprising end to this historic trial held three decades
after the atrocity crimes of the Pol Pot era. On this day, Duch’s admitted
guilt was transformed into a request for acquittal, and the expectation of
his incarceration for the crimes committed at S-21 was repulsed with his
demand to be released so that he might walk a free man again. The civil
party victims and hundreds of Cambodians sitting in the public gallery
witnessed an astonishing display of hubris and arrogance that may reveal
itself as a cynically smart defense strategy some day, but appeared almost
obscene as a direct assault on the entire purpose of international justice
and the preservation of memory.

International Co-Prosecutor William Smith’s Rebuttal

Rebuttals continued today with International Co-Prosecutor William Smith
immediately launching into a counter-attack against the co-defense counsel
on several levels. He took great exception to defense counsel’s allegations
that the prosecution was “using untruths” in its case against Duch. He
pointed the judges to all of the prosecution’s submissions, including the
160-page final written submission with its 1,000 footnotes. “Look at the
evidence rather than the rhetoric,” Smith counseled. He had acknowledged the
limited cooperation of Duch on page 6 of his final brief, including that
Duch had been generally cooperative and apologetic and that such conduct
should be a mitigating factor in the sentencing. The defense counsel’s
accusation that there had been no such acknowledgment “is an untruth and
completely inaccurate.”

Smith addressed the judges: “You have been grossly misled by defense
counsel. Their brief has nothing addressing mitigating circumstances.
Throughout this trial and the briefing for it, defense counsel have accepted
that Duch will [essentially] plead guilty. Certainly not acquittal! But they
asked for acquittal yesterday based on Duch’s cooperation with authorities.
This needs to be rectified. The defense is leaving its client behind and
that’s improper conduct. If the accused has instructed defense counsel to
seek an acquittal, then he should benefit from no mitigating factors on his
sentence.”

Yet Smith pondered a different scenario. “I have a feeling that is not the
case. I believe counsel have acted without instructions from their client.
The judges should solve the problem now, today, or else the accused will be
shortchanged or he will appeal the judgment and say his counsel did not act
on his instructions and then we will go through this all over again….What
has Duch asked for—a guilty plea or an acquittal? Answering that question
would avoid an appeal he might raise in the future.”

The next step was to try to unpackage the substance of Duch’s acquittal
submission, if that indeed is what he has done. The defense, Smith said,
claims that Duch benefits from an amnesty, does not fall under the
jurisdiction of national crimes, is free of any evidence of grave breaches
of the Geneva Conventions, and enjoys a full defense because he obeyed
superior orders. International defense counsel François Roux admitted that
things had changed on Thursday and that his client was pleading “not
guilty,” and then he sought mitigation! What seems clear is that they were
asking for an acquittal, but were counsel acting on instructions after
months of representations of expression of guilt for the crimes of S-21?
“This would be unacceptable in any court,” Smith protested.

Smith then addressed some of the particular points raised by defense counsel
the day before. He said that the 1994 amnesty law did not apply as the ECCC
Law effectively withdrew it and even if it had not done so, the amnesty law
still does not apply to this defendant. Further, defense counsel’s sudden
submission of this argument is 1.5 years late, as it should have been filed
in accordance with the procedures set forth in Internal Rule 89. In
addition, Article 29 of the ECCC Law clearly states that superior orders are
no defense and that reflects well-established international jurisprudence on
crimes against humanity and war crimes.

Karim Khan Intervenes

After Smith sat down, Civil Party Group I lawyer Karim A.A. Khan jumped up
and asked the judges to act upon Smith’s request for instructions from Duch
as to which plea he seeks to enter. They should ask Duch immediately so that
the co-prosecutors can react to whatever Duch’s instructions prove to be. He
was met with stony silence from the bench and Cambodian co-prosecutor Chea
Leang was invited to continue the prosecution’s rebuttal statement. Khan sat
upright for several minutes awaiting some response to his request, but that
would not come until later in the morning’s proceedings.

Cambodian Co-Prosecutor Chea Leang’s Rebuttal

Chea Leang opened by saying that the defense should not be seeking revenge,
but justice in its task before the court. “Did crimes exist at S-21, and who
is responsible for them?” The defense failed to bring forward exculpatory
evidence regarding its client and those crimes. She repeated Smith’s point:
“Is it the defense counsels’ request to reduce Duch’s sentence or to acquit
him?” She said the time had already elapsed to raise the issues presented by
the defense counsel yesterday. Chea Leang argued that Duch indeed is among
those “most responsible” for the crimes falling within the jurisdiction of
the court and that the extension of the statute of limitations for offenses
under the 1956 Penal Code was entirely legitimate. This is because the
crimes of homicide and torture under the 1956 Penal Code clearly existed at
the time of S-21. The principle of legality thus was not violated by act of
the National Assembly to extend the statute of limitations for such crimes
an additional 30 years. In fact, the Constitutional Council had examined the
issue in 2001 and rendered two decisions that validated the extension of the
statute of limitations, and there is no appeal from the Council’s final
decision. The crimes themselves were not altered in any way. Enforcement of
the ECCC Law does this violate the principle of non-retroactivity. Duch
should have known that the murder and torture of more than 12,000 detainees
were criminal acts. In fact, he made clear in earlier testimony that he knew
the illegality of the regime. Finally, the Pre-Trial Chamber had already
ruled on the inclusion of murder and torture under the 1956 Penal Code in
Article 3 of the ECCC Law.

Chea Leang described as making no sense the defense counsel’s major argument
that Duch was being made a scapegoat for the crimes of others. She cited the
Lubanga trial at the International Criminal Court. When Lubanga surrendered
to the ICC, he also was accused of being a scapegoat defendant, a charge
quickly rebutted there. Here, the Trial Chamber only looks at the facts of
S-21 and not all crimes committed in Democratic Kampuchea. The crimes of
S-21 have been well listed, she said, and substantiated by ample evidence.
In fact, “he already plead guilty for the crimes!”

Duch was among the most senior and responsible people in the Pol Pot regime,
Chea Leang continued. He was responsible for torture and executions. S-21
was the main security prison in the entire country and it operated with
direct connection to the Standing Committee. The aim of S-21 was to purge
enemies of the regime, the internal staff and members of the Communist Party
of Kampuchea, through arrest, detention, torture, and death of the
detainees. Duch ordered arrests and executions. He had the authority to make
arrests, which he carried out in person at times. He received prisoners from
all regime ministries and used great skill at arresting individuals. “Duch
was the real criminal,” Chea Leang said. “He was behind the crimes. He was
the secretary of S-21 and guided the whole function of the center. He was
the most senior among others ‘most responsible.’”

Chea Leang continued that Duch knew of the existence of an armed conflict
with Vietnam prior to 15 August 1977. Duch knew that Son Sen had to go to
the battlefield prior to that date. In fact, Son Sen briefed Duch about the
conflict. Also, through arrests of Vietnamese and their interrogation he
would have become aware of the conflict.

Duch was not genuine in his expression of remorse, she said. But he
cooperated with the Trial Chamber and made statements that he is responsible
for all crimes in both the legal and emotional context. If Duch would only
keep cooperating and expressing genuine remorse, the victims probably would
accept his apologies. But that had not happened.

Smith Rises Again

William Smith rose again to deliver the final component of the
co-prosecutors’ rebuttal. He returned to the vexing issue of the day. “The
defense seeks an acquittal. If Duch is not acquitted, then they want a
penalty ranging from 17 to 20 years. Bearing in mind the huge scale of
crimes, the defense strategy represents completely and utterly inadequate
responsibility for the crimes. It does not reflect what international law
requires for crimes of such large magnitude.”

Smith then sought to distinguish the trial of Dragan Obrenović before the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and the
Duch trial, in response to International defense counsel Roux’s efforts to
draw a useful comparison from it the day before. “I worked there [at the
ICTY],” Smith reminded everyone. “Obrenović is completely different from the
case against the accused. Obrenović was a military officer of good character
before the war. Duch had been at his business [of torture and executions]
for years. He said as early as 1971, ‘I cannot stand duplicity and I beat
them to death.’ In contrast Orbrenović acted over a three-day period in 1995
at Srebrenica. He essentially played a passive role in allowing his men to
be part of an operation of mass murder. But when the ICTY investigation
began, he cooperated fully, allowing investigators into his office. For
Duch, the crimes at S-21 last for 3.5 years with more than 12,000 deaths. He
cannot be compared at all to Orbrenović. Rather, this Trial Chamber should
give Duch triple the sentence Orbrenović received!”

As for the Albert Speer defense delivered by Roux on Thursday, Smith said
that Duch loyally implemented the Pol Pot regime’s policies. Speer was quite
different. He had a conscience and actually ordered people not to commit
these types of crimes. Speer was one of the few men to tell Hitler that his
regime was ending. He deliberately sabotaged the government at great
personal risk. Duch knew that 90 percent of his victims were innocent. Duch
admitted to his guilt but did not provide evidence that he avoided orders.
Was he a small cog? Did he have to commit all the crimes? Could he have
minimized the pain and suffering of his victims? Duch testified that he
trained interrogators and dared them to be cruel. The terror he inflicted at
S-21 multiplied throughout Cambodian society with the names he extracted in
the interrogations, which led to more arrests and more torture and more
executions.

Smith said Duch was asked, are you the man who implemented the trust of your
superiors? He said, “Yes.” Smith noted that the co-prosecutors gave Duch the
opportunity two days ago to really apologize. Apart from seeking acquittal,
he has had his international counsel say he was the small cog in the
machine. But it was Duch who proposed torture and proposed arrests to his
superiors. He chose not to take the opportunity to back off. But what really
undermines his case, Smith contended, was his close and adulatory
relationship with Son Sen. Duch told the court, “This is the question I have
been waiting for. I had the utmost respect and faithfulness in Son Sen.” Son
Sen brought him up through M-13 and S-21. And Duch stayed with him for 15
years after the collapse of the Pol Pot regime.

Smith uncharacterically became agitated. “What?! He’s got to be joking. If
not, that proves that this is just a complete lie. He comes to court but he
is not facing up to what he was! Maybe in a final statement, he will turn to
the civil parties and say, ‘I believed in the CPK; I believed it was a means
to an end.’ How can you be proud of a boss who told you to torture and kill
for years?!”

Smith continued, “This case is about 12,000 people brutally tortured and
murdered. It cannot go to a light sentence. You must give him a 40-year
sentence.” He noted the wishes of the civil parties for a life sentence. He
explained that the court must reduce the sentence due to Duch’s prior
unlawful detention in the military court. It must be a sentence the court
can be proud of. Smith concluded, “In respect for the victims, for the
Cambodian people, and for no peace without justice, remember the victims and
send a strong message to Cambodia.” Smith then sat down.

The Trial Chamber president, Nil Nonn, referenced Smith’s request for
clarification of the defense plea and whether defense counsel were acting on
the defendant’s instructions. He asked the accused whether he wishes to make
final remarks and if so, the court would reserve time for him. Since the
chamber was not yet clear about the inconsistent defense counsel statements,
the judges expect that the matter be clarified in the defense rebuttal.

Cambodian Defense Counsel Kar Savuth’s Rebuttal

Cambodian defense counsel Kar Savuth rose for his rebuttal argument. He said
he did not challenge, but then he challenged the extension of the statute of
limitations under the 1956 Penal Code for an additional 30 years. He
emphasized that the statute expired in 1989. “This is like a person dying
and then resurrecting a dead body—that is impossible.” He delivered a
somewhat convoluted explanation of his objection to the extension, drawing
upon various sources including the 1971 Paris Peace Accords.

Savuth returned to his earlier theme of comparative injustice, namely that
chairmen of the 195 other prison centers in Cambodia during the Pol Pot
regime have not been brought to justice. More people died in some of the
other facilities. “Why is S-21 the primary target of the prosecution?” he
asked. While Son Sen oversaw S-21, other members of the Standing Committee
supervised other prisons. “We reject that S-21 was unique,” he declared. He
said the aim should not be to find justice for the CPK cadre who were
“smashed” at S-21, but the prosecution should find justice for the innocent
victims at the other prisons.

Savuth said that the defense acknowledges that crimes were committed at
S-21. The accused has confirmed that, he said. But who is responsible for
those crimes? “The CPK is solely responsible for such crimes,” Savuth
declared. The CPK was behind all orders for execution. Duch did not order
the crimes, he said. He said Duch was a scapegoat. Duch had been imprisoned
for ten years and other prison chairmen had not been imprisoned at all. “So
let my client go home. Release him and let him go home!”

International Defense Counsel François Roux’s Rebuttal

International defense counsel Roux continued the rebuttal at this point. He
lit into Smith: “You challenged my words of yesterday.” Roux then sought to
downplay Smith’s point that the prosecution indeed had acknowledged Duch’s
own statements of responsibility and his cooperation with the court. Roux
essentially argued that the prosecution’s acknowledgement was not
sufficient. He also defended the brevity of his 16-page brief. “The defense
tried to convert into a legal framework what the defendant has said since
1999, that he acknowledges the crimes he committed. Duch said, ‘I
acknowledge my crimes. I apologize to the victims. I am also morally
responsible for all crimes in Cambodia by the CPK because I am a member of
the party.’”

Roux challenged Smith’s effort to distinguish the Ordemoviç case at the
ICTY. “The people massacred in three days were massacred due to Ordemoviç,
whereas all of them should have been protected by him.” Roux raised the
Albert Speer defense, and said that while he prevented Hitler in part from
pursuing a scorched earth policy, Speer had much higher responsibility in
Nazi Germany than did Duch in the Pol Pot regime. “Speer’s crimes were a
thousand times more serious,” Roux said. Despite the severity of those
crimes, the Nuremberg Tribunal took into account Speer’s admission of guilt.
How can the prosecution here say that Duch instituted a reign of terror in
Cambodia? Roux argued that although 12,380 persons died at S-21, and the
prosecution accuses Duch of those deaths, those deaths did not cause a
period of terror to operate throughout Cambodia.

Regarding Duch’s relationship with Son Sen, Roux said that to have faith in
him means Duch understood who Son Sen was. It is Son Sen who should have
been brought to this court, Roux claimed. [Of course, he knew Son Sen was
dead.] Son Sen was the CPK and Duch followed the orders of the CPK. Duch is
a tragedy, Roux said, “Yes, indeed, a tragedy.”

Then Roux launched a new argument. “If Duch had resigned at S-21, do you
believe S-21 would have gone on? Yes. It would have been a killing machine
in the hands of Son Sen. Duch got lost—he believed in the revolution and
that it was good for his people.”

Roux noted that the co-prosecutors acknowledged that there were mitigating
circumstances. Duch must benefit from mitigating circumstance, Roux claimed.
First, regarding duress and superior orders: Duch did not escape from the
system. Everyone received orders from their superiors and passed those
orders on to their subordinates. The 30 March 1976 decision defined the
whole policy of the elimination of the enemies of the revolution. The
Standing Committee made such decisions, not Duch. It was impossible to
escape. Second, the co-prosecutors do not challenge Duch’s cooperation.
Third, Duch has shown remorse and contrition several times, and he asks that
the door be kept open for more contrition. Fourth, one must consider his
personality. Fifth, there is the issue of what the psychiatrists determined
about him. Over the course of the year, they witnessed a change in his
psychological development. Was Duch dehumanized during the Pol Pot regime?
Before dehumanizing their victims, the executioners dehumanize themselves,
Roux noted. “No one is born an executioner, one becomes so.”

Roux noted New Zealand’s sentencing law, which requires taking into account
all restorative aspects of justice: apologies, contrition, and the character
of the accused. There is no justice, Roux said, if the only purpose of the
sentence is to punish. The sentence will never repair the suffering of the
victims, he continued. But do not follow an eye for an eye, a tooth for a
tooth. We pleaded that the Trial Chamber take into account Cambodia’s
forthcoming new penal code and the reparation that Duch is entitled to for
the violation of his rights—the unlawful imprisonment in the military court.
“There are many people more responsible than Duch who will never be
prosecuted. He’s already spent ten years in detention. You cannot draw a
parallel with other prison chiefs and senior leaders who have not been
prosecuted,” Roux said.

Roux emphasized that the 1994 amnesty law ended the civil war and was
designed to make peace with enemies. He asked the court to take that into
account and not turn Duch into a scapegoat. He reminded them that he had
declared “Duch” dead on Thursday in his closing argument. Duch is dead and
the court now faces again the former math teacher, Roux claimed.

Smith and Roux Lock Horns

Smith rose at the end of Roux’s rebuttal. “Maybe this was an oversight, but
the defense have evaded your question on the change of the defendant’s
plea,” Smith said. He continued: “Is the defendant seeking a mitigated
sentence or an acquittal? Why is the defense running these two defenses at
the same moment? What is the basis for an acquittal? There will be no relief
for the victims if the accused is generally accountable but not legally
accountable. Because of this evasion, the better course is to ask the
accused if he instructed counsel on two grounds that are not real
cooperation or remorse. If his request is for an acquittal, that undermines
his pleas of remorse and invites a longer sentence. If his counsel are not
following his instructions, the court is exposed to the possibility of an
appeal by Duch over the fact that counsel did not comply with his
instructions.”

Roux objected to Smith rising as there was no provision in the Internal
Rules for a rebuttal to the defense counsel’s rebuttal. Then Roux turned
particularly caustic and almost insulting. He said the co-prosecutor “must
not have been listening to us. The word ‘acquittal’ was not used this
morning. Both defense lawyers urged mitigation and that he be freed as soon
as possible. He should be freed after being imprisoned for ten years and
after having acknowledged the crimes.” However, the judges remained confused
and Roux would soon be contradicted by his co-counsel for the defense, Kar
Savuth.

The End Game with Duch

High drama continued in the courtroom. The judges consulted among
themselves. President Nil Nonn finally asked, “Does the defendant wish to
speak? There have been some doubts in comments by counsel for the accused.
The Chamber expected the defense to clarify its position. Our question was
not well answered yet. The Chamber and the public have observed good memory
of the accused in the proceedings. We wish to hear the personal position of
the accused.”

Duch rose to speak. He said the following: “I am most grateful for the
opportunity to make my last words. I have worked in a spirit of cooperation
with the court. Since my arrest on 8 May 1999, to the military court, I had
been determined to report to the court sincerely and honestly. I have
cooperated with all questions by the co-investigating judges and the
co-prosecutors. I fully responded to questions in these proceedings. The
proof is in the transcripts. In paragraph 86 of my submission, I take into
account the crimes at S-21 and won’t talk more about them. I request the
Chamber consider what I said. My 33-page document is just a fraction of the
information I have provided. I have fully cooperated with all levels of the
court.

“I have expressed my apologies and my guilty admission. This court has
jurisdiction from 17 April 1975 to January 1979. M-13 was also discussed and
I responded to questions about M-13. I also was asked about events after
1979. I have never forgotten about the one million souls that perished,
including those of my relatives. But all of the crimes were committed by the
CP. I, as a member of the party, acknowledge and apologize. Pol Pot relied
heavily on the party and I was a party member.

“I don’t challenge the number of 12,380 deaths at S-21. I am responsible for
crimes without any denial. I’m responsible for crimes as part of a criminal
party [CPK]. I acknowledge that these people died at S-21. My deputy, Hor,
was in charge of executions. I did not want him to bear responsibility. I
have learned from the psychiatrists that I need to be restored into the
ambit of humankind.”

Duch then went on to claim he was not part of the senior leadership of the
Khmer Rouge and pointed to only six individuals from the Standing Committee
as meeting that standard. He then said that no one could violate the party
line. Pol Pot was the secretary in charge of the party. The secretaries of
the zones had the authority to “smash.” If they violated the spirit of the
collective, Duch said, they also had to be “smashed.” The purpose of the
ECCC Law is to bring senior Khmer Rouge leaders to justice and that would
find justice for everyone in the country and achieve national
reconciliation.

But Duch continued: “I never challenged the crimes at S-21. I have served
for ten years, six months, and 18 days. I do not challenge my detention as
illegal. I leave to the court to determine illegality. I ask the Chamber to
release me.”

President Nil Nonn asked the accused to rise again and said to him, “The
Chamber has heard your final remarks. You asked to be released. The question
now is, what made you ask for a release. Are you seeking an acquittal of all
charges against you or a reduction of sentence for your cooperation and time
detained since 1999? We need to be of clear mind regarding our decision.

Duch responded that, “My ability to analyze is limited to what I can report.
I would like the Chamber to release me.”

President Nil Nonn responded, “This development is strange at the end of the
trial if compared to national practice. The defendant has pointed to his
Cambodian counsel to say a few words. Perhaps he could clarify the position
of the defense.”

Duch said his view was consistent with Kar Savuth’s so he may speak for him.

Kar Savuth rose and sought Duch’s release. He reiterated some of his prior
arguments about Duch not being a senior leader of the Khmer Rouge, that Son
Sen had the authority to “smash” at S-21 as a member of the Standing
Committee, that Duch was not among those most responsible for the crimes and
that the CPK was the culprit. For those reasons, that is why the defense
sought the defendant’s release.

Judge Silvia Cartwright intervened with this question: “Do I infer that the
defendant is seeking an acquittal?”

Savuth responded: “Release means acquittal.”

President Nil Nonn declared the trial at an end and summarized some of basic
information about the total of 77 days of trial proceedings. He thanked all
participants, including the civil parties and victims. He said that the
Trial Chamber would deliberate and prepare a final judgment. The date for
delivery of the judgment cannot be scheduled due to the size of the case
file and the requirement to work in three languages, he said. The judgment
date will be duly announced in advance.

Press Conference

At the press conference immediately following the day’s proceedings,
International Co-Prosecutor William Smith said that Duch had been ably
represented by counsel, that this had been a fair trial, that the civil
parties had been ably represented, and that the way the trial judges
presided over the proceedings pointed to a fair trial. He said the
co-prosecutors looked forward to the judgment. He said the co-prosecutors
were surprised this week at the defense strategy. The request for acquittal
reflected the accused’s view of what he wanted. The accused has shown some
remorse and cooperation but the remorse is now limited due to his acquittal
plea.

Cambodian Co-Prosecutor Chea Leang said they were taken by surprise. Duch
had asked for an acquittal and that contradicts what International defense
counsel Roux had long sought—namely acknowledgment of guilt and mitigating
circumstances, “but today we heard the opposite.” So the position of the
defense is rather mixed. The national defense counsel sought acquittal and
release. The international defense counsel had a different view. Duch
essentially wanted the charges dropped.

Smith explained that both defense counsel ended up seeking release of Duch.
Perhaps, pursuing Roux’s presumed logic, it was premised on ten years having
been served for the crimes committed at S-21 and that should be enough.
Despite the disagreements between the two defense lawyers, Smith believed
that the sharing of defense responsibilities can work for the best of the
court and develop skills for future cases. Smith also said he was satisfied
there could be no appeal by Duch. “It took a while to get the answer in the
courtroom. It fell to Duch to state his position. The national counsel
confirmed the acquittal plea. Despite the advice of defense counsel Roux,
Duch plead not guilty and yet he still wanted mitigation on his sentence.”

Smith further explained the rationale for the prosecution’s request for a
40-year sentence and maintained the same reasoning as he had stated in the
courtroom. He said the cooperation of Duch in trial 002 will be a factor to
consider. His partial cooperation so far had influenced the co-prosecutors’
recommendation of five years subtracted from a 45 year sentence (thus
reducing it to 40 years). But now, “we would have had some discussion in the
office on that issue if we had known there would be an acquittal plea.”

Civil Party Group 1 lawyer Karim A. A. Khan stated at the press conference
that it remained a historic day, the end of the first trial before the ECCC.
It was the first completed international or hybrid court trial with the
active participation of civil parties. All were taken aback, he said, and it
was contrary to expectations that the accused did not put forward a guilty
plea. “He is seeking an acquittal. This confusion needs to be
reconciled….Duch is criminally responsible for the crimes he committed at
S-21. He raised a jurisdictional defense at the last moment. Notwithstanding
his responsibility for the crimes, since the court’s personal jurisdiction
covers those most responsible, he does not regard himself in that category
[and he denies being a senior leader].” Khan confirmed that such a claim is
time barred under the Internal Rules and that there is abundant
jurisprudence in the international criminal and hybrid tribunals on “most
responsible” to reject Duch’s argument. Khan continued, “Duch refused to
disclose the full truth of his motivation at S-21. Rather than be a
reluctant party, he was an active participant; he fell prey to the whole
atmosphere of the Democratic Kampuchea regime. His refusal to say he was an
enthusiastic participant leaves us short-changed.”