“Duch Was a Willing Partner"

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

Today the co-prosecutors delivered their closing arguments in the trial of
Kaing Guek Eav (alias Duch) and will conclude their statements tomorrow. The
only drama in the courtroom was the fainting of one court official, which
caused a short delay in the proceedings, and an audio failure mid way
through the afternoon which caused an early adjournment. The court official
was back in her seat working a short time later. The Cambodian and
international co-prosecutors read from prepared statements which were
summaries of their 160-page written submission to the court. So it was a
monotone day of prepared statements mixing detailed expositions of the
crimes and law with accusatory insights into the character and motivations
of Duch as an alleged war criminal.

The courtroom was packed throughout the day, mostly with large groups of
secondary school children in their school uniforms, Buddhists and Cham
Muslims, and a sizable group of victims (including civil parties). I looked
across the sea of young faces and wondered what they would remember of this
day and how many could relate the horrors that had swept through their
families three decades ago. When the work of the Extraordinary Chambers in
the Courts of Cambodia is concluded, it may well have achieved the largest
participation of the victim population of any war crimes tribunal. The
credit for that in no small measure goes to the Documentation Center of
Cambodia under the leadership of Youk Chhang.


Cambodian Co-Prosecutor Chea Leang
Chea Leang, the Cambodian co-prosecutor, launched into several hours of
closing arguments by first acknowleding the statements of civil party
lawyers on November 23rd. "They reminded us," she said, "of the never-ending
impact of the accused's actions on the victims. It is like a knife that
continues to turn inside each one of them for the rest of their lives. They
have aching hearts that will never rest." Leang said the co-prosecutors have
not been moved by calls for revenge or to forgive and forget. Their task is
to prove their case beyond a reasonable doubt and ask that the law be
applied fairly based on international standards of justice.

The victims, Leang said, were arbitrarily deemed to be enemies of the Khmer
Rouge. They were threatened, intimidated, beaten, executed, forcibly
drowned, force fed their own excrement, and subjected to other unspeakable
cruelties. They met anonymous deaths in the darkness of the killing fields
at Choeung Ek—a humiliating death at the hands of Cambodians killing fellow
Cambodians. Leang noted that the victims of S-21 would fill the auditorium
of the courtroom 24 times over.

Leang called for nothing less than a lengthy sentence of imprisonment for
Duch despite his expressions of responsibility for the crimes, remorse, and
respect for the victims. Furthermore, there was nothing remotely democratic
about Democratic Kampuchea, she said, and Duch was a key part of that
regime. Under it, 1.7 million Cambodians were massacred. The regime enforced
a radical ideology that involved ruthless violence. The target of the
violence was any non-conformist or anyone who would not submit to the
authority of the state.

She described the term "smashed" to mean "executed and crushed to
bits--obliterated." It was meant systematically to dehumanize the victims.
While the Duch trial only focuses on one prison--S-21--it was no ordinary
jail. Tuol Sleng was the model political prison in the entire country.

The Communist Party of Kampuchea (CPK) trusted Duch to discover plots
against the revolution. Leang told the court he was totally indifferent to
the suffering of the victims. Duch was the perfect candidate to run S-21.
“He's always been treated fairly and with dignity by the court and he is
represented by experienced counsel,” said Leang.

There are so many crimes of such serious character consuming so many
victims—crimes that shock the conscience of humankind, that Leang found the
only answer in a lengthy prison sentence. It does not matter that others do
not admit guilt (which none of the charged individuals in case 2 have done).
She called for the ultimate sanction, presumably meaning a life sentence.


Jurisdiction
Leang recited the fundamental elements of personal jurisdiction of the ECCC
(in other words, “…senior leaders of Democratic Kampuchea and those who were
most responsible for the crimes and serious violations of Cambodian penal
law, international humanitarian law and custom, and international
conventions recognized by Cambodia…” Art. 1, ECCC Law) In identifying the
relevant individuals, Leang said the government itself was a sham source of
power. The real power lay with the CPK, or "the Party." The Party was headed
by the Central Committee and under that the Standing Committee really
determined regime policies. The guiding force of "Angka" fed a culture of
secrecy and evasion of accountability.

Since the ECCC Law does not provide statutory guidance on senior leaders,
the co-prosecutors looked to the jurisprudence of the International Criminal
Tribunal for the Former Yugoslavia. Leang explained that they needed to
examine the gravity of the crimes, their temporal scope, territorial scope,
and the manner in which the crimes were committed. She said they were not
limited only to policy leaders. A number of subordinates also fell into the
jurisdictional reach of the court. They found in Duch personal jurisdiction
both at the senior leader level (his personal oversight of Tuol Sleng) and
as a "most responsible" individual (he was permanent secretary of S-21 and
intervened daily with the Standing Committee, and thus was responsible for
S-21 crimes on multiple levels). As for "serious" crimes, the crimes at S-21
were among the worst of atrocities. More than 12,000 individuals were
executed there and that qualified on the scale of “serious.”

Leang raised the defense plea that Duch was being made a scapegoat. She
emphatically rejected the scapegoat defense. S-21 was at the apex of the
security offices of Democratic Kampuchea. Duch had unique access to and
relationship with the leaders of the regime. S-21 was unique as it received
prisoners from across the country. It also was unique because senior
officials in the CPK and the government, as well as purged chiefs of other
districts, arrived there for detainment and execution. The confessions at
S-21 were sent to leaders of the CPK, so they were instrumental in advising
senior leaders who next to arrest. No other prison chairman had more
influence over the CPK leadership than did Duch.


Criminal Intent
Leang opened this portion of her closing argument by examining the issue of
Duch’s criminal intent. She said he had not agreed that he committed crimes
willingly. Rather, he claims to have acted under orders and duress (with the
threat of death for non-compliance). His denial of intent bears upon the
facts surrounding the crimes, she said.

Leang developed a line of reasoning that rests on what existed in Cambodia
during the Pol Pot era: How could the facts of that reality be interpreted
in any way other than to point to Duch’s criminal intent to commit heinous
crimes? The overwhelming horror of the facts must co-exist with criminal
intent, she seemed to argue. She described Cambodia in stark terms:

The CPK constituted political persecution on a national scale. By 1976,
there was no private property and the cities had been abandoned. The CPK
began to target their own kind. The policy was to “smash” enemies inside and
outside the ranks of the CPK. There were purges, including among the Central
Committee. Thousands were arrested and executed.

On August 15, 1975, Son Sen convened a meeting, with Duch participating, at
which the creation of S-21 was approved. In October 1975, S-21 became
operational. About 1,500 prisoners were detained at any one time at S-21,
which was a systematic torture and execution center. It existed to extract
confessions prior to execution. Three groups of interrogators were formed to
accomplish the task: the “cool” group, the “hot” group, and the “chewing”
group. The co-prosecutors found that many of the surviving guards at S-21
were not keen to talk about their work there, perhaps out of fear of being
arrested. But they were tools of the senior cadre and were both shaped and
used by Duch and by the Central Committee. The objective of “smashing”
enemies was continually enforced at S-21, with the CPK propaganda radio
blaring all the time.

S-21 was a place from which no one escaped. During the trial the court heard
from three prisoners whose talents as artists spared them from execution. In
addition to the torments they described, there was the forcible extraction
of blood and live surgeries. Blood would often be extracted until the
prisoner gasped and died, completely drained of his or her own blood. Leang
argued that to Duch, the practice of bloodletting meant nothing. In red ink,
he would annotate next to the victim’s name, “smashed blood.”

Duch’s cruelty towards prisoners knew no limits, Leang contended. The
interrogators had free rein to use their imagination and to ensure no
premature death during torture sessions. High-ranking detainees were told
that if they did not confess, the locations of their families were known and
would be acted upon.

The arrest of an individual condemned him or her before arrival at S-21.
Since no wrongful arrests could be made, elimination followed. At S-21 the
cries of victims and stench of rotting corpses must have been ever present
from the earliest days. Execution was a certainty for everyone. Each must
have imagined death a 1,000 times over during their torture and detainment.
Two witnesses before the court survived the killing fields at Choeung Ek to
describe the fate of the victims. But no one can adequately explain the fear
and anguish of victims other than that they knew, as they kneeled, that they
would be executed. Every corpse was checked for signs of life. Throats were
slit and stomachs opened with a knife before burial. Duch was the only
prison official with authority to report all of this to senior leaders.


Crimes Against Humanity
Leang proceeded to explain, as a summary of the co-prosecutors’ written
submission, the crimes proven by these facts. The first category of crimes
she described were crimes against humanity. The co-prosecutors argue that
seven out of the nine crimes against humanity set forth in Article 5 of the
ECCC Law were committed at S-21. The threshold requirement is that the
commission of the crimes at S-21 had to be part of a widespread or
systematic attack against a civilian population. The crimes at S-21 indeed
constituted a part of the wider commission of crimes against humanity
throughout the country. Even if viewed in isolation, Leang said, the crimes
at S-21 were widespread. The victims arrived from all over Cambodia to face
torture and execution at the prison. The victims numbering more than 12,200
met the test for “widespread.”

What occurred at S-21 also must be described as “systematic” crimes,
organized and orchestrated by the Party and that instructors of the Party
implemented methodically and carefully. The tens or hundreds of thousands of
individual attacks at S-21 constituted an Article 5 attack. The targets of
the attack were predominantly civilians detained at S-21.

The definition for crimes against humanity in Article 5 of the ECCC Law has
an additional requirement: that it be done, among other categories, on
political, religious, or ethnic grounds. In fact, the attacks at S-21 were
driven by political ideology and political persecution resulted. The attacks
included ethnic discrimination against the Vietnamese prisoners. No
religion, including Islam, Christianity, or even Buddhism, was tolerated. A
perpetrator of crimes against humanity must have knowledge of the attack on
the civilian population. Duch knew the crimes committed at S-21 were part of
a widespread attack on civilians. He was in regular contact with the
hierarchy of the CPK. Those meetings informed him of conditions elsewhere in
Cambodia. By reading the extensive records of interrogations at S-21, Duch
became fully aware of the context of the attack on the civilian population.

Leang then examined seven separate offenses of crimes against humanity at
S-21: imprisonment, other inhumane acts, enslavement, rape, torture, murder,
extermination, and persecution on political, racial, and religious grounds.
She said that the figure of 12,273 prisoners at S-21 was compiled from
documents recording names, but many who arrived at S-21 and died thereafter
were never recorded, so the figure is likely considerably larger. There was
no legal codification of the basis for arrests by the regime, so there was
no legal system to oversee the operation. The plethora of barbaric acts at
S-21 easily triggered the category of “other inhumane acts.” Duch issued
direct orders to intimidate prisoners and accomplish these acts. The
conditions at S-21 constituted enslavement, with Duch intending to exercise
ownership and control over the detainees. He was criminally responsible for
superior responsibility over acts of rape in the camp. Torture was
indisputably part of S-21’ culture and was clearly systematic. It was the
principal tool for interrogations and confessions. Duch, Leang claimed,
personally mistreated prisoners. The killing of prisoners on such a vast
scale constituted the crime against humanity of murder. Everyone detained
had to be executed. The court had heard much testimony to this effect. The
death occurred on a massive scale and thus triggered the crime against
humanity of extermination. Discrimination occurred on political, religious,
and ethnic grounds.


War Crimes
Leang next turned her attention to charges of war crimes against Duch. Why
is not charging Duch with crimes against humanity enough? Leang answered
that question by stating that the rule of law requires that the
co-prosecutors enforce the law, and that includes the Geneva Conventions of
1949 pursuant to Article 6 of the ECCC Law. It is important, she said, to
see that grave breaches of the Geneva Conventions are punished, because that
would have a deterrent effect on future armed conflicts. The absence of war
crimes charges would not tell the whole story about Duch, particularly in
connection with the innocent Vietnamese who arrived at S-21.

Leang argued that five of the eight grave breaches described in Article 6 of
the ECCC Law occurred at S-21: unlawful confinement, depriving a prisoner of
war or civilian the rights of fair and regular trial, wilfully causing great
suffering, torture or inhumane treatment, and wilful killing. She said it
was beyond doubt that an international armed conflict began in April 1975
and lasted until January 1979. Duch was fully aware of the circumstances of
the international armed conflict at least as early as when the first
Vietnamese soldier arrived at S-21. In fact, Duch documented the arrival of
the Vietnamese soldiers, who were supposed to be protected by the Geneva
Conventions, in his own handwriting. They were entitled to prisoner of war
status under the Third Geneva Convention. Duch was aware of the protected
status of Vietnamese soldiers captured on the battlefield and Vietnamese
civilians captured on Vietnamese territory during the war.

Leang stressed that Vietnamese suffered no less than Cambodians at S-21 and
that Duch’s criminal intent towards the Vietnamese was no different than
towards the Vietnamese prisoners. Leang described the elements of torture as
a war crime to be identical to those of torture as a crime against humanity.
While she admitted the prosecution had no specific evidence of torture of
Vietnamese detainees, she believed such torture could be reasonably inferred
for the common use of torture at S-21.

Leang concluded by describing the applicability of Article 3new of the ECCC
Law, which brings certain crimes under the 1956 Penal Code of Cambodia
within the jurisdiction of the court. She said these were no less worthy of
enforcement by the court. “This is a court for the Cambodian people and it
is important to see national laws being enforced and used to protect them.”
The Penal Code, in her view, clearly defined Duch’s actions as criminal,
particularly murder and torture. Leang described the barbarity that existed
in the prison as being projected by the crime of torture.


International Co-Prosecutor William Smith
International Co-Prosecutor William Smith rose to direct his closing
arguments directly at Duch’s culpability for the crimes charged. He began
with a series of rhetorical questions about justice, among them: What is
justice for the 12,200 people killed so cruelly at S-21? What is justice for
the families and friends of the victims? The judgment of the court will not
bring the victims back to life. The victims will not see their children
play; perished adolescents will not fall into love; the slaughtered parents
will not look proudly at what they left behind. The prosecution’s job is to
achieve a sense of justice. Justice will be done by applying the ECCC Law,
by conducting a fair trial, and by proving facts beyond a reasonable doubt.
The sentence must be in accordance with international standards of fairness.
The court’s mission is retribution and deterrence. The people of Cambodia
are worth protecting and their lives are worth respecting. “S-21 should
never have happened and it should never happen again,” Smith pronounced.

What, then, is justice? Smith said it can be discovered by factoring in the
gravity of the crimes, the impact of the crimes on victims, and Duch’s role
in the commission of the crimes. Duch claimed during the trial that the
crimes at S-21 occurred against his will, under threat of death, and with no
chance of escape. He paints himself as a victim of the system. Smith
described Duch as neither a prisoner, nor a hostage, nor a victim. Rather,
he was an idealist, a CPK revolutionary, and a crusader prepared to
sacrifice everything for the cause. This, Smith claimed, is the significant
difference between the prosecution and the defense in this case.

Smith claimed it was no coincidence that Duch led a comfortable family life
during the Khmer Rouge years. He attained a senior position. He maneuvered
to the chairmanship of S-21 with hard work and attention to detail. He
wanted to eliminate enemies of the Party. He developed one-on-one
relationships with senior leaders of the CPK. He continued to work with them
for 15 years after Democratic Kampuchea collapsed. Duch was one of only two
officials invited to meet with Son Sen on August 15, 1975, to create S-21.
The number 21 was picked by Duch for personal reasons. He hand-picked his
most trusted people as interrogators and torturers. He wanted to supervise
at S-21 but not do the dirty work himself. He taught interrogation
techniques, vigorously pursued his enemies, and ordered torture of
detainees.

Duch, Smith claimed, fed the regime’s paranoia with his interrogation
reports. His close relationships with senior leaders suited Duch well; he
constantly needed to be mentioned by them, to please them, and be praised
for his work. Duch spoke fondly of Son Sen during the trial. He described
him as being his biggest influence. When Nuon Chea replaced Son Sen in 1977,
Duch retained his position at S-21 and reported to Nuon Chea.

The extent of Duch’s authority at S-21 was total. He was meticulous,
logical, and bordered on the obsessive. Duch has a selective and brilliant
memory. In his world at S-21, rules must always be obeyed and order
maintained at all times. His staff numbered 2,000 and he carefully selected
and trained them. He ruthlessly enforced the rules and instilled constant
fear in his staff. 155 executed detainees were former S-21 staff and Duch
initiated or approved their executions. He chose not to use less extreme
forms of punishment. For Duch, the principal role in life was to ensure that
the political ideology of the CPK was strictly enforced. As a trained
teacher, skilled interrogator, and firm believer in the cause, he was
perfectly suited to the role he assumed at S-21.

Smith described Duch’s role in training sessions at S-21 and stressed Duch’s
understanding that dehumanization was essential in the training. Duch was an
excellent manager of the torture center at S-21. He took a hands-on role
regarding every aspect of the work. Indeed, he could not have made it work
any more effectively. Whenever a decision needed to be made at S-21, Duch
was the one to make it.

Smith continued to explain Duch’s involvement in the core activities of
S-21. He was an active investigator. He took a pro-active role in arrests of
individuals who were brought to S-21. He personally initiated hundreds if
not thousands of arrests. He developed the “strings of traitors” theory that
compelled interrogations under torture followed by new waves of arrests. The
arrests usually were made under subterfuge to lure the individuals to S-21.
Duch actively participated in a massive purge of the CPK. Only he confirmed
when an interrogation was complete. He particularly enjoyed interrogating
high-level prisoners.

But, Smith said, Duch could not succumb to one of the most human of
impulses—to alleviate the pain of others. His attitude was so hardened and
absolute that there was no room for friends and close associates. Two
friends of his were horribly tortured at S-21. One, a woman, was raped with
a stick up her vagina. The second was forced to eat his own excrement. Duch’s
denials, Smith argued, lacked any credibility given his own annotations
regarding these two individuals, and there were hundreds of other annotated
interrogations. He demonstrated a complete lack of mercy for the prisoners
of S-21.

Smith described how Duch personally participated in torture at M-13 prior to
his move to S-21. Indeed, over a period of 7.5 years, Duch beat and tortured
prisoners. Why would he commit such crimes over such a long period of time
if he was not ordered to do so? Because, Smith answered, Duch had an ardent
belief in doing it. “The infliction of pain was not something he hated, but
something he found necessary and perversely gratifying,” Smith said.

In Duch’s reports to his superiors, the attention to detail was
“astonishing,” according to Smith. Ninety percent of the prisoners at S-21
presented no danger to the CPK. For the vast majority of prisoners, Smith
applied his own techniques of torture. He synthesized the interrogations
reports for the benefit of his superiors. He has an almost photographic
memory for details.

In annotations, Duch simply wrote, “Kill them all.” “Interrogate four, kill
the rest.” “Smash.” His personal participation in most interrogations and
torture would not have been the best use of his time. Whether orders of
senior leaders were required or not, Duch’s orders to kill went ahead. All
executions required his approval at S-21. The senior leaders trust Duch to
kill everyone at the right time. He was the willing participant in the
plans. So did he hate doing it all and act only in fear? Smith questioned
the plausibility of how Duch could take such an innovative and activist role
in running Tuol Sleng and the treatment of its prisoners and simply do it
all out of fear.

Duch was a strong believer in Communist ideals. That belief system gave him
the resolve to develop and prove himself in the revolution. Though he claims
being trapped after 1971, all of the evidence disproves his claim. While
defense counsel claimed that no one dreams of becoming a mass murderer, Duch
prepared to do anything to further the cause of the CPK. He was a leading
crusader of the Party.

Duch expressed such admiration for Son Sen that Smith wondered what that
really meant. Duch claimed that Son Sen threatened Duch with his life if he
did not do his duty. But then he holds Son Sen in the highest regard. How,
Smith wondered, did Duch have such faith in a man who forced him to bring
such pain and agony into the lives of so many? The answer can be found,
Smith said, in the fact that there actually were no threats by Son Sen; the
two men were soldiers in the same crusade.

Smith remarked that the prolonged length of the trial allowed Duch to talk
freely and the more he did so, the more the truth slipped out into the
courtroom. “The more he speaks, the more he reveals the truth.” Duch had a
“good feeling” about meeting Pol Pot in 1978, even though Pol Pot was the
mastermind of the atrocities. In fact, Duch was proud to represent S-21 as
the chief ideologue. How could someone be so proud of his superiors who
wanted him to commit such crimes? How could someone be so proud to
indoctrinate his staff to torture and kill? It was because Duch believed in
the Party and he was so content in his work that the Party believed in him.

Smith then ventured into Duch’s personal life to seek out more explanations.
Duch married at the end of 1975, after he already had taken part in his
first torture and killing exercises at S-21’s initial location in Phnom
Penh. That fact did not prevent him from starting a family. He fathered two
children while he was arresting and killing children at S-21. “What a horrid
disconnect to the humanity around him,” Smith lamented. “While feeding his
own children, Duch was starving and killing other children.” Smith believed
the explanation lies in the consequence of a need for something to believe
in. Duch saw himself as protector of Party central. He could not be a
revolutionary and have any feelings. Smith placed significant weight on
expert David Chandler’s trial testimony. According to Chandler, Duch firmly
believed in interrogations. It was part of the Party line Duch had no
trouble accepting.

If Duch now admits that he implemented CPK policy and believed in doing so,
rather than claiming he hated his work, lived in fear, and had no chance of
escape, such an admission will come very late. The victims will have lived
with his lies for years.

Smith summed up his view of Duch as a perpetrator of crimes against humanity
and war crimes in Pol Pot’s Cambodia: “Duch was a willing partner, not
because he was ordered to commit the crimes, but because he believed in
their legitimacy. He was extremely efficient in carrying out the crimes at
S-21. He was no prisoner of the regime. Duch was nothing less than a willing
participant in the crimes.”

Throughout Smith’s closing argument, Duch gazed to his right, away from
Smith. His eyes wandered up to the ceiling, to his defense counsel, and to
his console. But he refused to make eye contact with Smith. At times Duch
appeared gaunt, sad, and lonely.

Due to audio problems mid-afternoon, Smith was unable to finish his closing
arguments. He will resume on Wednesday, November 26, and then be followed by
the defense.