“You Cannot Smash Human Beings”

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

A week of closing arguments in the trial of Kaing Guek Eav (alias Duch)
commenced today with lengthy statements from the Cambodian and international
lawyers representing the four groups of civil parties, who total about 90
individual victims. The public gallery in the courtroom was packed with a
large audience of Cambodian citizens, including some of the civil party
victims, and a small group of foreigners. Civil society representatives and
the international press were present in full force. U.S. Ambassador Carol
Rodley and her Deputy Chief of Mission, Ted Allegra, attended the initial
hour of the arguments. The final stages of this historic trial thus began
with an impressive display of domestic and global interest.

Duch arrived wearing a yellow long sleeve turtle neck shirt and white
slacks. In the afternoon session he wore a white shirt. Duch was seated in
the middle of the courtroom facing the judges, with his defense counsel on
his right and the co-prosecutors and civil party lawyers on his left. He
maintained his composure throughout the day and spent most of his time
scribbling notes, watching the video screen in front of him, and
occasionally turning to his left to face his accusers. But when Philippe
Canonne, the French avocat representing Group 3 civil parties, and his
co-counsel Martine Jacquin of France delivered perhaps the most pointed and
eloquent statements of the day, Duch locked eyes with both for the duration
of their arguments, leaving me to wonder whether I was witnessing remorse or
defiance as each minute ticked by.

On two occasions during the recesses, Duch wandered over to the glass
partition and placed a piece of paper with his writing on it against the
glass. Several Cambodians whom he may have known (that was not clear) waited
for him and then smiled when they read his note. He withdrew the paper from
the glass, smiled, turned, and then laughed. One foreigner placed a message
on the glass for him to read. They smiled at each other, Duch saluted him,
and then returned to his seat. Stranger things have happened in courtrooms,
but this ranked among the most disturbing, particularly given the emotional
and condemnatory context of the civil party arguments today.

The civil party arguments varied significantly in their substance and
delivery. Rule 23 of the Internal Rules stipulates that the civil party
participates for the purpose of supporting the prosecution and to allow
victims to seek collective and moral reparations. That may not have always
been the case today. President Nil Nonn opened the afternoon session, which
followed the Group I and Group II arguments, by reminding the civil party
lawyers that they must confine their statements to the Rule 23 parameters.
He claimed that the morning session had strayed far afield. Most of the
afternoon arguments appeared to comply with his instructions. With the time
afforded the civil party lawyers to prepare for today’s focus on their
clients’ interests and needs for realistic remedies, I found it surprising
that some of the lawyers had not organized and delivered their statements
more effectively.

Group 1
The experienced English prosecutor, Karim A.A. Khan, delivered the opening
statement for the 37 Group 1 civil parties. Khan has not been present for
most of the Duch trial and recognized the work of his co-counsel, including
Alain Werner of Switzerland (absent today), Brianne McGonigle of the United
States, and Ty Srinna, the Cambodian lawyer who followed Khan at the
desk-top podium. Khan spoke very deferentially to the judges and delivered
an eloquent statement. He acknowledged that there were a lot of firsts in
the courtroom, including the first internationalized trial where civil
parties have had an active role in the trial proceedings. He explained that
whatever flaws or defects arose from civil party representation in the
trial, their work had been done in good faith and with a sincere attempt to
make the system work, as envisaged by the Cambodians and by the United
Nations.

Khan stressed the need to distinguish between rhetoric and reality. He noted
the allegation that the civil parties wanted vengeance done, or blood,
during the trial. The defense had emphasized this by saying “we are in a
court of law, not in a market square where we are stoning the accused.” But
Khan said that all civil parties had not succumbed to the basic instincts of
seeking revenge. Instead, they honored the procedures of the court so that
they could achieve closure and get to the truth of what really happened at
Tuol Sleng prison.

Then there was the defense counsel’s suggestion, Khan said, that “we are no
more than the prosecution.” He stressed that Rule 23 limited the scope of
civil party participation. “We have not aped the prosecutor uncritically,”
he exclaimed. Indeed, he had made his reservations on the prosecutor’s joint
criminal enterprise theory in the case well known. Group 1 had not filed any
document to support that theory.

Khan claimed that the trial was not simply about the guilt or innocence of
Duch. One of the advantages behind civil party participation (aside from a
remedy of reparations) is that it allows victims to come before the judges
to give them an insight into the impact of the crimes on their lives. That
is a unique perspective that only the victims can provide.

The defense counsel’s complaint that the civil parties created an inequality
of arms in the courtroom invited a strong rebuttal from Khan. He denied that
Duch faced five prosecutors. The civil parties are not prosecutors, he said.
They had received no financial assistance from the court. This was the case
despite the basic rule in international human rights law that all rights
should be rendered practical and effective and not illusory. Khan said the
civil parties lacked the resources of the prosecutor and of the defense,
implying that the inequality is one that short-changes the civil parties
rather than creating some juggernaut aimed at the defense.

Khan concluded his initial statement by reminding the judges that Duch’s
acceptance of certain allegations nonetheless requires that those
allegations be proven before them. He said the judges must objectively
review the evidence whether or not what has been conceded by Duch is the
truth. When all the evidence is reviewed, he said, it reveals only one
conclusion: in large, important particulars, Duch has sought to evade and
minimize his role.

The Cambodian counsel to Group 1, Ms. Ty Srinna, then rose. Three
orange-robed Buddhist monks entered the public gallery as she began, framing
her remarks with appropriate solemnity. Srinna described the role of the
civil parties to unearth the truth of the crimes. They would endure great
mental suffering for the rest of their lives. Without their participation,
she said, the trial chamber would have difficulty measuring the magnitude of
the crimes and the suffering at S-21. Their object is to seek justice for
themselves and for their loved ones. The court’s mandate is to help the
civil parties relieve their grievances and suffering.

Since many of the original victims of S-21 were not told of their offenses
when arrested, the trial represented the chance to find out the truth and
ensure that justice will be done. Why were they arrested? The trial has much
to do with national reconciliation also.

Srinna then proceeded to describe a number of the civil parties in Group 1
and the victims of Tuol Sleng whom they represent. Many of her accounts had
been disclosed in earlier trial testimony. But Srinna plodded on so long
that she consumed a large chunk of Group 1’s allotted time and was compelled
to rush through the names without further descriptive accounts. Her
occasional asides to Khan revealed that they had not prepared their closing
arguments with attention to the time scheduled for Group 1. An air of
disorganization began to take over. Srinna closed quickly with the important
clarification that many documents identifying the relationships between the
civil parties and the original victims were destroyed during the Khmer Rouge
regime and in the intervening years. That explained, she said, some of the
difficulties in responding to defense counsel’s challenges to the
authenticity of the civil parties.

Khan rose again for Group 1 with a statement that consumed almost 20
minutes. It was this statement that might have been on President Nil Nonn’s
mind when he later cautioned the civil parties’ counsel to remain within the
parameters of Rule 23. For Khan aimed his considerable skills, as if he were
the prosecutor, directly at Duch. While support for the prosecutor is part
of the Rule 23 mandate, the judges appear reluctant to view the civil party
lawyers as wading too deeply into the issue of the defendant’s culpability.

Khan took issue with Duch’s protestations that he had no autonomy at S-21,
that he was just a tool. It was a camp dedicated to death and Duch led it.
Duch did not use his autonomy to alleviate any suffering. “This is no
Schindler in front of you,” Khan exclaimed. Duch was dedicated to his job.
But what he accomplished was not confined to S-21, Khan said. The campaign
of terror and torture that Duch ran in S-21 had the effect of increasingly
the paranoia elsewhere in the party. It created a vicious cycle in which
more and more arrests occurred, and more individuals were tortured into
making false confessions implicating others that fed the cycle once again.
Duch did all this because he was ideologically of the same mind as the
leadership. It was not only because he wanted to belong to a powerful group,
but also because it made life comfortable for him.

The evidence spoke for itself, Khan said. When he had the option during the
chaos of the Vietnamese invasion to let people go, Duch instead smashed
them. He had demonstrated his resolve at an early age in high school, and he
did his job at S-21 by his own volition. He had sufficient confidence to
report to his superiors, who rubber-stamped what he proposed. While the
defense seeks to minimize the role of Duch, he failed repeatedly to seize
options that would have minimized his role. There were no documents
dictating to Duch the forms of torture but he designed a cruel and callous
system at M-13 and then used it at S-21. Duch claimed he put people into
pits at M-13 to protect them from U.S. air strikes when in reality such
aerial bombardments had ended. The pattern emerges, Khan said, where Duch
shifts and minimizes his role in the most brazen fashion. He failed to
discipline guards who ordered prisoners to eat their own excrement. It was
patent nonsense, Khan claimed, that Duch told interrogators to have
detainees draw a picture of a dog and pay homage to it for the purpose of
sparing the victim a worse fate.

Khan made the further point that although Duch showed remorse in small
areas, when one compares what he had conceded in the courtroom with the
truth and reconciliation model, amnesties under such mechanisms are awarded
only where witnesses give the full truth and demonstrate remorse. Khan
pleaded with the judges to be “alive” to the fact that Duch fell far short
of that standard. Duch’s strategy, Khan said, is to bluff the court. He
closed by asking the judges to consider the evidence most carefully, noting
that the truth does not require a penny in reparations. But truth is of
enormous value to the civil parties. He asked the judges to find Duch guilty
of the charges.

Group 2
Following a brief adjournment, Group 2 counsel Silke Studzinsky from Germany
described herself as someone who lives with Germany’s own past. Despite
Nuremberg, the atrocities had continued since World War II. She believed the
Duch trial would close one of the impunity gaps in recent history, namely
arising from the Pol Pot era. She and her team represent 17 civil parties in
Group 2. The civil parties have to deal with the meaning of what happened
every day. Why were they selected to be imprisoned and tortured when they
were not guilty of anything? How were they interrogated and by whom? How and
why were they killed? The trial cannot answer all of those questions, but
the civil parties, who suffer permanent restlessness their entire lives,
demand disclosure of the entire truth. It is the only way to re-establish
their dignity, she said. Studzinsky recounted the stories of nine of the
civil parties she represents that were not related in the trial.

Studzinsky then launched into scathing criticism of the judges and how they
had allegedly mishandled the civil parties. She accused the judges of not
being sympathetic to the suffering of the civil parties. She said that
“thank you” are only two words, but they mean a lot and the judges never
used them with the civil parties. There was insufficient attention to how
traumatized the civil parties are, how they could not sleep the night before
their testimony, they were so distraught. None of the experts would have
been treated so insensitively, Studzinsky said. Civil parties were told to
control their emotions, so they sought to suppress their tears and emotions.
But the painful and traumatic expressions of civil parties reveal the crimes
of Duch and the judges should see that. When one victim was told to show his
scars publicly in the courtroom, his lawyer intervened and fortunately
reversed the judge’s request. Studzinsky claimed that the civil party
lawyers were often interrupted by the president of the court and thus gave
the impression judges were not interested in the civil parties.

Studzinsky criticized Cambodian defense counsel Kar Savuth for his alleged
insults of a sexual character to the international counsel for the civil
parties. Studzinsky asked why the civil parties could not be treated with
equal respect. “Is the suffering too hard to bear,” she wondered? The
president of the court should have protected the interests of the civil
parties, she said. Despite these shortcomings, the civil parties appreciated
the opportunity to tell their stories before the court.

Following her accounts of the grievances of several civil parties,
Studzinsky concluded with the story of one civil party rape victim. She had
remained silent for so many years because to disclose being a victim of rape
in Cambodia invites being considered “fair game” for everyone. But when she
saw Duch in the courtroom, she could no longer be silent. There would be no
justice for the victim of rape if her claim is denied.

Cambodian counsel Kong Pisey focused on the crime of rape and criticized
Duch for hiding behind his supposed ignorance of the penal code on the
crime. It was a slap in the face of the victim to do so. Duch, Pisey
claimed, attempts to cleverly avoid responsibility when it suits him. Many
women, he said, felt prey to sexual assaults under his command. Pisey gave
some examples, stressing that male guards oversaw the women detainees. Since
the women already were assigned to death, they became easy prey for sexual
assaults. But Duch failed to prevent abuses or to punish the perpetrators of
sexual assault. He also allowed guards to shame male detainees by taunting
them when they had to completely strip during the water hose-downs. It was
sexual harassment that constituted yet another inhumane act against the
detainees.

Pisey stressed that Duch is not a scapegoat. He was a willing and
enthusiastic participant with broad discretion regarding the prison
conditions. Pisey claimed that Duch was not only proud of his job, he
enjoyed the power as a power-hungry man. Duch’s aim was to keep power. He
later converted to Christianity in order to be on the right side of a
powerful religion rather than remain a Buddhist and be condemned to the 18th
level of Hell with no prospect of return. In the courtroom, Pisey claimed
that Duch was neither sincere nor truthful and his admissions were
half-hearted. There were too many questions he did not respond to or
circumvented. He failed, Pisey said, in his promise to the civil parties to
contribute to the truth and answer all their questions. Duch’s repeated
remorse and apologies are contradicted by his defense. He cries on cue
crocodile tears at 4 p.m. His is an orchestrated remorse.

Pisey articulated some interesting ideas for reparations. Duch could write
an autobiography and use the royalties to support the civil parties. He
could work while in prison and use those earnings for such support. Pisey
also proposed that Duch write two letters to the government. The first
letter should be his apology to the government, while the second should
request that one-third of the entrance fees at S-21 be used for reparations.
Duch’s wish to return to Cambodian society should be rejected, Pisey
concluded.

With the close of Group 2’s arguments, the court adjourned for lunch.

Group 3
Philippe Canonne delivered the first closing argument for the 28 Group 3
civil parties. He described what confronted the civil party lawyers. They
had worked tirelessly on the monumental task to bring together the victims.
The civil party in an international criminal trial is a major innovation.
The lawyers sought to assist the court to ensure the fairness of the trial.

The first reaction of the civil parties is often instinctive: Duch must
suffer the same treatment we did. Canonne advised that the counsel give
voice to the first reaction but they must transcend it. Then justice would
be rendered and not savagery. Canonne quoted a string of statements by Duch
during the trial, all of which directly implicated him in the commission of
the crimes charged in the indictment. In light of those statements, Canonne
wondered whether Duch’s contrition in the courtroom was sincere. Although
weeping is the beginning of contrition, Duch sought to be released. “So look
at the victims! Look at them, Duch, whom you sought to punish!” Canonne
continued, “You can smash insects and animals. You cannot smash human
beings, because one day they will rise again because they or their
successors will demand a reckoning….Their gaze beyond death is there to
judge you. Perhaps your victims will forgive you after this trial. Imagine
how much these people are searching, trying to understand why a man can set
up such barbarity. How can an ordinary person be so respectable and yet so
terrifying?”

Canonne reminded Duch that the civil parties are simple, modest, poor, and
either barely educated or high educated, and they are all fighting the same,
universal fight to find in the law their continuation as human beings and
not sink to the level of animals. Their intent is not to destroy fellow
human beings in the name of ideology. To treat civil parties with scorn
would be a new form of de-humanization.

Interestingly, Canonne admitted that the civil parties were disorganized
during the trial. But they were inaugurating a new system with the Duch
trial. If the court reverts to silencing the civil parties during the trial,
they will become icons only—voiceless—and once again they will be buried. If
they are not to be victims of their stories, then we must understand them.
It is with the victims, Canonne predicted, where history will be
reconstructed. The most valuable reparation, he said, is the victims’
presence in the court and the acknowledgement of their rights.

Canonne said that the Extraordinary Chambers in the Courts of Cambodia
foreshadows a new blueprint for hybrid international courts with attention
to the victims. He closed by criticizing Duch’s use of the French poem, “The
Death of the Wolf,” because he only looks to the most morbid element in the
poem. He gives no chance to humankind. Because of that he cannot fathom Duch’s
contrition. Is he simply trying to put all of us to sleep, Canonne wondered?
Where is there any romanticism in the deaths of 16,000 or more at Tuol
Sleng? “We consider you have become a wolf for mankind,” Canonne said to
Duch as he finished his statement.

Martine Jacquin followed Canonne with a second eloquent statement. She
described how it took the victims decades to speak out. She said, “This
court is giving voice to memory.” It enabled sons and daughters of the dead
to be allowed to be heard. She then showed photographs of a number of the
original victims and their civil party representatives. Then she said that
the perpetrators of such crimes do not commit them out of mental illness.
Rather, they take pleasure in submitting to popular madness. That is the
most frightening reality. The civil parties must give testimony so that all
of humanity can take up the mission of justice. In Jacquin’s view, the civil
party will only forgive somebody who proves to be aware of the faults of the
past and will endeavor to excise those faults from the consciousness of
others. Nothing, she said, can ever justify one human being dominating
another.

Cambodian counsel Moch Sovannary expressed her gratitude to the Cambodian
Government and the United Nations for the creation of the court. She focused
on reparations and stressed the need for effective medical care for the
surviving victims. The civil parties need justice and justice has to be seen
to be done—reparations would accomplish that. Sovannary proposed several
ways to implement reparations: 1) create a voluntary trust fund; 2) preserve
crime sites where the victims were executed and all related documents, so
that younger generations can stop the “horrible historical wheel;” 3)
preserve all portraits displayed at S-21; 4) erect a plaque naming all of
the victims and forced labor; 5) preserve the grave and pits at Cheong Me;
5) disclose the assets of Duch; and 6) determine precisely who will
implement the reparations.

Group 4
Cambodian counsel Hong Kim Suon led off the fourth segment of closing
arguments with his representation of civil parties in Group 4. He proceeded
to deliver an exhaustive rendition of data about each of the ten civil
parties in his group. One had to wonder whether he was making the best use
of his valuable time for the civil parties. While some may have appreciated
his recognition of their presence in the courtroom, nothing he said was of a
persuasive character to influence the thinking of the judges. Duch appeared
utterly disinterested. However, Hong Kim Suon’s concluding point that part
of the entrance fee at S-21 should be allocated to reparations was an
intriguing idea.

Pierre-Olivier Sur from France delivered the final closing argument of the
day. He noted the paradox that Duch came to the courtroom without a great
deal of difficulty while the victims had enormous troubles in securing
recognition as civil parties. The total number of 94 civil parties reduces
the situation to the level of theory, he said. Indeed, Sur argued, Duch is
in complicity with the court on the rights of the victims. While the victims
are steeped in Buddhism, with its Karma, reincarnation, and “letting go”
concept, their country, led by a former Khmer Rouge soldier, has enough
trouble looking to the future while keeping memories alive. It has only been
a few months since school textbooks were circulated with information about
S-21.

Sur claimed that Duch’s shedding of tears in public is at odds with Buddhist
culture, which embraces the survival of the fittest. By converting to
Christianity, Duch actually followed the logic of survival of the fittest.
Duch has sought to demonstrate total complicity and monopolize the trial in
the process. Among the victims there is a great sense of discomfort.

For the victims, Sur argued, forgiveness can only be accompanied by sincere
and exhaustive confessions. Duch has not done that. Instead, he has been
evasive. Duch’s further argument that he was just a follower in the Khmer
Rouge machinery is not plausible. He perfected his methods at M-13, so much
so that he was better than others and was promoted to chair S-21. He had the
power to save people, but chose to do so only for the photographer (who took
thousands of photos of Duch in his private life), dentist, and painter. If
he was able to spare life, he also was able to smash it—even his school
teacher. He was no pawn. He must be judged as a criminal against humanity.

Sur recounted some of the civil parties’ stories. He then proposed
entrusting to international justice the “noble mission of saying and judging
that there are crimes against humanity that will not remain unpunished.”