Closing Statements: Prosecutor v. Duch

Beth Van Schaack
Associate Professor of Law,
Santa Clara University School of Law, USA



I. Introduction



After 73 days of trial, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) recently heard the Closing Statements in the trial of Kaing Guek Eav (alias Duch), the former head of Tuol Sleng prison (a.k.a. S-21). The statements were a moving, intense, and at times baffling exercise. (A more detailed account of the proceedings is available at the Cambodia Tribunal Monitor.) The public gallery was full the entire week with members of the public, NGO representatives, VIPs representing various foreign embassies, monks in saffron robes and nuns in white robes, uniformed school children, the head of security of the Special Court for Lebanon with his own security detail, and journalists. Hundreds of people were bused in from all over the country by DC-Cam and other organizations. The Civil Parties and the Co-Prosecutors were each given 5 hours to present their Closing Statements. The defendant and his counsel had 7.5 hours. An additional 3 hours was reserved for rebuttal.


The Closing Statement is the final act of persuasion by the parties before the trier of fact. Counsel are expected to connect the facts with the law in such a way that leads the trier of fact (in this case the ECCC judges) to the verdict sought. The Closing is also a time to point out weaknesses in the opponent’s case, evidence, or logic; attack the credulity of the other party’s witnesses; and seek to resolve inconsistencies in the evidence. In addition to accurately portraying the direct and indirect proof, the closing must resonate with the triers of fact on the basis of their life experiences, common sense, and world view. Criminal defendants will also emphasize that the prosecutor bears the burden of proof and highlight instances in the record where the prosecutor failed to meet this burden. A parties’ closing strategy and tone will depend on the theory and nature of the case and the way in which the evidence unfolded during trial. Closing arguments rarely make or break a case. A fabulous closing argument cannot rescue a poorly litigated case; likewise, a terrible closing will not doom a well-litigated case. Observers of the Closing Statements in the Duch case were treated to a vast array of forensic styles and arguments—both legal and extra-legal.



II. Civil Parties



The 90 Civil Parties—some of whom rotated through the courtroom while the rest occupied the front rows of the public gallery—were invited to speak first. The victims were represented by four sets of counsel, each of which was allocated equal time. Karim Khan, co-counsel to 37 Civil Parties, began by emphasizing the novelty of the civil parties’ participatory rights and acknowledging some bumps along the road in coordinating Civil Party participation over the course of the trial. Anticipating an inequality of arms allegation, Khan noted that the Civil Parties were not to duplicate the work of the Co-Prosecutors, and he pointed out a number of instances in the course of the trial when the position of the Civil Parties differed from that of the Co-Prosecutors (for example, his team opposed the inclusion of joint criminal enterprise allegations). He accentuated the unique perspectives and contributions of the Civil Parties to the proceedings in terms of providing testimony about the impact of the defendant’s actions on direct and secondary victims and providing a fuller truth about the crimes committed. He closed by subtly critiquing the ECCC for not providing financial assistance to counsel for the Civil Parties.



His Cambodian co-counsel, Ty Srinna, unfortunately used up much of the remainder of this team’s time reviewing basic biographical data about each of her clients, much of it already in the record. After numerous notes and whispers, she finally concluded and ceded the podium to Khan again. After an abbreviated statement on reparations, Khan—sounding much like the former prosecutor that he is—argued that Duch’s claims of contrition were equivocal and not genuine. Khan challenged Duch’s protestations at trial that he was acting under duress and pursuant to superior orders. Instead, Khan argued that the evidence demonstrated that Duch was ideologically loyal to the Khmer Rouge enterprise, sought to ingratiate himself with his superiors, and used his substantial autonomy to increase, rather than alleviate, the suffering of the detainees—stating at one point that “this is no Schindler.” Potentially undermining the Co-Prosecutors’ theory in Case 002 involving the regime leaders, Khan emphasized the lack of documentation in the record from the Standing Committee concerning the types and severity of torture, implying that Duch took it upon himself to design and implement the horrific torture practices employed at Toul Sleng. In addition, Khan highlighted the larger impact of Duch’s work, arguing that Duch’s unearthing of supposed CIA and KGB spies actually fueled the Khmer Rouge paranoia and led to additional abuses and purges around the country as the Khmer Rouge sought to exterminate real or perceived enemies of the revolution. Khan also addressed Duch’s challenges at the end of trial to the standing of several of the Civil Parties, particularly those individuals who could not provide documentary “proof” of their kinship with someone who died at S-21. Although the Court certified the Civil Parties early on, the judges have taken Duch’s subsequent arguments under advisement.


The second group of 17 civil parties was co-represented by Silke Studzinsky of Germany. Studzinsky’s presentation focused on the goals of her clients—understanding why they or their loved ones were targeted for detention and abuse at Tuol Sleng. Studzinsky’s Cambodian counterpart, Kong Pisey, then presented evidence of sexual assault and abuse that occurred in Tuol Sleng but that was not formally part of the Closing Order (analogous to an indictment). Both counsel implicitly critiqued the Co-Prosecutors for not focusing on sexual violence crimes committed at Toul Sleng. Pisey also sought to deconstruct Duch’s complicated defense, arguing that Duch was a willing executioner who failed to contribute to the truth at trial as promised. At one point, Studzinsky launched into a bizarre and potentially alienating invective on how the victims felt unwelcome before the ECCC because the judges: were not receptive to the victims’ suffering, insensitively asked the victims to show their scars in open court, interrupted the civil parties lawyers, and did not thank the victims for their appearance before the Court. These lines of argument eventually provoked a response from the Trial Chamber, who reminded counsel that prior rulings of the Chamber are not the proper subject of a Closing Statement. This team spent more time on reparations, suggesting that the defendant could write his autobiography and provide the proceeds to the victims (sort of a reverse Son-of-Sam rule). In addition, it was suggested that some portion of the proceeds from the Tuol Sleng museum could go to the victims, and Duch ask the Cambodian government to issue a formal apology.



The third team of Civil Party representatives—including French advocates Philippe Cannone and Martine Jacquin—described their 28 clients as “helpers of justice” and eloquently invoked literature, poetry, and philosophy in their presentations to the relative exclusion of references to the law or evidence. In their remarks, the lawyers for the first time addressed Duch directly, rather than the judges. They called upon Duch to look at the victims and questioned how a man who appeared so respectable could actually be so terrifying. Cannone too acknowledged that the Civil Parties had been disorganized at trial, but considered it a mistake to criticize those for whom the trial was convened and warned of efforts to silence the victims and render them, once again, “voiceless icons.” They invoked the testimony and writing of Francois Bizot, a French ethnologist who testified at trial. Bizot was captured by the Khmer Rouge in 1971, prior to the 1975 coup d’état and thus outside the temporal jurisdiction of the Court, and was in the custody of Duch whom Bizot described as a “pure, fervent, idealist.” Bizot movingly recounted his experience in his compelling and at times horrific memoir, The Gate. Cannone also criticized Duch’s invocation of Alfred de Vigny’s poem, “Death of the Wolf” (“La Mort de Lupe”), and his apparent identification with the wolf, who suffers in stoic silence as it carries out its difficult work. Jacquin emphasized that the Khmer Rouge perpetrators were not mentally ill; rather, they took calculated pleasure in their sickening skills.

The lawyers argued that the ECCC had already provided the victims with most valuable reparations of all: the right to be present, the right to participate, and an opportunity for solidarity. Sympathy, empathy, and compassion alone are insufficient. They also suggested the creation of a voluntary trust fund for victims. The third members of their team, Cambodian lawyer Moch Sovannary, proposed more symbolic options, such as posting a list of names at S-21; ensuring the preservation of crime scenes, documents and graves; and establishing plaques and contemplative sites for the victims around the country. Sovannary also stressed the need to assist with the rehabilitation of victims through medical care. Like all the teams, many of the proposed reparations do not involve the accused or his resources, but rather require governmental involvement beyond what the ECCC can order.



The fourth team represented 10 victims. Hong Kim Suon spent considerable time recounting the details of his clients; it is unclear if these were efforts to honor the memory of each of the clients or just cautionary examples of poor time management. French co-counsel Pierre-Oliver Sur argued that his clients could only forgive if they were offered a sincere and complete confession, which Duch has failed to provide. Sur reminded the Court of the testimony of the psychological expert who examined Duch and found that he espoused to a pragmatic theory of survival of the fittest and manifested a shortage of empathy and an inability to understand the suffering experienced by others. Sur accused Duch of monopolizing the proceedings and indirectly accused the Court of being complicit with Duch in limiting the participation of the victims.



III. Co-Prosecutors



The Co-Prosecutors—acting prosecutor William Smith of the U.K. and Chea Leang of Cambodia—delivered the most traditional closing statement of the proceedings from prepared remarks that had clearly been translated in advance. They emphasized their role in the trial: to prove their allegations of fact with the evidence in the record in accordance with international standards of justice. They addressed arguments concerning the jurisdictional basis of the Chamber, they reviewed the charges against Duch, they canvassed the evidence that supports the counts against Duch, and they closed with a discussion of factors relevant to sentencing.



Leang emphasized that Duch could be considered both a senior leader, even though he was not a member of the Khmer Rouge Standing Committee and did not have a policy-making role, as well as someone “most responsible” for crimes within the ECCC’s jurisdiction. Leang acknowledged Duch’s claims that he is a scapegoat, facing prosecution when other security chiefs are not, and will not likely be, before the Court. In response, Leang emphasized that S-21 was in many ways at the apex of the Khmer Rouge extermination regime. Duch had unique access to, and influence over, senior leaders. His prison—which, Leang argued, should be considered a death chamber since there was no realistic chance of release—received high value prisoners from all over the country, including purged Khmer Rouge cadre. Duch’s exhaustive confession analysis laid the groundwork for additional purges and political persecution on a national scale. Leang’s impassioned account in the Khmer language of how prisoners arrived, were processed, were forced to give nonsensical confessions, and ultimately expired at S-21 drew tears from observers in the courtroom. She also described the more sadistic forms of torture and mistreatment (such as forcing inmates to eat excrement), as well as medical experiments and live surgeries committed on prisoners at S-21.



In a strongly doctrinal presentation, Leang then recounted the elements of the crimes charged—crimes against humanity (imprisonment, enslavement, torture, murder, extermination, persecution, and other inhumane acts), war crimes (confinement of civilians, due process violations, cruel treatment, torture, and willful killing), and national crimes under the 1956 Penal Code (torture and murder). Here, she reminded the Court that the Co-Prosecutors’ final submissions did in fact discuss crimes of sexual violence at Toul Sleng, contrary to claims by some of the Civil Parties. In setting out the elements of these international crimes, Leang relied heavily on the ICC Statute and its Elements of Crimes.



Addressing the question of why the Co-Prosecutors sought to charge Duch with war crimes in addition to crimes against humanity, Leang explained that the rule of law requires that the Co-Prosecutors apply the terms of the ECCC Statute and international law. In addition, she noted the importance of enforcing the grave breaches regime of the Geneva Conventions to ensure that those provisions are not mere words on paper, of accurately reflecting the criminality of the accused, and of telling a fuller story of the crimes committed at Toul Sleng, particularly against Vietnamese civilians and prisoners of war. (Leang was forced to admit, however, that there was no specific evidence that Vietnamese detainees were tortured; she argued that it could be inferred that they would have received equal—if not worse—treatment than Khmer detainees). Leang argued that the evidence in the record—including media reports, Khmer Rouge internal documents, and the expert testimony of Nayan Chanda (a former editor of the Far Eastern Economic Review and co-author of several books on Asia)—an international armed conflict commenced in Cambodia in April 1975, several months after the Khmer Rouge invaded Cambodia. By contrast, the defense later argued that no international armed conflict existed until December 1979 when the Vietnamese invaded Cambodia to oust the Khmer Rouge.



Acting Co-Prosecutor Smith took charge of elucidating Duch’s individual responsibility for the crimes committed at Tuol Sleng, Smith emphasized that Duch manifested all forms of responsibility—as a planner; a giver of orders; an instigator, aider, and abettor; and a direct perpetrator. Smith also argued that the doctrine of joint criminal enterprise (JCE) perfectly captures the essence of the accused’s liability. He noted that other tribunals have found JCE to be a form of commission and that the drafters of the ECCC Statute chose language identical to that of the other ad hoc tribunals in order to import the JCE doctrine as well. The Trial Chamber reserved ruling on the applicability of the JCE doctrine until the judgment.



Smith noted that Duch has admitted his “absolute authority” over S-21 and his general responsibility for the crimes committed and that he assented to a list of agreed facts concerning the structure of S-21 and its staff. Smith noted, however, that there were omissions and gaps in Duch’s testimony. Duch also advanced a superior orders defense and did not admit to undertaking his functions willingly, claiming instead to be a “hostage to the regime.” Although Duch tried to portray himself as ignorant of the details of the day-to-day operations in Toul Sleng, or as dependent on orders from his superiors, these claims are not borne out by the evidence. Smith reminded the Court that 155 individuals executed at Toul Sleng were former prison staff members—Duch’s direct subordinates. Smith described Duch and his superiors, one of whom will be on trial next year, as “brothers in arms.” He also demonstrated that Duch lived a comfortable family life during the Khmer Rouge era in a spacious villa while his prisoners were shackled to the floor.



Turning to the appropriate sentence, Smith emphasized that given the magnitude and gravity of Duch’s crimes, it was inconceivable that Duch would receive less than a lengthy imprisonment. Smith emphasized the impact of the crimes on the victims and their network of traumatized friends and relatives around the globe, the degree of direct participation of the accused, and his zealous participation in the crimes. As aggravating factors, Smith highlighted Duch’s abuse of power, the unusual cruelty of his actions, and the defenselessness of the victims. Smith then discounted mitigating factors he anticipated from the accused, such as that Duch was acting under duress or pursuant to superior orders. To this, Smith recounted the testimony of Bizot that Duch was not a man in terror, but a man of terror. Smith argued that Duch believed in the validity of any orders he received and implemented them willingly. Although he provided some cooperation after his arrest, Duch lived under an assumed name and remained with his former Khmer Rouge colleagues for years prior to his detention. He only started cooperating when Irish photographer Nic Dunlop discovered his whereabouts in 1999, as recounted in Dunlap’s book, The Lost Executioner. Duch also fought the admission of certain evidence (such as his involvement in crimes at the M-13 detention center prior to the Khmer Rouge assuming power) and resisted the introduction of reserve witness lists or even witness statements in lieu of live testimony. These acts, in Smith’s estimation, attested to Duch’s unwillingness to accept full responsibility for his actions or allow the truth to flow freely. Smith emphasized that opposing the introduction of inculpatory evidence is within Duch’s right as a defendant, but is inherently inconsistent with his claims of cooperation and admissions of responsibility.



Turning to concrete issues of sentencing, Smith noted that national reconciliation is a byproduct of a trial process, not its purpose and that a steeply reduced sentence would do little to contribute to such a goal. He conceded that Duch should receive credit for time already served in military custody prior to his transfer to the ECCC. Given that Duch was unlawfully detained for a period of time and subjected to other legal irregularities, Smith argued that a sentence of life imprisonment—which would otherwise have been appropriate—should be commuted to a determinate sentence of 45 years. Smith suggested that the Court should carve off another 5 years to reflect Duch’s limited cooperation with the tribunal and conditional expressions of remorse.



IV. The Defense



Duch next took the stand. His presentation was a didactic, rambling, and at times seemingly random exposition correcting or underscoring references in the trial record that are likely of interest to only a few beyond the Khmer Rouge historians in the audience. He peppered his testimony with Khmer aphorisms, such as “before harvesting the bamboo, you must remove the thorns,” that in context seemed chilling, especially when he later described purged Khmer Rouge cadre as “thorns in the eyes” of the Standing Committee. His testimony ranged from the founding of the Party of Democratic Kampuchea to the end of the Khmer Rouge era. He testified that “politics governed technique” and described torture as “inevitable.” He claimed that the purges terrified him and that he was afraid of being removed himself. At various points, his statement addressed issues (such as Khmer Rouge leadership structures throughout the different zones) that were so tedious and arcane that members of the audience began to fall asleep, although they were regularly awoken by Court staff under orders from the Chamber to prevent such naps. Addressing his role within this history, he described himself as having been “plunged” into a criminal act with little right to challenge decisions on who should be “smashed.”



Finally, Duch’s statement became more introspective. He stated clearly, “I still am solely and individually responsible for the deaths of 12,000 people and will be forever liable.” Still reading from his prepared remarks and not looking at the Civil Parties in the courtroom, he testified that he owed an accounting to the people of Cambodia and that he was deeply remorseful for having devoted his strength and skills to a criminal organization rather than to serving his people. He implied that early on, he had been given the choice of two paths and, in a split second decision, took a path that led him to a life of endless suffering. Once he became a cog in the machine, he could not withdraw. He humbly apologized to the dead and to the survivors. He asked the victims to leave a door open for him to make an apology and to recognize him as a member of humankind.



Duch’s apparently monotonous delivery of this statement, with nary a glance toward the Civil Parties, made it difficult to glean how sincere and heartfelt these expressions of contrition came across in his native language. Indeed, any emotional impact Duch might have made was no doubt mitigated when, at the close of his remarks, he proceeded to read 34 footnotes aloud, without no indication of their textual referent.



The Closing offered by Kar Savuth, Duch’s Cambodian Co-Defense Counsel, was so inconsistent that one could have been forgiven for thinking that he represented a different client. Rather than focus on Duch’s cooperation and entitlement to mitigation, Savuth attacked the very jurisdiction of the ECCC, arguing that Duch cannot be considered one “most responsible” for the Khmer Rouge’s crimes when there were 196 prisons around the country during the Khmer Rouge era and so many other prison heads are enjoying their golden years. He attacked the Co-Prosecutors’ cumulative charging, he presented evidence that argued against the existence of an international armed conflict, he claimed there were few if any Vietnamese prisoners of war at Tuol Sleng until 1978, and he argued that Duch should benefit from the application of the statute of limitations and the amnesty law.



In his review of the evidence, Savuth suggested that the members of the Standing Committee were solely responsible for the evacuation of Phnom Penh and the execution of members of the prior regime—crimes, incidentally, that were not charged against Duch. Savuth argued that after the Khmer Rouge consolidated their power around the country, only zone standing committees, members of the general staff, and comparable cadre had the authority to execute prisoners. Here, Savuth implicated Nuon Chea and Khieu Samphon in the crimes at S-21, two defendants who will be tried in case 002 next year, and announced that Pol Pot, who has been dead for 10 years, should also be prosecuted. Savuth repeatedly echoed the scapegoat argument, emphasizing that the record showed that Duch never killed anyone directly and that none of Duch’s subordinates was now on trial. He concluded by arguing that Duch should be exonerated because he was just following orders—someone who “fell victim as a loyal servant to the regime” and would have himself been killed by Angkor if he had resisted. Savuth emphasized that only if the proceedings are fair will the dead souls rest and justice be done.



The next morning, Duch’s French counsel, Françoise Roux, took the podium. Roux is a legend in international criminal law, having—among other high profile clients—successfully defended Ignace Bagileshima before the Rwanda Tribunal and avoided the death penalty for the so-called 20th hijacker Zacarias Moussaoui following the September 11th attacks. Roux began his presentation by announcing that this would be his last appearance in court as he was on the eve of assuming a position of head of the defense section for the Special Tribunal for Lebanon. He also admitted that he had been forced to amend his remarks in light of his co-counsel’s presentation the day before, and he suggested that he disagreed with several of the arguments advanced on his client’s behalf. Roux acknowledged the paradox he now faced of having a client who had apparently simultaneously pled guilty and also asked for acquittal, likening his client to Albert Speer, who admitted his responsibility without a formal guilty plea and was accorded a 20-year sentence. Roux tried to rehabilitate Duch’s closing remarks, noting that his apologies were sincere “moments of truth” and that no one should doubt the tears that accompanied his testimony over the course of the trial.



The rest of Roux’s presentation was aimed at the Co-Prosecutors and their failure to give Duch sufficient credit for giving them the bulk of the evidence against him. In this regard, Roux played a moving video excerpt from the Closing Statement of Peter McCloskey of the Yugoslav Tribunal in the Obrenović case. In this case, involving a military commander charged with responsibility for the crimes committed at Srebrenica, the Prosecutor in open court gratefully acknowledged the guilty plea of the defendant, his sincere remorse, and his cooperation during the course of the trial and then sought a mere 17-year sentence. At the close of the video, Roux announced, “this is what this trial should have been” and implied that more dialog between the defense and the prosecution would have avoided the debacle of the day before. Roux urged the tribunal to regard superior orders in mitigation, especially given Duch’s continued cooperation with Case 002 and the fact that he had already spent 30 years in captivity of sorts (as a fugitive and then in military custody).



Roux also repeatedly invoked the concept of obedience, arguing that his client never enjoyed full autonomy and to argue otherwise was to “re-write history.” Roux critiqued the prosecution for implying that his client bore the same degree of responsibility as a Pol Pot when the evidence, including testimony from the Prosecution’s own witnesses, revealed that Duch would have been killed had he not complied. Turning to some of the legal issues, Roux rejected the Prosecution’s efforts to invoke the joint criminal enterprise doctrine, arguing that others who were part of the supposed JCE should be entitled to defend themselves. He also argued that Duch cannot be charged with the direct commission of torture, as the Prosecution implied. He suggested that Duch might, like so many other victims of the regime, be suffering from post-traumatic stress disorder/syndrome, which might explain Duch’s apparent emotional insensitivity. Roux urged the tribunal to bring Duch “back into the fold of humanity.”



V. Rebuttal



The rebuttals—which offer the parties to comment on each other’s Closing Statements—began immediately. The Civil Parties accused the defendant of trying to ride on two horses at once, implying that his inconsistent statements were, in effect, an abuse of process that should have been resolved between the defense counsel. Khan accused Duch of turning away from the prosecutors rather than engaging them. Studzinsky called the defense’s volte face a “slap in the face” of the Civil Parties. The Civil Parties argued collectively that statute of limitations, personal jurisdiction, and other such defenses should have been raised as preliminary matters and, as such, were waived. They all doubted Duch’s sincerity, and Jacquin accused Duch of seeking the pity his victims never had. After praising Roux’s service to international justice, Canonne accused his compatriot of insulting Cannone’s clients when he sought to minimize the horrors of S-21 by comparing the number dead to the hundreds of thousands of Cambodians killed throughout the Khmer Rouge era. Suon, himself a victim, lost his composure twice over the course of his rebuttal. He accused Savuth of contradicting his own client’s testimony at trial and, in so doing, paining the victims.



The Co-Prosecutors next presented their rebuttal and things got even more combative. Smith told the judges they had been “misled” by virtue of Savuth’s sudden request for an acquittal. Indeed, both Co-Prosecutors argued that, Duch should not benefit from any mitigation for his cooperation if he now seeks acquittal. Smith also wondered aloud whether Savuth had been following instructions from his counsel or if he had acted on his own, “leaving behind” his client. Smith—a former ICTY prosecutor himself—distinguished the situation of Obrenović from the current case on the ground that the former had enjoyed a distinguished military career prior to the disintegration of Yugoslavia and was accused of command responsibility—i.e., failing to supervise his troops—with respect to a single, albeit horrific, massacre. Duch, on the other hand, has a long history of participating in abuses that pre-dates the Khmer Rouge era.



Leang addressed Savuth’s legal arguments, rebutting each one with references to international law, domestic precedent, and prior rulings of the tribunal. She also suggested that if Duch had maintained a consistent position during the trial, the victims might have accepted his apology. At one point, Khan intervened in the Co-Prosecutors’ rebuttal and asked the Court to invite Duch to re-plead and clarify his position. Savuth and Roux largely echoed the themes of their original Closing Statements, though Roux also argued that had Duch stepped down, someone else would have simply taken his place as chairman of S-21. Although the Rules say nothing of a rebuttal to a rebuttal, Smith nonetheless rose once more and called upon the defendant to pick a defense.

The President of the tribunal, Nil Nonn, finally invited the accused to make a final statement at the close of the defense’s rebuttal and clarify his position. Duch rose and stated:



I am most grateful for the opportunity offered to me to make my last words. First, I would like to tell the Court about the spirit of my co-operation with the Court. … I was determined to report to the Court sincerely, honestly based on my best memories and to prove it, at the Military Court, all the documents that I already co-operated in responding to the questions of the judges have already been provided to the Trial Chamber. And here, at this Court, I have responded to all the questions put to me by the Co-Investigating Judges and additional questions by the Co-Prosecutors. The records of the interviews at the ECCC are well used as the evidence and proof. … Questions have been fully been put by parties to me and by the Bench to me, and I have fully responded to such questions and the proof can be found in the transcript, hundreds of pages of transcript. …



So I am here to tell the Court that I have fully co-operated with all levels of the Court, including that of the Domestic Court, the Military Court and this hybrid Court. Second point, I would like to express concerning my apologies, and rather my guilt admission. … Having taken into account the more than one million souls who perished, I never forget them, including those of my relatives, and I have acknowledged how these people had suffered before they died. And I also used another word that all crimes committed by the CPK, I myself, as the member of the Party, acknowledge and apologize for them as the member of the Party, and Pol Pot relied heavily on the members of the Party and those members—and I was among them. So I would like to seek for apologies before my people and my nation. Yesterday the prosecutor, the national prosecutor indicated the new number of 12,300 [who died at S-21]. I never challenged such number anyway because I admit that even more than—there were more than the number that already indicated who died at S-21, and I am responsible for the crimes without any denial. … I still maintain my position that I am responsible for the crimes as the member of the criminal party.



Duch then said: “I will leave it to the Court to decide. I would ask the Chamber to release me. I’m very grateful.” Judge Sylvia Cartwright of New Zealand once again asked Duch for clarification of his position, and he indicated his preference that his national lawyer speak for him. Savuth then rose and confirmed that the request for release was in essence a request to be acquitted, not a plea for complete mitigation. With these final words, Duch and his counsel largely destroyed the painstakingly constructed strategy of accepting responsibility, expressing contrition, and hoping for mitigation.



VI. Conclusion



There were some exceedingly odd moments over the course of the week. For example, when Duch would enter the courtroom, he would often bow to the public gallery, generating laughs among the audience and an occasional bow in return. At one point, Duch pressed a note to the glass facing the public gallery, which was acknowledged by someone in the audience. At another point, a foreigner placed a note on the glass for Duch, who saluted in response. Several of the lawyers questioned Duch’s conversion to Christianity, noting his opportune choice of a religion that embodies a notion of forgiveness. The lawyering was at times brilliant, contestable, and unsettling and the last minute schism between Duch’s lawyers will no doubt go down in history as an example of a fatal flaw in the hybrid systems. A verdict is expected this spring.