The Dismissal of Francois Roux: Theories of Duch’s Undermined Confidence

By Chad Kilpatrick, Tulane University Law School JD Candidate 2012

Documentation Center of Cambodia Summer Legal Associate 2010



Just weeks prior to being convicted of crimes against humanity and grave breaches of the Geneva Conventions, Kaing Guek Eav alias Duch, the former Chairman of Phnom Penh’s infamous S-21 interrogation center, requested the withdrawal of his international co-lawyer, Francois Roux. Duch cited three underlying reasons for his “loss of confidence” in a letter to the ECCC’s Defense Support Section (DSS), all of which are undisclosed.[1]



The DSS subsequently granted Duch’s request in a published letter to the President of the Trial Chamber explaining:



(a) There is no reason to doubt that Mr. Kaing’s loss of confidence is genuine;

(b) There is no reason to believe that the Request is aimed at obstructing the proceedings;

(c) The withdrawal of Maitre Roux at this stage will not unduly delay the proceedings;

(d) The loss of confidence amounts to exceptional circumstances.[2]



The ECCC Trial Chamber then took note that the withdrawal had been granted.[3]



In the days following the withdrawal, national co-defense counsel Kar Savuth made several telling statements. In an interview with Radio France Internationale, Mr. Kar said that Duch did not ask for a dismissal of the French lawyer because of a conflict between Mr. Roux and himself.[4] He did say, however, that Duch wanted to hire a Chinese lawyer because “China is a communist country and the Pol Pot regime was communist.”[5] He also said that Duch “…doesn’t want a lawyer from a free country to judge the communist people” and that his client’s view was that “communist law is contradictory to free law.”[6] However mystifying these comments are, they do suggest that Duch’s decision to release his international defense counsel may be related to the complicated hybrid Cambodian and international structure of the ECCC and Duch’s own perception of his criminal responsibility in the context of a communist state.



Confusion Over Plea Strategy: Ineffective Assistance of Counsel?



Mr. Roux, as part of his opening statement on March 31, 2009, said, “There is no difference…between national and international lawyers.”[7] He also explicitly pointed out his personal respect for national co-counsel, Kar Savuth, calling him a “credit to the profession” because he was committed to defending Duch even though he himself was a former prisoner of the Khmer Rouge.[8]



From the beginning of the proceedings, Duch’s co-defense lawyers both expressed that their client acknowledged his guilt, even calling it “common knowledge.”[9] Mr. Kar, in particular said, “Whatever the Co-Prosecutors raised, Duch accepted it with both hands.”[10] Indeed, Duch himself told the Court that he ordered “the implementation of…activities which affected many innocent people including women and children” and that he was “solely responsible for those crimes.”[11] He even said that he “would like to acknowledge…responsibility through legal means” and emphasized that he was responsible for the crimes committed at S-21, “especially the tortures and execution of the people there.”[12]



However, much has been made of the controversial final days of the trial where there appeared to be inconsistencies in the positions of co-defense lawyers, Mr. Kar and Mr. Roux, regarding Duch’s presumed guilty plea. On November 27, 2009, the last day of proceedings, Mr. Kar surprisingly argued that the ECCC did not have proper jurisdiction over Duch, reasoning that he was not a senior leader of the Pol Pot regime.[13] He also argued that it was comparatively unjust to prosecute Duch for crimes committed at S-21 and not those responsible for crimes committed at other prisons.[14] He then branded Duch a “scapegoat” and controversially requested that the court “[r]elease him and let him go home.”[15]



The Prosecution subsequently challenged Duch’s international defense lawyer, Mr. Roux, on this apparent change of plea. If his co-counsel does not comply with Duch’s instructions, the Prosecution team argued, the court may be exposed to the possibility of an appeal. It also argued that Duch’s request of an acquittal undermined his expressions of remorse and invited a longer sentence.[16]



Mr. Roux responded that 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.”[17]



The judges then asked Duch whether he wished to speak, saying “[t]here have been some doubts in the comments by counsel for the accused. The Chamber expected the defense to clarify its position. Our question was not well answered yet…we wish to hear the personal position of the accused.”[18]



Duch then said that he had expressed his apologies and guilty admission and that he was “responsible for crimes without denial.”[19] But he went on to say that he was not part of the senior leadership of the Khmer Rouge and that the purpose of the ECCC is to bring senior leaders of the regime to justice.[20] He then said that he had “served for ten years, six months and 18 days” and that he did not challenge the legality of his detention.[21] He ended his statement with this: “I ask the Chamber to release me.”[22]



The President of the Chamber responded, “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?”[23] Duch then said, “My ability to analyze is limited to what I can report. I would like the Chamber to release me.”[24]



The judge then asked Duch’s national co-defense lawyer, Mr. Kar, to “clarify the position of the defense.”[25] Mr. Kar reiterated that Duch was not a senior leader of the Khmer Rouge and that he was not among those most responsible for the crimes alleged.[26] When pressed by the judges concerning whether an acquittal was sought, Mr. Kar said, “Release means acquittal.”[27]



The proceedings thus ended with Duch’s co-defense counsel taking ostensibly different positions on whether an acquittal was sought. Mr. Roux’s argument was that various mitigating factors including Duch’s demonstrated remorse should allow his sentence to be limited to the time already served in detention, while Mr. Kar stressed other legal arguments such as lack of ECCC jurisdiction that should warrant acquittal. It is arguable that the discrepancy was more an issue of semantics rooted in the language barrier than a fundamentally different legal strategy. Indeed, both attorneys sought the same outcome—immediate release. Nonetheless, distinguishing between the two positions was significant to the Trial Chamber.



In a telephone interview after the conclusion of proceedings, Mr. Roux said that he was “very saddened” by the discrepancy during the closing remarks. He said that he was surprised by Mr. Kar’s final pleading and that “it was surely a mistake in this tribunal to have two co-lawyers.” He also said that he “profoundly” regretted the way that the trial concluded.[28]



Nevertheless, Mr. Roux’s theory of mitigation was akin to the position the Trial Chamber adopted in its July 26 judgment sentencing Duch to 35 years in prison while subtracting 11 years for time already served and five more for illegal detention.[29] Mr. Kar has already made it clear that he plans to appeal for a lower sentence, challenging the 19 years Duch is left to serve.[30]



One question to be considered is whether the confusion over plea strategy led Duch to dismiss Mr. Roux for ineffective assistance of counsel. It does appear that Mr. Kar’s statements on the plea issue are more congruent with Duch’s request than Mr. Roux’s statements, if Duch indeed understood the legal distinction. This could be significant, as the Prosecution noted, because if Mr. Roux did not adequately represent his client’s position and comply with his instructions, Duch could possibly appeal on those grounds. Although the standard for appeal on this basis remains uncertain as it is not addressed in the ECCC Internal Rules, such a claim would likely be unsuccessful as standards of effectiveness are generally strict. For example, in American jurisprudence to successfully assert such a claim a defendant must demonstrate that counsel was so ineffective that there has been a “mockery of justice.”[31] The plea discrepancy, although troubling, would be unlikely to meet this threshold. Nonetheless, the contention over Duch’s plea on the final days of trial does suggest one possible source of Duch’s “loss of confidence” in Mr. Roux.



Defense Grounded in CPK History



Duch’s final submission to the court provides a fascinating yet perplexing account of his role in the Communist Party of Kampuchea (CPK) hierarchical structure, particularly in relation to the rationale driving the interrogations at S-21. In his submission, Duch described the inner workings of the CPK security apparatus and his responsibilities in deriving “a proper interrogation tactic”[32] that would involve “inevitable” physical torture.[33] He claimed that he was “like a cog in a running machine” of the CPK structure,[34] but that he was “solely responsible for the loss of at least 12,380 lives.[35] He continued, “These people, before their deaths, had endured a great and prolonging suffering and countless inhuman conditions”[36] and he acknowledged responsibility for all of the crimes committed at S-21 “in the legal and moral context.”[37]



Duch’s statements may be considered consistent with Mr. Roux’s legal strategy of candid acknowledgment of guilt paired with a request for mitigation of sentencing. However, the general complexity of his narrative pertaining to the structure of the CPK also suggests a compelling basis for his reported desire for international counsel who better understands communist ideology. Indeed, Duch might believe that Chinese counsel would be better equipped to articulate the relationship between the communist system he served and his crimes. Assuming Duch’s final written submission provides an accurate depiction of his personal position that he is a guilty man both motivated and constrained by the intricate and ideologically-driven CPK structure—in essence a plea of duress—this is perhaps a reasonable request. If Duch does not feel that Roux adequately understood or represented his defense, his undermined confidence in Roux can only be expected.



The Impact of Legacy Projects



Another theory regarding Mr. Roux’s dismissal is connected to various legacy projects affiliated with the ECCC. For example, it has been widely reported and criticized that a French documentary film team has been given access to parts of ECCC proceedings while other media are excluded. This preferential access was highly publicized regarding the “reenactment” at Tuol Sleng, where Duch accompanied ECCC staff and met with S-21 victims as part of the investigation.[38] Some experts involved in the proceedings have even suggested that the activities of the French filmmakers may have influenced Mr. Roux’s performance as Duch’s defense attorney, or at least Duch’s perception of his performance. While such assessments are difficult to substantiate, the role of legacy projects should not be overlooked as a source of distrust between Duch and his international counsel.



Political Interference



Kar Savuth is well known not only for representing Duch but also Prime Minister Hun Sen. Accordingly, there has been speculation that political influence may have played a role in Mr. Kar’s untimely jurisdictional argument that Duch was not a senior leader of the Khmer Rouge. The Prime Minister has voiced publically his opposition to trials of Khmer Rouge beyond the four currently detained (Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith) in Case 002, even suggesting that putting more people on trial for crimes committed during Democratic Kampuchea could plunge the country back into civil war.[39] Thus, it has been suggested that if Duch were able to elude the court’s jurisdiction on the grounds that he is not a senior leader, the five suspects in potential Cases 003 and 004 would also be found to fall outside of the court’s reach. Some have accordingly suggested that Mr. Kar may have orchestrated the removal of Mr. Roux under political pressure to further advance this argument, a view that Mr. Roux refused to voice. These suspicions were intensified by the fact that the dismissal took place only days before the verdict. Although reports of corruption in the Cambodian government and of undue political influence at the ECCC make such conspiracy theories plausible, they remain uncorroborated.



Looking Forward



With Duch’s rationale for withdrawing Mr. Roux as counsel undisclosed by defense counsel or the Defense Support Section, we can only speculate as to why it occurred and whether the foregoing reasons provide insight into his lost confidence. As a consequence, the man convicted of some of the most horrific crimes prosecuted to date remains ever-enigmatic as an appeal likely looms.





[1] Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07-2007/ECCC/TC, Re: Request by Mr. Kaing to Withdraw Co-Lawyer François Roux, ¶ 1 (Defense Support Staff, July 5, 2010).

[2]Id. at ¶ 6. The DSS relied on Article 7.2 of its Administrative Regulations which reads, “Change of lawyers, A suspect, charged person or accused may apply to the ECCC to change both or either of the Co-Lawyers. A suspect, charged person or accused may only be permitted to change Co-Lawyers in exceptional circumstances.” Additionally, after reviewing the approach taken at other international or hybrid courts, it found that withdrawal of counsel is generally accepted if there is a genuine loss of confidence, unless it would unduly delay the proceedings.

[3]Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07 2007/ECCC/TC, Notification of Withdrawal of Designation of Co-Lawyer (Trial Chamber, July 9, 2010).

[4] Phorn Bophia and Douglas Gillison “Duch Seeking Chinese Lawyer, Kar Savuth Says,” Cambodia Daily. July 12, 2010.

[5] Id.

[6] Id.

[7] Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07-2007/ECCC/TC, Transcript of Proceedings at 86 (Trial Chamber, March 31, 2009).

[8] Id. at 88

[9]Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07-2007/ECCC/TC, Transcript of Proceedings at 58-9 (Trial Chamber, February 17, 2009).

[10] Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07-2007/ECCC/TC, Transcript of Proceedings at 82 (Trial Chamber, March 31, 2009).

[11] Id. at 68.

[12] Id. at 67.

[13] Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07-2007/ECCC/TC, Transcript of Proceedings at 37 (Trial Chamber, November 27, 2009).

[14] Id. at 33-36.

[15] Id. at 38.

[16] Id. at 51-52.

[17] Id. at 52.

[18] Id. at 53.

[19] Id. at 56.

[20] Id. at 58.

[21] Id. at 59.

[22] Id.

[23]Id. at 60.

[24] Id.

[25] Id. at 61.

[26] Id. 61-62.

[27] Id. at 62.

[28]Julia Wallace, “Duch Stuns Trial With Request To Be Released,” Cambodia Daily, November 28-29, 2009.

[29]Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07-2007/ECCC/TC, Judgment (Trial Chamber, July 26, 2010).

[30] James O’Toole, “Duch to Launch Appeal,” The Phnom Penh Post, July 28, 2010.

[31]Jimmy E. Tinsley, “Ineffective Assistance of Counsel,” 5 Am. Jur. Proof of Facts 2d 267 § 2.

[32]Prosecutor v. Kaing Guek Eav alias “Duch,” Case No. 001/18-07-2007/ECCC/TC, Accused’s Final Written Submission at 3 (Trial Chamber, November 23, 2009).

[33] Id. at 24.

[34] Id. at 29.

[35] Id.

[36] Id.

[37] Id.

[38]See e.g., Erika Kinetz and Prak Chan Thul, “ECCC, Journalists Clash Over Tribunal Access,” Cambodia Daily, February 28, 2008; Erika Kinetz “Tensions Mount Between ECCC Officials, Media,” Cambodia Daily, March 3, 2008; Erika Kinetz “News Anchor Refuses to Cover KR Tribunal,” Cambodia Daily, March 11, 2008; Erika Kinetz “Film Crew’s Access to ECCC Proceeding Pending,” Cambodia Daily June 12, 2008.

[39]Ek Madra “Cambodia PM Rejects Wider Khmer Rouge Trials,” Reuters, March 31, 2009.



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