The Duch Verdict

John D. Ciorciari is an assistant professor at the Gerald R. Ford School of
Public Policy, University of Michigan, and senior legal advisor to the
Documentation Center of Cambodia.

On July 26, the Extraordinary Chambers in the Courts of Cambodia (ECCC)
issued its first verdict in the case against Duch. The tribunal found Duch
guilty of war crimes and crimes against humanity for atrocities committed at
"Office S-21," the infamous Khmer Rouge prison at Tuol Sleng. The verdict
was an important watershed for Cambodia. For the first time, a key Khmer
Rouge official has been held accountable in a credible court of law for
crimes of the Pol Pot era.

Nevertheless, the verdict immediately attracted substantial criticism from
Cambodian survivors, including Foreign Minister Hor Nam Hong. This article
briefly discusses two key sources of consternation. First, many victims have
complained bitterly that Duch's punishment was too light. The Trial Chamber
sentenced him to 30 years in prison, which amounts to less than 20 years
after subtracting time Duch has already served. Second, civil
parties-individuals who joined the case to pursue redress for injuries they
suffered as a result of Duch's conduct-were disappointed with the Trial
Chamber's award of reparations. The judges promised only to publish the
names of the victims in the verdict and to compile a record of Duch's
statements of confession and contrition.

The Sentence

Duch's sentence was the primary source of frustration. It is roughly in line
with precedents from other international tribunals, but for survivors, it is
understandably difficult to stomach the fact that Duch could walk free if he
reaches the age of 86. Even the strictest penalty available to the
tribunal-a life sentence-pales beside the thousands of lives lost at the
Killing Fields. The ECCC co-prosecutors requested a sentence of 40 years,
but the Trial Chamber opted for a shorter 30-year prison term. It held that
Duch's cooperation and contrition merited a sentence of a term of years
rather than life imprisonment. It also reasoned that Duch was entitled to a
sentence reduction for the violation of his rights, because he was illegally
detained for several years prior to the commencement of the ECCC
proceedings. The Trial Chamber was in an unenviable position, trying to
balance the interests of suitable retribution against considerations of
fairness and due process.

Duch's illegal pre-trial detention probably furnishes the mot compelling
reason to curtail his prison term. Although few victims will have sympathy
for the former S-21 chief-who imposed infinitely harsher imprisonment on his
victims-the ECCC can only promote norms of fairness and justice if it abides
by them itself. Indeed, one of the best features of the Duch trial is that
it was fair to the defendant despite overwhelming historical evidence of his
guilt. The court should be commended for taking due process norms seriously
and setting a useful example for the Cambodian judicial system. Its award of
a modest sentence reduction to Duch was by no means out of order.

The Trial Chamber also based its decision on the argument that Duch had been
cooperative and contrite. Courts have good reasons to incentivize defendants
to speak, reveal the truth, and aid in the quest for accountability. Duch is
the only well-known Khmer Rouge official to date to acknowledge culpability.
At trial, also confirmed numerous facts and introduce bits of new
information about the workings of S-21. However, his acknowledgements added
marginally at best in the search for the historical truth about the
atrocities at Tuol Sleng, and his cooperation was not needed to convict him,
because documentary and other evidence against him abounded.

It was more important to give Duch an incentive to testify against four
senior Khmer Rouge leaders in Case No. 2. The evidence connecting those
individuals directly to physical acts of atrocity is less overwhelming than
it was for Duch, and thus his willing testimony could be valuable. It is
unclear whether Duch's sentence will indeed prompt him to offer useful
testimony in Case No. 2. If he has useful information, he may already
possess ample incentive to share it. Impugning his superiors would emphasize
the limits of his own responsibility and ensure that those who ordered him
to commit atrocities would not go free.

In theory, the prospect of a light sentence could also lure one or more Case
No. 2 defendants into breaking ranks, acknowledging crimes, and accepting
responsibility. However, this seems unlikely. All four charged persons are
considerably older than Duch and in ill health. None could reasonably expect
to outlive a sentence of the length Duch received. Their greater incentive
to speak will be to impugn one another to avoid taking responsibility.

The case for reducing Duch's sentence due to contrition is relatively weak.
When courts reward apologies, they need to do so carefully to avoid
encouraging false or empty shows of regret. Acts matter more. Duch did
express regret to the court, but he missed his opportunities to issue a
direct apology to victims. At the end of his trial, after months of
acknowledging guilt and asking for mercy, he reversed course and entered a
plea through his domestic defense lawyer of "not guilty." If the scale of
his crimes had not been so great, his shows of regret would merit serious
consideration. Given the horrors he oversaw at S-21, his apologies cannot
alone support a significant sentence reduction.

The Trial Chamber opted for a sentence toward the lower bound of reasonable
options. To exact retributive justice, it had to deliver a sentence that is
likely to consume all or nearly all of Duch's life. To uphold due process
norms and promote truth-telling and apologies, it had to start from a figure
that would make its sentence reductions at least potentially meaningful.
Duch has already announced that he plans to appeal, and the co-prosecutors
are weighing the possibility.

The Appeals Chamber should not reduce the sentence but should consider a
slightly longer prison term. A sensible approach would be to begin with the
40 years requested by the co-prosecutors-which took account of mitigating
factors and is already generous in relation to Duch's crimes-and include a
minor reduction as a remedy for his illegal detention. The result would be a
term of 35 to 38 years. This would make it highly unlikely that Duch will
walk free and better satisfy retributive interests without gutting the court's
efforts to promote due process and truth-telling.

Collective and Moral Reparations

A second major criticism of the verdict relates to reparations for civil
parties. The ECCC has neither the budget nor the authority to provide
financial reparations to individual victims. It also lacks legal authority
to enforce implementation of reparation measures by the Cambodian
government. However, it does have a mandate to provide "collective and moral
reparations" to civil parties found to have suffered wrongs. Civil parties
had good grounds for disappointment; the Trial Chamber's awards of
reparation were sorely lacking. The Trial Chamber found 66 civil parties to
qualify for redress but offered them only token acknowledgement by
publishing their names and selected statements by Duch. Numerous civil
parties have criticized them as a sign of dismissal and disrespect.

The ECCC has been a pioneer in victim participation, largely by implementing
a civil party scheme, and has won donor support partly for that reason. The
participation of civil parties in the Duch trial generated controversy,
consuming time and sometimes drawing legitimate complaints from judges and
prosecutors. The role of civil parties has thus been drastically curtailed
in Case No. 2. That policy change is defensible but does not absolve the
ECCC's responsibility to respond meaningfully to the requests of civil
parties in the Duch trial. They played an active and important role, and the
Trial Chamber erred by providing menial reparations that fell short of their
modest and reasonable expectations of a collective remedy.

The Trial Chamber should have been much more creative on the issue of
reparations. There are many possibilities short of financial awards. It can
recommend measures, help to catalyze action by donors and civil society, or
bless actions undertaken by other entities even if it does not physically
implement or fund a reparations scheme itself. The ideas proposed by
survivors and civil society organizations are not radical. They include
establishing simple memorials, commemorative gatherings of survivors, or
establishing drop-boxes where ordinary citizens can contribute funds to
address victims' needs. The ECCC's support for such initiatives would entail
minimal funds and organizational risk but would have a strong legitimating
effect and real meaning for survivors. Fortunately, the Duch verdict is not
necessarily the tribunal's last opportunity. If the co-prosecutors appeal,
civil parties can request that the ECCC Appeals Chamber make amends. The
tribunal should also have an opportunity at the conclusion of Case No. 2.

The ECCC can never make the survivors of Tuol Sleng and their families
whole. The Trial Chamber's duties included conducting a fair trial,
rendering a credible judgment of guilt or innocence, imposing suitable
punishment, and issuing reasonable collective reparations within its modest
means. It performed admirably on the first two of these tasks, which are
probably the most important for a criminal tribunal of its kind. It also
made a reasonable effort to manage Duch's punishment, which was bound to be
controversial. The greatest area for improvement going forward is to manage
its innovative civil party process more effectively. Otherwise, the ECCC
process risks further frustrating many of the survivors it is meant to
serve.

Northwestern University School of Law Center for International Human Rights
and Documentation Center of Cambodia
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

“...a society cannot know itself if it does not have an accurate memory of its own history.”

Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia