Dispute Over Sentence of Khmer Rouge Prison Chief

By SETH MYDANS
Published: March 30, 2011

BANGKOK — Prosecutors and defense attorneys both asked for drastic changes this week in the sentence given to the former commandant of the Khmer Rouge’s main prison and torture center.

In a three-day appeal hearing outside Phnom Penh prosecutors asked for a maximum sentence of life in prison. The defense asked for an acquittal that could allow the immediate release of the defendant, Kaing Guek Eav, better known as Duch.

He is the first Khmer Rouge official to stand trial for atrocities committed when the radical Communist regime held power in Cambodia, causing the deaths of an estimated 1.7 million people from 1975 to 1979. Four senior Khmer Rouge leaders are in custody in what is known as Case Two, which court officers say is expected to start this summer.

Last July Duch was sentenced to 35 years in prison for war crimes and crimes against humanity after an emotional and sometimes lurid trial describing the torture and killing of inmates at the Tuol Sleng prison.

The sentence was reduced to 19 years for time served and because of technicalities, arousing an outcry from survivors of the Khmer Rouge regime. It meant that Duch, now 68, could possibly walk free one day, particularly if the sentence is reduced for good behavior.

More than 14,000 prisoners were held and interrogated at Tuol Sleng; only a handful survived to see the Khmer Rouge driven from power by a Vietnamese invasion. The trial included vivid testimony, mostly from Duch, about prisoners’ torture and execution.

During the trial Duch acknowledged and apologized for his crimes in what many analysts saw as a tactic to obtain a lighter sentence, though some observers also saw genuine remorse. Then, on the final day of the trial, he fired the French lawyer who had constructed this defense. His Cambodian co-counsel said Duch was not guilty and demanded his immediate release.

During the appeal hearings this week his lawyers repeated that demand using a familiar defense — that Duch had obeyed his superiors for fear of execution. They called the tribunal, which is supported by the United Nations, “nothing but a venue for vengeance.”

“He had no other choice than to implement the orders, otherwise he would have been killed,” said one of his lawyers, Kang Ritheary, addressing the judges. “If you were in his shoes in 1979, what would you have done?”

Prosecutors, meanwhile, had their own criticisms of the court’s sentence last year. They said too much weight had been given to mitigating factors like Duch’s cooperation and his qualified expressions of remorse.

“We call for the imposition of a life term, reduced to 45 years,” said a prosecutor, Andrew Cayley. That figure takes into account 11 years Duch spent in illegal detention in a military jail. “For the purposes of history, a life term must be imposed,” Mr. Cayley said.

Duch’s unexpected declaration of innocence at the end of the trial undercut his claim of remorse, Mr. Cayley said.

A ruling is expected this summer.

Also this summer the second trial is due to begin, focusing on the four surviving senior members of the Khmer Rouge, all in their 70s and 80s and in poor health. The top Khmer Rouge leader, Pol Pot, died in 1998. The defendants in Case Two are Nuon Chea, known as the movement’s chief ideologist; Khieu Samphan, the former head of state; Ieng Sary, who was foreign minister; and his wife, Ieng Thirith, who was minister for social affairs.

Although much of the world’s attention has moved far away from the decades-old crimes of the Khmer Rouge, the atrocities still arouse intense feelings in this traumatized country.

Norng Chan Phal, who was rescued as a child from Tuol Sleng when it fell to the Vietnamese in 1979, burst into tears on the first day of testimony Monday when he heard defense lawyers arguing for acquittal, according to Reach Sambath, chief spokesman for the tribunal.

“This is crazy,” he shouted, flinging a plastic bottle of water to the ground.

“He lost control,” Mr. Sambath said. “He said: ‘There is no justice! This is not justice for my father and mother who died in Tuol Sleng.’ ”

Mr. Sambath said he had comforted him saying that he, too, had lost his parents and that it was time to move forward and to let the law take its course.

© 2011 The New York Times

http://www.sundaytimes.lk/index.php/world-news/6002--victims-of-krouge-torture-prison-seek-justice-in-appeal
Victims of KRouge torture prison seek justice in appeal
Mohideen Mifthah

PHNOM PENH, March 30, 2011 (AFP) - Survivors and relatives of some of the 15,000 people who died in a Khmer Rouge prison run by torture chief Duch made a final call for more reparations as his appeal case drew to a close Wednesday.

Cambodia's UN-backed court sentenced Duch, 68, in July to 30 years in jail for war crimes and crimes against humanity for overseeing mass murder at the notorious prison Tuol Sleng -- or S-21 -- in the late 1970s.

The only reparations the court awarded the victims, known as the civil parties, was to include their names in the judgment and agree to publish Duch's apologies.

Financial compensation for victims is not an option but their lawyers on Wednesday called for other forms of collective and moral redress, such as memorials or free psychological support.

Their appeal followed those of the defence and the prosecution earlier this week and marked “the last moment for civil parties to get justice”, Brice Poirier from Avocats Sans Frontieres, which represents some of the victims, told AFP.

Lawyers are also asking for more civil parties to be admitted after the lower court rejected 24 of the 90 applicants, saying they had failed to prove their harm was closely linked to Duch's actions.

This had caused “distress” to individuals already “traumatised once by the actions of the accused”, lawyer Karim Khan told the Supreme Court Chamber.

In their appeal on Monday, Duch's lawyers called for his acquittal and release, saying the court had no right to try him because he was “just a minor secretary” following orders.

The prosecution argued on Tuesday that Duch had failed to show “real, sincere remorse” and demanded life imprisonment, to be reduced to 45 years for time spent in unlawful detention before the tribunal was established.

A ruling on the appeals is expected in late June.

Anne Heindel, a legal advisor to the Documentation Centre of Cambodia, which collects evidence of Khmer Rouge atrocities, said the civil party appeal reminds the court that the proceedings are not just about legal arguments but about “the lives of flesh and blood victims”.

A bespectacled Duch could be seen scribbling notes throughout the hearing.

Duch was originally given a 35-year jail sentence but this was reduced for the period of illegal detention.

Given time already served, he could walk free in less than 19 years, to the dismay of many victims of the brutal 1975-1979 regime.

Led by “Brother Number One” Pol Pot, who died in 1998, the Khmer Rouge wiped out up to two million people through starvation, overwork and execution.
S-21, in Phnom Penh, was at the centre of the regime's security apparatus.

Duch has been detained since 1999, when he was found working as a Christian aid worker in the jungle. He was formally arrested by the tribunal in July 2007.

Copyright © 2011 Times Online.

http://www.phnompenhpost.com/index.php/2011032948222/The-Post.blogs/Duch-Supreme-Court-hearings-open.html
Duch appears at the Khmer Rouge tribunal on Monday (ECCC).
By James O'Toole and Cheang Sokha

Appeals in the case of former S-21 prison chief Kaing Guek Eav began at the Khmer Rouge tribunal yesterday with a contentious debate on the court’s jurisdiction and its right to try the accused, better known as Duch.

Prosecutors, the defence and civil party lawyers have all appealed the original judgment handed down last July, in which Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions and sentenced to 30 years prison. Yesterday’s proceedings focused on the defence appeal, with lawyers Kar Savuth and Kang Ritheary charging that Duch falls outside the court’s mandate to prosecute “senior leaders” and those “most responsible” for crimes committed under Democratic Kampuchea.

In a rambling and often incoherent address at the outset of the hearing, Kar Savuth accused the tribunal of violating Cambodian law in its decision to try Duch, referencing documents including the 1991 Paris Peace Agreements and the 1994 Law to Outlaw the Democratic Kampuchea Group that he said restrict prosecutions of Khmer Rouge cadres.

“When there was a dispute between Thailand and Cambodia at the border, there was an appeal to the international community to really force Thailand to respect the law,” Kar Savuth said, drawing chuckles from the gallery. “When Thailand does not really respect these regulations, we say that Thailand is behaving unlawfully, and we believe that this tribunal would not really follow the footsteps of Thailand.”

Kar Savuth later added that because the Khmer Rouge were “lawless”, “whatever any individual did was not against the law”. He also questioned why former KR standing committee members So Phim and Ta Mok had not been identified as suspects by the court.

Ta Mok was arrested in 1999 before dying in custody in 2006. So Phim committed suicide in 1978.

Both Kar Savuth and Kang Ritheary also questioned why Duch could be considered one of those “most responsible” when the dozens of other prison chiefs of the DK era had not been arrested as well.

“Duch [was] merely the chief of a prison, similar to the 195 chiefs of prisons throughout Cambodia,” Kar Savuth said, adding that many former KR officials had been peacefully reintegrated into the government without facing charges.

“Even now at the Ministry of Defence, there are former Khmer Rouge cadres who have rank and status,” he said.

Terith Chy, head of the Victim Participation Project at the Documentation Centre of Cambodia, said the defence arguments were “probably more for the crowd than for the judges”.

“That’s our worry.... [that] people might buy what Kar Savuth has said, because he’s such a character, but we feel that these are not the legal arguments that [a] judge is looking for,” Terith Chy said.

“It’s obvious it’s unfair, why just one prison chief is prosecuted and why not others, but looking from the available evidence at the court, looking at the gravity of what happened in Tuol Sleng, looking at the responsibility of Duch ... he’s the type of person to be prosecuted.”

Co-prosecutor Chea Leang said the jurisdictional challenge was illegitimate since it had not been raised during the initial hearing as required by court rules. That aside, she said Duch was clearly one of those “most responsible” for Khmer Rouge crimes.

“The policy of the Communist Party of Kampuchea was implemented by the security centres, and the security apparatus was the heart of the policy of the CPK in smashing enemies,” she said. “S-21 was the most important office in this apparatus.”

Civil party lawyer Martine Jacquin added that Duch had “full control over the actions of his subordinates and over everything that happened at S-21”, a facility in which nearly all of the perhaps 14,000 people who entered were eventually killed.

The accused himself spoke only briefly at the beginning of the hearing, telling the court that he authorised his lawyers to act on his behalf. Wearing a white jacket over a button-down shirt, he appeared frail and at times did not seem to be paying attention to the proceedings.

Eng Try, 56, of Kampong Cham province, said outside the court that he had lost his parents and six siblings to the Khmer Rouge and strongly opposed the defence team’s bid for acquittal.

“My suffering from the Khmer Rouge regime is tremendous. He should serve life imprisonment,” Eng Try said.

Prosecutors requested in their appeal that Duch receive a 45-year jail term, commuted from life in prison because of his excessive pre-trial detention. This issue will be discussed when the tribunal reconvenes today.

Copyright © 2011 The Phnom Penh Post. All Rights Reserved..

Independently Searching for the Truth since 1997.
MEMORY & JUSTICE