TIK PANHAO - In some of Cambodia’s thousands of killing fields, the bones of the dead can sometimes be seen, rising to the surface after storms or rain, like grisly emblems of an unburied past. Perhaps 16,000 died at the s-21 Detention Camp in Phnom Penh, or at Choeung Ek outside the city. All told, an estimated 2 million people died during Pol Pot’s terror.
Breaking the silence onstage (Photo: Simon Roughneen)
On Wednesday evening, Tik Panhao was the scene of a searing, stark drama in the dimly-lit marketplace in front of the village pagoda, a bumpy hour’s motorcycle ride outside Phnom Penh. Tears run down Nhem Roeun’s face as she watched and listened to the performers on a makeshift stage.
“Where was my father? Where did you kill him?”, a woman asks. The Khmer Rouge cadre she accuses deny any foul play, or knowing where the missing man is. Later, as the drama moves through its seven mini-plays, all played by the same group of actors and actresses, the impact of ‘Breaking the Silence’ becomes apparent.
Encouraged beforehand to speak about their experiences after seeing the play, the older audience members nod in recognition of the themes, actions, dynamics and events recounted throughout, in a sparse, almost Beckettian style, which seems to fit well with the tranquil open-air setting.
Crowd watches near the pagoda as the silence is broken (Photo: Simon Roughneen)
Sayana Ser works for the Documentation Centre of Cambodia, whose vast repository of real-life accounts of the Khmer Rouge era were reproduced, often verbatim, in ‘Breaking the Silence’. “The people identify with what they see. We have staged the play twenty times now, and often there is an emotional reaction”, she says.
Watching the enactment of a scene in which a daughter steals rice from her family amid looming starvation, older men and women turn to each other, “it’s true” is whispered around the two hundred or so people sitting in the night-time warm, fanned by an unseasonal yet welcome cooling breeze.
Now 58 and born in Svay Rieng, Nhem Roeun was in her twenties when the Khmer Rouge killed her father and brother in Battambang. “It is good that children see this”, she said, wiping her cheek, “but I am not happy that Duch is appealing”.
Kaing Guak Eav, better known as Comrade Duch, was the head of S-21, a detention and torture camp in the heart of the nearby capital. Perhaps 16000 people died there or at Choeung Ek outside Phnom Penh, one of thousands of ‘Killing Fields’ established across Cambodia during the 1975-79 Khmer Rouge regime.
So far Duch is the only person convicted of crimes committed during the Khmer Rouge, even though a quarter of the country’s population died. He is appealing his 35 year sentence, which was handed down in July 2010 by the Extraordinary Chambers in the Courts of Cambodia (ECCC), to give the Khmer Rouge tribunal its full title. He says that he committed his crimes under duress from the senior Khmer Rouge leaders, 4 of whom are scheduled to go on trial later in 2011. The prosecution is saying that Duch should face a longer jail term, given that he could conceivably emerge a free man after spending 18-19 years in jail, with the sentence effectively commuted due to time already served in detention.
From behind the wire in S-21 (Photo: Simon Roughneen)
Lawyer and writer Theary Seng’s parents were murdered by the Khmer Rouge, and she says that a reduced sentence for Duch would be an injustice. However, looking ahead to the trial of the main surviving Khmer Rouge leaders, she thinks that the inconsistencies shown by Duch during his trial and appeal could jeopardise the bigger Case Number 2.
Khmer Rouge brutality in dramatis minimalist (Photo: Simon Roughneen)
“Duch will be the star witness when Nuon Chea and the others face the court”, she said, asking “what better way to discredit the witness by having him flip-flop before the court already?” She believes that Duch came under pressure to amend his remorseful stance, adding to long-standing allegations of political interference with the court.
Duch himself claims to be a scapegoat, the only one selected from hundreds if not thousands of other Khmer Rouge of similar profile or standing to face trial. “S-21 was not unique. It was like all the other security centers where torture was employed”, he said on Wednesday at the closing of his appeal hearing.
According to the Cambodian Center for Human Rights, “allegations of political interference have also caused uncertainty over the likelihood of further indictments beyond Case 002, complicating the development of a completion strategy for the tribunal.”
Cambodian Prime Minister Hun Sen, himself a former Khmer Rouge member, has made public his reluctance to have senior colleagues testify in Case 002, and previously, the Pre-trial Chamber’s international judges claimed “reason to believe that one or more members of the RGC (Royal Cambodian Government) may have knowingly and wilfully interfered with witnesses”. Sadly, with growing doubts over the trial of the mainly octogenerian Khmer Rouge leaders, Cambodia’s tragic and traumatic drama may not be over yet.
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MEMORY & JUSTICE
Monday, April 4, 2011
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
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
CAMBODIA TRIBUNAL MONITOR: FINAL WORDS
March 30, 2011
Final Words
By Charles Jackson, Candidate for Juris Doctorate, Northwestern University School of Law, Chicago, Illinois
Visitors gather to witness the final day of the Duch appeal
Charles Jackson
Today marked the end of the Kaing Guek Eav (alias “Duch”) appeals before the Supreme Court Chamber. A gallery full of Cambodian visitors provided a fitting background to the day’s topic of civil party appeals, which centered around complaints that the Trial Chamber failed in its duty to provide an adequate forum for reparations to victims of the Khmer Rouge. However, what most will remember from today was Duch’s final statement, an oddly formulated and self-indulgent request for release that brought a close to Case 1 hearings.
Civil Party Appeals
Each of the civil parties had an opportunity to address the court today and present their appeals related to victim participation and reparations. The three main contentions of the civil parties were that the Trial Chamber 1) misinterpreted the Internal Rules by creating a two-tier review of civil party admissibility, 2) erred by applying an excessively high standard of admissibility for civil party applications, and 3) failed to provide adequate reparations to the victims.
Karim Khan, co-counsel for Civil Party Group 1, began oral arguments with an emphatic request to the Chamber to recognize the traumatic effect that the Trial Chamber’s decision to reject certain civil party applications at the judgment phase had on those victims. “After enduring months of trial, after doing everything that was asked of them…on the day of the judgment for the very first time they were told that the civil party status that had been granted to them had been revoked.” He contended that nothing in the Internal Rules could justify the Trial Chamber’s decision to impose a two-tiered review of civil party status. The standard was “conjured up.”
The other civil parties echoed this argument and submitted that the Trial Chamber’s decision amounted to a deprivation of their client’s rights. These clients relied on the initial approval of their civil party status during the entire trial. Judge Klonowiecka-Milart expressed sympathy for the civil parties who had been rejected, but questioned whose responsibility it was to manage their expectations. She also pointed out that the Cambodian Code of Civil Procedure does include a two-tiered review of applications, possibly indicating some support for the Trial Chamber’s ruling.
Related to this alleged error of law, civil parties contended that the Trial Chamber also applied an unnecessarily high burden of proof when deciding that some civil party applicants had failed to show sufficient evidence that they were related to individuals killed at S-21.
Civil Party Group 2 and 3 also took issue with the reparations awarded by the Trial Chamber, which were limited to an inclusion of the civil parties’ names within the judgment and on the court’s website. The civil parties made numerous suggestions for more appropriate “moral and collective” reparations, such as the construction of memorials, the publication and dissemination of Duch’s statements of remorse, and the provision of medical care for those victims still suffering physical or mental harm.
Frustrated with the lack of resources provided by the court, Silke Studzinsky, co-counsel for Civil Party Group 2, expressed dissatisfaction with the Trial Chamber’s decision not to impose the costs of reparations on Duch directly. She questioned why the ECCC assumed that Duch was indigent, pointing out that he had profited from selling the rights to his autobiography and from participating in the production of the film “The Last Executioner.”
Studzinsky also lamented that this hearing was the last time civil party co-counsel would act in an autonomous capacity in court. Newly added Internal Rule 12ter creates two civil party co-lawyers and directs them to “coordinate civil party representation at trial” and grants them “ultimate responsibility to the court for the overall advocacy, strategy and in-court presentation of the consolidated group of civil parties during the trial stage and beyond.”
Duch’s Closing Statement
All hearings for Case 1 ended today with a closing statement from Duch in which he tried to walk an impossible line between showing remorse for his crimes and asking for a full acquittal. He began by reiterating his main point that the ECCC lacks personal jurisdiction to try him because he was not a senior leader or among those most responsible for crimes of the Khmer Rouge. He opposed the prosecution’s characterization of S-21 as a key organ of the Standing Committee. Duch equated himself to mid-level cadre and said, “S-21 was not unique. It was like all the other security centers where torture was employed.” He then transitioned into a duress argument, saying that he only survived the Khmer Rouge regime because he “respectfully and strictly followed orders.” Duch also argued that he had acted as a cooperative and remorseful witness, a noticeably odd claim given that it was sandwiched between denials of guilt and requests for release. “I maintain remorse for the victims and ask for forgiveness…Finally, I return to my principle. I do not fit within the personal jurisdiction of the court.”
Posted by CambodiaTribunalMonitor at Wednesday, March 30, 2011
Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
Final Words
By Charles Jackson, Candidate for Juris Doctorate, Northwestern University School of Law, Chicago, Illinois
Visitors gather to witness the final day of the Duch appeal
Charles Jackson
Today marked the end of the Kaing Guek Eav (alias “Duch”) appeals before the Supreme Court Chamber. A gallery full of Cambodian visitors provided a fitting background to the day’s topic of civil party appeals, which centered around complaints that the Trial Chamber failed in its duty to provide an adequate forum for reparations to victims of the Khmer Rouge. However, what most will remember from today was Duch’s final statement, an oddly formulated and self-indulgent request for release that brought a close to Case 1 hearings.
Civil Party Appeals
Each of the civil parties had an opportunity to address the court today and present their appeals related to victim participation and reparations. The three main contentions of the civil parties were that the Trial Chamber 1) misinterpreted the Internal Rules by creating a two-tier review of civil party admissibility, 2) erred by applying an excessively high standard of admissibility for civil party applications, and 3) failed to provide adequate reparations to the victims.
Karim Khan, co-counsel for Civil Party Group 1, began oral arguments with an emphatic request to the Chamber to recognize the traumatic effect that the Trial Chamber’s decision to reject certain civil party applications at the judgment phase had on those victims. “After enduring months of trial, after doing everything that was asked of them…on the day of the judgment for the very first time they were told that the civil party status that had been granted to them had been revoked.” He contended that nothing in the Internal Rules could justify the Trial Chamber’s decision to impose a two-tiered review of civil party status. The standard was “conjured up.”
The other civil parties echoed this argument and submitted that the Trial Chamber’s decision amounted to a deprivation of their client’s rights. These clients relied on the initial approval of their civil party status during the entire trial. Judge Klonowiecka-Milart expressed sympathy for the civil parties who had been rejected, but questioned whose responsibility it was to manage their expectations. She also pointed out that the Cambodian Code of Civil Procedure does include a two-tiered review of applications, possibly indicating some support for the Trial Chamber’s ruling.
Related to this alleged error of law, civil parties contended that the Trial Chamber also applied an unnecessarily high burden of proof when deciding that some civil party applicants had failed to show sufficient evidence that they were related to individuals killed at S-21.
Civil Party Group 2 and 3 also took issue with the reparations awarded by the Trial Chamber, which were limited to an inclusion of the civil parties’ names within the judgment and on the court’s website. The civil parties made numerous suggestions for more appropriate “moral and collective” reparations, such as the construction of memorials, the publication and dissemination of Duch’s statements of remorse, and the provision of medical care for those victims still suffering physical or mental harm.
Frustrated with the lack of resources provided by the court, Silke Studzinsky, co-counsel for Civil Party Group 2, expressed dissatisfaction with the Trial Chamber’s decision not to impose the costs of reparations on Duch directly. She questioned why the ECCC assumed that Duch was indigent, pointing out that he had profited from selling the rights to his autobiography and from participating in the production of the film “The Last Executioner.”
Studzinsky also lamented that this hearing was the last time civil party co-counsel would act in an autonomous capacity in court. Newly added Internal Rule 12ter creates two civil party co-lawyers and directs them to “coordinate civil party representation at trial” and grants them “ultimate responsibility to the court for the overall advocacy, strategy and in-court presentation of the consolidated group of civil parties during the trial stage and beyond.”
Duch’s Closing Statement
All hearings for Case 1 ended today with a closing statement from Duch in which he tried to walk an impossible line between showing remorse for his crimes and asking for a full acquittal. He began by reiterating his main point that the ECCC lacks personal jurisdiction to try him because he was not a senior leader or among those most responsible for crimes of the Khmer Rouge. He opposed the prosecution’s characterization of S-21 as a key organ of the Standing Committee. Duch equated himself to mid-level cadre and said, “S-21 was not unique. It was like all the other security centers where torture was employed.” He then transitioned into a duress argument, saying that he only survived the Khmer Rouge regime because he “respectfully and strictly followed orders.” Duch also argued that he had acted as a cooperative and remorseful witness, a noticeably odd claim given that it was sandwiched between denials of guilt and requests for release. “I maintain remorse for the victims and ask for forgiveness…Finally, I return to my principle. I do not fit within the personal jurisdiction of the court.”
Posted by CambodiaTribunalMonitor at Wednesday, March 30, 2011
Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
CAMBODIA TRIBUNAL MONITOR International or Domestic Court?
March 29, 2011
International or Domestic Court?
By Charles Jackson, Candidate for Juris Doctorate, Northwestern University School of Law, Chicago, Illinois
International Co-Prosecutor Andrew Cayley takes questions from the judges
after requesting a life sentence for Duch
Courtesy ECCC
Day two of the Kaing Guek Eav (alias “Duch”) appeals before the Supreme Court Chamber centered around the prosecution’s appeal of the Trial Chamber’s judgment on grounds that the Trial Chamber incorrectly interpreted crimes against humanity and issued a manifestly insufficient sentence. Along with the change in topic from yesterday’s hearing came a noticeable shift in tone as co-prosecutor Andrew Cayley’s calm and methodical approach created a stark contrast with co-defense counsel Kar Savuth’s vocal and animated representation the day before.
Judge Agnieszka Klonowiecka-Milart began the proceedings by reading through the prosecution’s and defense’s appeals of the judgment. The prosecution was requesting a re-characterization of Duch’s conviction accompanied by a higher sentence. The defense was asking for a reduction.
Framing the specific legal arguments were differing thematic approaches taken by the prosecution and defense. On the one hand, Cayley began his oral arguments with a plea to the Supreme Court Chamber to recognize its position as an internationalized court, distinct from the domestic Cambodian judiciary. He asked the court to seize this important opportunity to foster the growth of a consistent body of international jurisprudence by looking to precedent from other tribunals. This foundation proved essential as each argument he made was supported with international case law. The defense, on the other hand, was quick to remind the Chamber throughout the day that the ECCC exists within the Cambodian judiciary and, as such, should be bound by domestic law.
Cumulative Convictions for Crimes Against Humanity
The first ground for appeal by the co-prosecutor related to the Trial Chamber’s decision to encompass all of the convictions for crimes against humanity, including murder, torture, rape, and forced labor, within the single crime of persecution. Expressing concern for national reconciliation and the historical record created by the ECCC, Cayley urged the Supreme Court Chamber to separate each offense into a distinct crime. Not doing so, he contended, would undermine the gravity of Duch’s actions and send the wrong message to future generations about what Duch did to his own people.
Cayley bolstered his policy argument with citations to case law from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). He argued that international jurisprudence provides for multiple criminal convictions for the same act so long as each offense has a material element that requires proof of a fact not required by the other offense(s). He explained how this was the case with Duch’s crimes, using a comparison of persecution and murder as an example. Murder requires proof that the accused caused the death of another person, while persecution does not. Persecution, on the other hand, requires a showing of discriminatory intent, while murder does not.
The defense declined to respond.
Rape as a Crime Against Humanity
Next, the co-prosecutor set forth his argument as to why the Trial Chamber incorrectly characterized rape as a form of torture instead of recognizing it as a separate crime against humanity. Cayley gave a lengthy history of rape as an offense recognized by civilized nations, beginning with the Lieber Code of 1863 from the American Civil War and including citations to the Hague Convention, the Geneva Conventions and the Control Council Law No. 10 of 1945. He contended that by 1945 rape had crystallized as a crime under customary international law and, therefore, it would not offend principles of legality to convict Duch for rape as an offense distinct from torture. He bolstered his argument with more references to the ICTY, ICTR, and the Special Court for Sierra Leone, which all have recognized rape as a crime against humanity.
The principle of legality, Cayley explained, does not require an offense to be domestically codified prior to the commission of the crime. Instead, legality is met so long as it was reasonably foreseeable to a perpetrator that his actions were criminal. Cayley then argued that the evidence and historical record clearly indicate Duch was aware that rape at S-21 was criminal.
Co-defense counsel Kang Ritheary led the defense’s response by reminding the court that it lacked personal jurisdiction over Duch. He then argued that Duch should not be found criminally liable for the act of rape that occurred at S-21 because he punished the actual perpetrator and took subsequent actions to prevent future acts of rape. Co-defense counsel Kar Savuth then made a brief statement. Lacking any legal basis, he asserted that rape at S-21 could not be charged as a crime against humanity because it only happened once and, therefore, could not be seen as widespread or systematic.
Enslavement and Forced Labor
Last, the co-prosecutor argued that the Trial Chamber erred by including forced labor within the definition of enslavement. Cayley argued that this error led the Trial Chamber not to convict Duch for numerous acts of enslavement at S-21. In its judgment of Case 1, the Trial Chamber convicted Duch of enslavement in relation to all of the detainees at S-24 (a labor site associated with S-21) and those detainees at S-21 who also were forced to work. Cayley urged the Supreme Court Chamber to re-characterize the Trial Chamber’s definition and convict Duch of enslavement of all S-21 detainees.
Co-defense counsel Ritheary gave a brief response in which he rejected the claim that enslavement and forced labor occurred. He said that detainees could “roam freely” and were treated equal to the Khmer Rouge cadres. “Even though [S-21 and S-24 victims] were detained they could go to work. Even cadres were under some restrictions.”
Sentencing Requests
The co-prosecutor argued that the Trial Chamber’s errors resulted in a sentence that was “manifestly insufficient” and requested the Supreme Court Chamber to increase it from 35 years to life imprisonment. However, the prosecution also recognized that due process violations for Duch’s time in illegal military detention justified a reduction of up to 5 years. Therefore, the OCP’s final recommendation was for Duch to serve 45 years with no possibility of parole.
The defense took a different view, urging the Supreme Court Chamber to find that the Trial Chamber gave insufficient weight to mitigating factors, including Duch’s cooperation and remorse. Co-defense counsel Ritheary also gave an impassioned description of Duch as a man who did everything he could to limit the harm of the actions he was forced to do under the threat of death. Ritheary challenged the judges to consider what they would have done had their lives been threatened by the Khmer Rouge and answered his own question by telling them, “You would be sitting where Duch is today.”
The defense requested that if the Supreme Court Chamber did not fully acquit Duch for lack of personal jurisdiction they should at least reduce his sentence to 15 years. Considering a sentence reduction for due process violations and time served, this would amount to his immediate release.
International or Domestic Court?
The prosecution’s heavy reliance on international law and defense counsel’s position that the ECCC is a domestic court culminated in a surprising and upsetting afternoon when both sides argued over whether or not the Cambodian Penal Code of 2009 (“2009 Penal Code”) should be considered by the Supreme Court Chamber when deciding an appropriate sentence for Duch. Article 95 of the 2009 Penal Code provides that if a life sentence is reduced for mitigating circumstances, the judge “may pronounce the penalty of imprisonment of between 15 and 30 years.” However, Article 668 of the 2009 Penal Code states that the code is not binding where it conflicts with other “special criminal legislation.”
The defense contended that the ECCC, as a domestic court, is bound to apply Article 95 and that it should be interpreted as providing a 30-year ceiling on the potential sentence that could be imposed due to the mitigating circumstances in Duch’s case. Although drafted after the formation of the ECCC, defense argued that proper statutory construction requires that an accused person receive the benefits of criminal legislation enacted subsequent to the commission of their crimes.
The prosecution, on the other hand, argued that the ECCC Law constitutes ‘special criminal legislation’ and, therefore, the ECCC is not bound by the 2009 Penal Code. Instead, the ECCC is bound by Article 39 of the ECCC Law, which grants the judges broad discretion to impose a sentence of five years to life imprisonment.
Judge Klonowiecka-Milart made the audience noticeably uneasy when she flatly rejected the prosecution’s characterization of the ECCC as sui generis and unbound by substantive domestic law. She also expressed doubt that there was any conflict between Article 95 of the 2009 Penal Code and Article 39 of the ECCC Law, indicating a belief that Article 668 of the 2009 Penal Code may be inapplicable. She then asked the prosecution how the court, as a domestic institution, would fail to serve the interests of the Cambodian people by taking into account the 2009 Penal Code, which is a Cambodian law. The proseution reiterated their belief that the court was sui generis and, even if it was seen as a domestic court, fell under the Article 668 exemption. Judge Klonowiecka-Milart seemed unconvinced. One audience member, keenly aware of the impact this could have on Duch’s sentence, left the visitor’s gallery in tears.
Posted by CambodiaTribunalMonitor at Tuesday, March 29, 2011
Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
International or Domestic Court?
By Charles Jackson, Candidate for Juris Doctorate, Northwestern University School of Law, Chicago, Illinois
International Co-Prosecutor Andrew Cayley takes questions from the judges
after requesting a life sentence for Duch
Courtesy ECCC
Day two of the Kaing Guek Eav (alias “Duch”) appeals before the Supreme Court Chamber centered around the prosecution’s appeal of the Trial Chamber’s judgment on grounds that the Trial Chamber incorrectly interpreted crimes against humanity and issued a manifestly insufficient sentence. Along with the change in topic from yesterday’s hearing came a noticeable shift in tone as co-prosecutor Andrew Cayley’s calm and methodical approach created a stark contrast with co-defense counsel Kar Savuth’s vocal and animated representation the day before.
Judge Agnieszka Klonowiecka-Milart began the proceedings by reading through the prosecution’s and defense’s appeals of the judgment. The prosecution was requesting a re-characterization of Duch’s conviction accompanied by a higher sentence. The defense was asking for a reduction.
Framing the specific legal arguments were differing thematic approaches taken by the prosecution and defense. On the one hand, Cayley began his oral arguments with a plea to the Supreme Court Chamber to recognize its position as an internationalized court, distinct from the domestic Cambodian judiciary. He asked the court to seize this important opportunity to foster the growth of a consistent body of international jurisprudence by looking to precedent from other tribunals. This foundation proved essential as each argument he made was supported with international case law. The defense, on the other hand, was quick to remind the Chamber throughout the day that the ECCC exists within the Cambodian judiciary and, as such, should be bound by domestic law.
Cumulative Convictions for Crimes Against Humanity
The first ground for appeal by the co-prosecutor related to the Trial Chamber’s decision to encompass all of the convictions for crimes against humanity, including murder, torture, rape, and forced labor, within the single crime of persecution. Expressing concern for national reconciliation and the historical record created by the ECCC, Cayley urged the Supreme Court Chamber to separate each offense into a distinct crime. Not doing so, he contended, would undermine the gravity of Duch’s actions and send the wrong message to future generations about what Duch did to his own people.
Cayley bolstered his policy argument with citations to case law from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). He argued that international jurisprudence provides for multiple criminal convictions for the same act so long as each offense has a material element that requires proof of a fact not required by the other offense(s). He explained how this was the case with Duch’s crimes, using a comparison of persecution and murder as an example. Murder requires proof that the accused caused the death of another person, while persecution does not. Persecution, on the other hand, requires a showing of discriminatory intent, while murder does not.
The defense declined to respond.
Rape as a Crime Against Humanity
Next, the co-prosecutor set forth his argument as to why the Trial Chamber incorrectly characterized rape as a form of torture instead of recognizing it as a separate crime against humanity. Cayley gave a lengthy history of rape as an offense recognized by civilized nations, beginning with the Lieber Code of 1863 from the American Civil War and including citations to the Hague Convention, the Geneva Conventions and the Control Council Law No. 10 of 1945. He contended that by 1945 rape had crystallized as a crime under customary international law and, therefore, it would not offend principles of legality to convict Duch for rape as an offense distinct from torture. He bolstered his argument with more references to the ICTY, ICTR, and the Special Court for Sierra Leone, which all have recognized rape as a crime against humanity.
The principle of legality, Cayley explained, does not require an offense to be domestically codified prior to the commission of the crime. Instead, legality is met so long as it was reasonably foreseeable to a perpetrator that his actions were criminal. Cayley then argued that the evidence and historical record clearly indicate Duch was aware that rape at S-21 was criminal.
Co-defense counsel Kang Ritheary led the defense’s response by reminding the court that it lacked personal jurisdiction over Duch. He then argued that Duch should not be found criminally liable for the act of rape that occurred at S-21 because he punished the actual perpetrator and took subsequent actions to prevent future acts of rape. Co-defense counsel Kar Savuth then made a brief statement. Lacking any legal basis, he asserted that rape at S-21 could not be charged as a crime against humanity because it only happened once and, therefore, could not be seen as widespread or systematic.
Enslavement and Forced Labor
Last, the co-prosecutor argued that the Trial Chamber erred by including forced labor within the definition of enslavement. Cayley argued that this error led the Trial Chamber not to convict Duch for numerous acts of enslavement at S-21. In its judgment of Case 1, the Trial Chamber convicted Duch of enslavement in relation to all of the detainees at S-24 (a labor site associated with S-21) and those detainees at S-21 who also were forced to work. Cayley urged the Supreme Court Chamber to re-characterize the Trial Chamber’s definition and convict Duch of enslavement of all S-21 detainees.
Co-defense counsel Ritheary gave a brief response in which he rejected the claim that enslavement and forced labor occurred. He said that detainees could “roam freely” and were treated equal to the Khmer Rouge cadres. “Even though [S-21 and S-24 victims] were detained they could go to work. Even cadres were under some restrictions.”
Sentencing Requests
The co-prosecutor argued that the Trial Chamber’s errors resulted in a sentence that was “manifestly insufficient” and requested the Supreme Court Chamber to increase it from 35 years to life imprisonment. However, the prosecution also recognized that due process violations for Duch’s time in illegal military detention justified a reduction of up to 5 years. Therefore, the OCP’s final recommendation was for Duch to serve 45 years with no possibility of parole.
The defense took a different view, urging the Supreme Court Chamber to find that the Trial Chamber gave insufficient weight to mitigating factors, including Duch’s cooperation and remorse. Co-defense counsel Ritheary also gave an impassioned description of Duch as a man who did everything he could to limit the harm of the actions he was forced to do under the threat of death. Ritheary challenged the judges to consider what they would have done had their lives been threatened by the Khmer Rouge and answered his own question by telling them, “You would be sitting where Duch is today.”
The defense requested that if the Supreme Court Chamber did not fully acquit Duch for lack of personal jurisdiction they should at least reduce his sentence to 15 years. Considering a sentence reduction for due process violations and time served, this would amount to his immediate release.
International or Domestic Court?
The prosecution’s heavy reliance on international law and defense counsel’s position that the ECCC is a domestic court culminated in a surprising and upsetting afternoon when both sides argued over whether or not the Cambodian Penal Code of 2009 (“2009 Penal Code”) should be considered by the Supreme Court Chamber when deciding an appropriate sentence for Duch. Article 95 of the 2009 Penal Code provides that if a life sentence is reduced for mitigating circumstances, the judge “may pronounce the penalty of imprisonment of between 15 and 30 years.” However, Article 668 of the 2009 Penal Code states that the code is not binding where it conflicts with other “special criminal legislation.”
The defense contended that the ECCC, as a domestic court, is bound to apply Article 95 and that it should be interpreted as providing a 30-year ceiling on the potential sentence that could be imposed due to the mitigating circumstances in Duch’s case. Although drafted after the formation of the ECCC, defense argued that proper statutory construction requires that an accused person receive the benefits of criminal legislation enacted subsequent to the commission of their crimes.
The prosecution, on the other hand, argued that the ECCC Law constitutes ‘special criminal legislation’ and, therefore, the ECCC is not bound by the 2009 Penal Code. Instead, the ECCC is bound by Article 39 of the ECCC Law, which grants the judges broad discretion to impose a sentence of five years to life imprisonment.
Judge Klonowiecka-Milart made the audience noticeably uneasy when she flatly rejected the prosecution’s characterization of the ECCC as sui generis and unbound by substantive domestic law. She also expressed doubt that there was any conflict between Article 95 of the 2009 Penal Code and Article 39 of the ECCC Law, indicating a belief that Article 668 of the 2009 Penal Code may be inapplicable. She then asked the prosecution how the court, as a domestic institution, would fail to serve the interests of the Cambodian people by taking into account the 2009 Penal Code, which is a Cambodian law. The proseution reiterated their belief that the court was sui generis and, even if it was seen as a domestic court, fell under the Article 668 exemption. Judge Klonowiecka-Milart seemed unconvinced. One audience member, keenly aware of the impact this could have on Duch’s sentence, left the visitor’s gallery in tears.
Posted by CambodiaTribunalMonitor at Tuesday, March 29, 2011
Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
BREAKING THE SILENCE RETURN 30 March 2011
On 26 July 2010, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered the judgment in its first case, sentencing Kaing Guek Eav alias Duch, the chairman of the Khmer Rouge's S-21 prison, to 35 years in prison. With deductions for his cooperation with the Court, earlier illegal detention and time served, Duch currently has less than 18 years left to serve in prison. Of 90 victims participating as civil parties in the proceedings, 24 were not accorded that status in the judgment. All parties to the case have appealed. From March 28-31, the ECCC Supreme Court Chamber is hearing appeals against the Trial Chamber judgment. The Documentation Center of Cambodia (DC-Cam) has prepared a number of activities to facilitate the participation of civil parties and survivors.
On the evening of 30 March 2011 at 7 .pm., all civil parties and community representatives will have an opportunity to see a theater performance entitled "Breaking the Silence," produced by Amrita Performing Arts and directed by Annemarie Prins. The performance will be staged in Wat Tikha Panhao in Tikha Panhao village, Samraong Kraom commune, Khan Dangkao, Phnom Penh (see map below). “Breaking the Silence” encourages survivors to share their experiences from the Khmer Rouge regime with their family members and fellow survivors. The performance will be open to the public, free of charge.
You can contact DC-Cam for more information about performance times and locations. It is not too far away from the ECCC compound.
Savina Sirik Sayana Ser Terith Chy
012688046 092763272 012795353
“Breaking the Silence” Confronts Cambodia’s Past Artistically
Dacil Q. Keo
Art can be a powerful tool to help victims to cope with seemingly irreconcilable pain and trauma, especially when other means are unavailable. In Cambodia where millions experienced four years of brutality and subhuman conditions under the Khmer Rouge regime from 1975-1979, there are less than 30 psychiatrists in the country. Victims have lived knowing, in some cases nearby, their perpetrators for over two decades. Legal justice, with all its necessary and unnecessary complications, finally emerged in the form of the Khmer Rouge tribunal only recently. Its mission is to prosecute less than ten senior leaders, but what mechanisms will address the thousands of perpetrators who actually committed the atrocities and the victims who know their faces? Play director Annemarie Prins believes that art may be part of the answer. She hopes that her play, “Breaking the Silence,” will help foster an “open dialogue as part of the process of reconciliation” in Cambodia.
Prins’ entry into such plays began four years ago at the Royal University of Fine Arts where she lectured at a workshop. She exposed and intrigued the participants there to western contemporary theatre. During the course of the two week workshop, several participants opened up to Prins about what they had suffered during the genocide. These stories became the basis for Prins’ first play called, “3 Years, 8 Months, and 20 Days,” a title referring to the exact number of days in which the Khmer Rouge regime was in power. Her second play, produced by Amrita Performing Arts, expands upon the themes and issues addressed in the first, incorporating its survival stories with the added complexities of present-day coping measures.
“Breaking the Silence” is a play of seven stories of troubled relationships between survivors- both victims and perpetrators, of the Khmer Rouge regime. It is a humble yet compelling endeavor created to break the silence surrounding Cambodia’s traumatic past, hence the play’s name. The stories are acted by four female teachers from the Royal University of Fine Arts who will play both male and female roles. With teachers performing, Prins believes, the opportunity for Cambodian drama students to learn is even greater because the teachers will be able to incorporate their performance experiences into their instruction.
The issues addressed in the play are raw and sincere, supported with heartbreaking song, poetry, and dance. In one story, a former Khmer Rouge cadre grapples with guilt and seeks forgiveness from his mother, whom he meets on Saturdays at the market but does not talk to. When they finally exchange words, the mother responds, “It will never be the same, it will never be the same, my son.” Another story involves two former child soldiers who cope differently with their past. One is full of remorse and travels to a prison site where killing and torture took place, to ask for forgiveness. The other, still defending his actions during the day, succumbs to nightmares when he sleeps. A third story centers around a man who came close to avenging the death of his father and at present is caught between Buddhist teachings of karma and personal anguish. The other four stories illustrate similar conflicting emotions between survivors and within survivors; individual coping measures vary among the individuals. All stories share the theme of silence, in the form of denial, empty communication, or the inability to speak. This theme of silence is ubiquitous and loud, and certain to reflect the sentiments and thoughts of the audience.
Prins’ “Breaking the Silence” hopes to reach a wider audience than her first play and there are plans for a nationwide tour. With support from the Royal Embassy of the Netherlands and several organizations, including the Documentation Center of Cambodia (DC-Cam) which provided research and will bring the production to various provinces as part of its outreach activities, this play has the potential make a significant contribution to Cambodia’s healing process. When silence dominates survivors and the legal system is unreliable, plays such as Prins’ may hold one of the keys to unlocking Cambodia’s traumatized national psyche and in the process, gradually heal it. Localized mechanisms of dealing with trauma must resonate with the locals and in that regard plays may become an instrumental tool in Cambodia. DC-Cam Director Youk Chhang believes that Prins’ play will “communicate well with the hearts of the villagers” and that such plays are necessary because they help us “to recognize the beauty in the darkness and treasure it.” While some might not agree that there is always beauty in darkness, all can agree that darkness is a part of many of our lives and that beauty can exist in the ways in which honest reflections of darkness are artistically expressed. As the country struggles to overcome its darkness, plays such as Prins’ offers renewed hope in the resilience and strength of Cambodians.
A Dissertation on Breaking the Silence: Collective Memory
http://www.dccam.org/Projects/Radio/pdf/Collective_Memory_in_Cambodia.pdf
Scripts:
http://www.dccam.org/Projects/Radio/pdf/DCCAM_BREAKING_THE_SILENCE_%20FINAL.pdf
Some photos:
http://www.dccam.org/Projects/Radio/Drama_Images/index.htm
Breaking the Silence on Voice of America
http://www.voanews.com/khmer-english/news/special-reports/entertainment/Breaking-the-Silence--A-New-Cambodian-Play-91838704.html
* Please follow the map below to get to Wat Tikha Panhao:
“...a society cannot know itself if it does not have an accurate memory of its own history.”
On the evening of 30 March 2011 at 7 .pm., all civil parties and community representatives will have an opportunity to see a theater performance entitled "Breaking the Silence," produced by Amrita Performing Arts and directed by Annemarie Prins. The performance will be staged in Wat Tikha Panhao in Tikha Panhao village, Samraong Kraom commune, Khan Dangkao, Phnom Penh (see map below). “Breaking the Silence” encourages survivors to share their experiences from the Khmer Rouge regime with their family members and fellow survivors. The performance will be open to the public, free of charge.
You can contact DC-Cam for more information about performance times and locations. It is not too far away from the ECCC compound.
Savina Sirik Sayana Ser Terith Chy
012688046 092763272 012795353
“Breaking the Silence” Confronts Cambodia’s Past Artistically
Dacil Q. Keo
Art can be a powerful tool to help victims to cope with seemingly irreconcilable pain and trauma, especially when other means are unavailable. In Cambodia where millions experienced four years of brutality and subhuman conditions under the Khmer Rouge regime from 1975-1979, there are less than 30 psychiatrists in the country. Victims have lived knowing, in some cases nearby, their perpetrators for over two decades. Legal justice, with all its necessary and unnecessary complications, finally emerged in the form of the Khmer Rouge tribunal only recently. Its mission is to prosecute less than ten senior leaders, but what mechanisms will address the thousands of perpetrators who actually committed the atrocities and the victims who know their faces? Play director Annemarie Prins believes that art may be part of the answer. She hopes that her play, “Breaking the Silence,” will help foster an “open dialogue as part of the process of reconciliation” in Cambodia.
Prins’ entry into such plays began four years ago at the Royal University of Fine Arts where she lectured at a workshop. She exposed and intrigued the participants there to western contemporary theatre. During the course of the two week workshop, several participants opened up to Prins about what they had suffered during the genocide. These stories became the basis for Prins’ first play called, “3 Years, 8 Months, and 20 Days,” a title referring to the exact number of days in which the Khmer Rouge regime was in power. Her second play, produced by Amrita Performing Arts, expands upon the themes and issues addressed in the first, incorporating its survival stories with the added complexities of present-day coping measures.
“Breaking the Silence” is a play of seven stories of troubled relationships between survivors- both victims and perpetrators, of the Khmer Rouge regime. It is a humble yet compelling endeavor created to break the silence surrounding Cambodia’s traumatic past, hence the play’s name. The stories are acted by four female teachers from the Royal University of Fine Arts who will play both male and female roles. With teachers performing, Prins believes, the opportunity for Cambodian drama students to learn is even greater because the teachers will be able to incorporate their performance experiences into their instruction.
The issues addressed in the play are raw and sincere, supported with heartbreaking song, poetry, and dance. In one story, a former Khmer Rouge cadre grapples with guilt and seeks forgiveness from his mother, whom he meets on Saturdays at the market but does not talk to. When they finally exchange words, the mother responds, “It will never be the same, it will never be the same, my son.” Another story involves two former child soldiers who cope differently with their past. One is full of remorse and travels to a prison site where killing and torture took place, to ask for forgiveness. The other, still defending his actions during the day, succumbs to nightmares when he sleeps. A third story centers around a man who came close to avenging the death of his father and at present is caught between Buddhist teachings of karma and personal anguish. The other four stories illustrate similar conflicting emotions between survivors and within survivors; individual coping measures vary among the individuals. All stories share the theme of silence, in the form of denial, empty communication, or the inability to speak. This theme of silence is ubiquitous and loud, and certain to reflect the sentiments and thoughts of the audience.
Prins’ “Breaking the Silence” hopes to reach a wider audience than her first play and there are plans for a nationwide tour. With support from the Royal Embassy of the Netherlands and several organizations, including the Documentation Center of Cambodia (DC-Cam) which provided research and will bring the production to various provinces as part of its outreach activities, this play has the potential make a significant contribution to Cambodia’s healing process. When silence dominates survivors and the legal system is unreliable, plays such as Prins’ may hold one of the keys to unlocking Cambodia’s traumatized national psyche and in the process, gradually heal it. Localized mechanisms of dealing with trauma must resonate with the locals and in that regard plays may become an instrumental tool in Cambodia. DC-Cam Director Youk Chhang believes that Prins’ play will “communicate well with the hearts of the villagers” and that such plays are necessary because they help us “to recognize the beauty in the darkness and treasure it.” While some might not agree that there is always beauty in darkness, all can agree that darkness is a part of many of our lives and that beauty can exist in the ways in which honest reflections of darkness are artistically expressed. As the country struggles to overcome its darkness, plays such as Prins’ offers renewed hope in the resilience and strength of Cambodians.
A Dissertation on Breaking the Silence: Collective Memory
http://www.dccam.org/Projects/Radio/pdf/Collective_Memory_in_Cambodia.pdf
Scripts:
http://www.dccam.org/Projects/Radio/pdf/DCCAM_BREAKING_THE_SILENCE_%20FINAL.pdf
Some photos:
http://www.dccam.org/Projects/Radio/Drama_Images/index.htm
Breaking the Silence on Voice of America
http://www.voanews.com/khmer-english/news/special-reports/entertainment/Breaking-the-Silence--A-New-Cambodian-Play-91838704.html
* Please follow the map below to get to Wat Tikha Panhao:
“...a society cannot know itself if it does not have an accurate memory of its own history.”
CAMBODIA TRIBUNAL MONITOR: DUCH WAS JUST TOOL
March 28, 2011
"Duch Was Just a Tool"
By Charles Jackson, Candidate for Juris Doctorate, Northwestern University School of Law, Chicago, Illinois
Duch stares intently as Supreme Court Chamber considers his request for acquittal
Courtesy ECCC
There was an almost nervous energy in the audience today as the visitor’s gallery at the ECCC filled with Cambodian onlookers for the first day of the Kaing Guek Eav (alias “Duch”) appeals before the Supreme Court Chamber.
Proceedings began with a summary reading of the Trial Chamber’s judgment by President of the Supreme Court Chamber, Kong Srim, including the crimes Duch was convicted of, the 35-year sentence issued, and the due process violation that reduced it by five years. He then summarized the procedural setting for the hearing and passed the floor over to defense to put their case forward as to why the Trial Chamber judgment should be invalidated and Duch released.
Duch spoke first, but only to state his belief that the Trial Chamber erred in finding personal jurisdiction over him and that his lawyers have authority to represent him before the Supreme Court Chamber.
Duch’s Appeal
Kar Savuth, the Cambodian co-defense counsel for Duch, led the defense team’s oral argument. For about an hour and fifteen minutes Savuth seemed to take a buckshot approach, jumping from one argument to the next in hopes that something would stick. There was also a strong focus on rhetoric as Savuth analogized the ECCC to Thai border incursions and Duch to pilots dropping bombs on Cambodia at the order of former U.S. President Richard Nixon. The former was used to highlight his point that the court had illegally extended its jurisdictional mandate beyond senior leaders and those most responsible for the crimes of the Khmer Rouge regime. The latter was used to illustrate his assertion that Duch was only following superior orders and, therefore, should not be held criminally responsible.
Stringing together the various points, the defense counsel’s key arguments were that 1) the Trial Chamber erred in its interpretation of Article 2 of the ECCC Law and Article 2 of the UN/Cambodia Agreement, which grants the court jurisdiction over “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes” of that regime, and 2) the Trial Chamber erroneously ignored Internal Rule 87 when determining that the defense’s jurisdictional challenge was inadmissible under Internal Rule 89.
Personal Jurisdiction
Savuth spent the majority of his time hammering the point that Duch was not a senior leader of Democratic Kampuchea and, therefore, was not one of the individuals most responsible for the crimes of that regime. He began by reminding the court that the purpose of the ECCC according to the UN/Cambodia Agreement is to bring peace and reconciliation to the people of Cambodia while respecting the sovereignty of the Royal Government of Cambodia. To do this, he argued, the court must respect the RGC’s intent to allow only the prosecution of the senior leaders of the Khmer Rouge and that senior leaders were only those few individuals who had the power to render orders and give commands on behalf of the Khmer Rouge regime. “Duch was head of a prison” he said, “so how could he be most responsible or a senior leader?” Duch was just a “puppet.”
Savuth argued that, because Duch was not a member of the Standing Committee, he could not be seen as a senior leader most responsible for crimes within the ECCC’s jurisdiction. His argument implied a conjunctive reading of Article 2 of the Law and Article 2 of the UN/Cambodia Agreement whereby, according to him, only senior leaders could be characterized as those most responsible. However, it wasn’t until Judge Chandra Nihal Jayasinghe asked whether this was the defense counsel’s argument that the other co-defense counsel for Duch, Kang Ritheary, confirmed it to be defense’s argument.
Once having established his assertion that only senior leaders could be prosecuted before the ECCC, Savuth questioned how Duch could be characterized as such. He quoted Judge Cartwright as having said that the Communist Party of Kampuchea made all the decisions related to who was to be detained in security centers and who was to be ‘smashed’. He also pointed to documents that showed Duch was not a member of the Standing Committee. He reasserted numerous times that Duch was a low-level secretary with no real authority; that the real blame lie with Pol Pot, Son Sen and Nuon Chea. “Duch was just a tool.”
Finally, Savuth spent time pointing out that there were 195 security centers under the DK regime, each with its own leader, yet Duch was the only one being tried. Possibly hinting at selective prosecution, he asked, “Was killing at other prisons not willful? Were detainees detained legally? Was there not torture? Were people kept in a hotel or something?”
After offering an apology to the victims and informing the audience that he, too, had lost family members to the crimes of the Khmer Rouge, Ritheary followed up Savuth’s jurisdictional argument with many of the same points. He asserted that the Trial Chamber’s finding that Duch fell within its personal jurisdiction amounted to an expansion of its legislative mandate in violation of civil law theory. “Perpetrators don’t fall within the court’s jurisdiction. Only instigators,” he said.
Internal Rule 89 - Preliminary Objections
The second argument of Duch’s defense counsel centered around the question of whether jurisdictional arguments must be made as preliminary objections in order to be preserved for appeal under Internal Rule 89 or whether they could be made anytime during trial if new evidence was admitted under Internal Rule 87. However, the oral arguments failed to clearly illuminate their point and, instead, the defense counsel spent their time levying accusations that the Co-Investigating Judges, the Co-Prosecutors, and the Trial Chamber failed to consider exculpatory evidence that showed Duch was not a senior leader or among those most responsible for crimes of the DK regime.
Defense counsel also briefly argued that Duch’s detention should be viewed as “witness protection” because the detention was illegal and because Duch had offered substantial cooperation to the court, giving evidence about the Standing Committee’s structure and the role of S-21 within Democratic Kampuchea. The point of this argument was noticeably unclear and led to follow-up questions from the judges that received equally vague answers.
The Prosecution’s Response
Co-Prosecutor Chea Leang presented the prosecution’s response to Duch’s appeal and focused mainly on the impact Duch had on Khmer Rouge decision-making and the unique role of S-21. She pointed to evidence that Duch reported directly to the Standing Committee and that his annotations on detainee statements clearly showed his power to decide which prisoners would be ‘smashed.’ She also pointed out that Duch, unlike other security center leaders, had the power to arrest, detain and kill high-ranking Khmer Rouge cadre throughout Cambodia. In this way she argued S-21 was a key organ of the Khmer Rouge regime and that Duch, as its head, was fairly characterized as among those “most responsible.” Therefore, she asserted the Trial Chamber correctly held it had jurisdiction to prosecute Duch.
When asked by the judges whether “most responsible” and “senior leaders” should be read conjunctively, as defense asserted, Co-Prosecutor Andew Cayley rose momentarily and directed the court to evidence that the UN Committee of Experts and the Cambodian National Assembly, when considering the ECCC’s jurisdictional mandate prior to the court’s creation, both intended the statement to be read disjunctively.
Prosecutorial Discretion
Although listed on the court’s schedule as the key issue for today’s hearing, the question of whether Article 2 of the Law and Article 2 of the UN/Cambodia Agreement were subject to judicial review received little attention. After both the defense and the prosecution had made their arguments, Judge Motoo Noguchi put the question to the prosecution, asking them whether the phrase ‘senior leaders and those most responsible’ was intended as a guide to be used by the Co-Prosecutors when exercising prosecutorial discretion and, as such, not subject to review or whether it was a jurisdictional requirement that was subject to judicial review. The prosecution responded that it was the former, but failed to give a legal basis for their opinion. The defense counsel did not directly address the issue, although their jurisdictional argument and request for acquittal implied a belief that it was subject to review.
Civil Party Statement
The day finished with a 30-minute statement by Martine Jacquin, co-counsel for Civil Party Group 3. Although well organized and eloquent, the statement did little more than summarize Duch’s argument and reemphasize points made by the prosecution. Defense counsel had a brief final word and said that civil parties should only address the harm committed to victims and the appropriate reparations that the court should grant them.
Posted by CambodiaTribunalMonitor at Monday, March 28, 2011
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
"Duch Was Just a Tool"
By Charles Jackson, Candidate for Juris Doctorate, Northwestern University School of Law, Chicago, Illinois
Duch stares intently as Supreme Court Chamber considers his request for acquittal
Courtesy ECCC
There was an almost nervous energy in the audience today as the visitor’s gallery at the ECCC filled with Cambodian onlookers for the first day of the Kaing Guek Eav (alias “Duch”) appeals before the Supreme Court Chamber.
Proceedings began with a summary reading of the Trial Chamber’s judgment by President of the Supreme Court Chamber, Kong Srim, including the crimes Duch was convicted of, the 35-year sentence issued, and the due process violation that reduced it by five years. He then summarized the procedural setting for the hearing and passed the floor over to defense to put their case forward as to why the Trial Chamber judgment should be invalidated and Duch released.
Duch spoke first, but only to state his belief that the Trial Chamber erred in finding personal jurisdiction over him and that his lawyers have authority to represent him before the Supreme Court Chamber.
Duch’s Appeal
Kar Savuth, the Cambodian co-defense counsel for Duch, led the defense team’s oral argument. For about an hour and fifteen minutes Savuth seemed to take a buckshot approach, jumping from one argument to the next in hopes that something would stick. There was also a strong focus on rhetoric as Savuth analogized the ECCC to Thai border incursions and Duch to pilots dropping bombs on Cambodia at the order of former U.S. President Richard Nixon. The former was used to highlight his point that the court had illegally extended its jurisdictional mandate beyond senior leaders and those most responsible for the crimes of the Khmer Rouge regime. The latter was used to illustrate his assertion that Duch was only following superior orders and, therefore, should not be held criminally responsible.
Stringing together the various points, the defense counsel’s key arguments were that 1) the Trial Chamber erred in its interpretation of Article 2 of the ECCC Law and Article 2 of the UN/Cambodia Agreement, which grants the court jurisdiction over “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes” of that regime, and 2) the Trial Chamber erroneously ignored Internal Rule 87 when determining that the defense’s jurisdictional challenge was inadmissible under Internal Rule 89.
Personal Jurisdiction
Savuth spent the majority of his time hammering the point that Duch was not a senior leader of Democratic Kampuchea and, therefore, was not one of the individuals most responsible for the crimes of that regime. He began by reminding the court that the purpose of the ECCC according to the UN/Cambodia Agreement is to bring peace and reconciliation to the people of Cambodia while respecting the sovereignty of the Royal Government of Cambodia. To do this, he argued, the court must respect the RGC’s intent to allow only the prosecution of the senior leaders of the Khmer Rouge and that senior leaders were only those few individuals who had the power to render orders and give commands on behalf of the Khmer Rouge regime. “Duch was head of a prison” he said, “so how could he be most responsible or a senior leader?” Duch was just a “puppet.”
Savuth argued that, because Duch was not a member of the Standing Committee, he could not be seen as a senior leader most responsible for crimes within the ECCC’s jurisdiction. His argument implied a conjunctive reading of Article 2 of the Law and Article 2 of the UN/Cambodia Agreement whereby, according to him, only senior leaders could be characterized as those most responsible. However, it wasn’t until Judge Chandra Nihal Jayasinghe asked whether this was the defense counsel’s argument that the other co-defense counsel for Duch, Kang Ritheary, confirmed it to be defense’s argument.
Once having established his assertion that only senior leaders could be prosecuted before the ECCC, Savuth questioned how Duch could be characterized as such. He quoted Judge Cartwright as having said that the Communist Party of Kampuchea made all the decisions related to who was to be detained in security centers and who was to be ‘smashed’. He also pointed to documents that showed Duch was not a member of the Standing Committee. He reasserted numerous times that Duch was a low-level secretary with no real authority; that the real blame lie with Pol Pot, Son Sen and Nuon Chea. “Duch was just a tool.”
Finally, Savuth spent time pointing out that there were 195 security centers under the DK regime, each with its own leader, yet Duch was the only one being tried. Possibly hinting at selective prosecution, he asked, “Was killing at other prisons not willful? Were detainees detained legally? Was there not torture? Were people kept in a hotel or something?”
After offering an apology to the victims and informing the audience that he, too, had lost family members to the crimes of the Khmer Rouge, Ritheary followed up Savuth’s jurisdictional argument with many of the same points. He asserted that the Trial Chamber’s finding that Duch fell within its personal jurisdiction amounted to an expansion of its legislative mandate in violation of civil law theory. “Perpetrators don’t fall within the court’s jurisdiction. Only instigators,” he said.
Internal Rule 89 - Preliminary Objections
The second argument of Duch’s defense counsel centered around the question of whether jurisdictional arguments must be made as preliminary objections in order to be preserved for appeal under Internal Rule 89 or whether they could be made anytime during trial if new evidence was admitted under Internal Rule 87. However, the oral arguments failed to clearly illuminate their point and, instead, the defense counsel spent their time levying accusations that the Co-Investigating Judges, the Co-Prosecutors, and the Trial Chamber failed to consider exculpatory evidence that showed Duch was not a senior leader or among those most responsible for crimes of the DK regime.
Defense counsel also briefly argued that Duch’s detention should be viewed as “witness protection” because the detention was illegal and because Duch had offered substantial cooperation to the court, giving evidence about the Standing Committee’s structure and the role of S-21 within Democratic Kampuchea. The point of this argument was noticeably unclear and led to follow-up questions from the judges that received equally vague answers.
The Prosecution’s Response
Co-Prosecutor Chea Leang presented the prosecution’s response to Duch’s appeal and focused mainly on the impact Duch had on Khmer Rouge decision-making and the unique role of S-21. She pointed to evidence that Duch reported directly to the Standing Committee and that his annotations on detainee statements clearly showed his power to decide which prisoners would be ‘smashed.’ She also pointed out that Duch, unlike other security center leaders, had the power to arrest, detain and kill high-ranking Khmer Rouge cadre throughout Cambodia. In this way she argued S-21 was a key organ of the Khmer Rouge regime and that Duch, as its head, was fairly characterized as among those “most responsible.” Therefore, she asserted the Trial Chamber correctly held it had jurisdiction to prosecute Duch.
When asked by the judges whether “most responsible” and “senior leaders” should be read conjunctively, as defense asserted, Co-Prosecutor Andew Cayley rose momentarily and directed the court to evidence that the UN Committee of Experts and the Cambodian National Assembly, when considering the ECCC’s jurisdictional mandate prior to the court’s creation, both intended the statement to be read disjunctively.
Prosecutorial Discretion
Although listed on the court’s schedule as the key issue for today’s hearing, the question of whether Article 2 of the Law and Article 2 of the UN/Cambodia Agreement were subject to judicial review received little attention. After both the defense and the prosecution had made their arguments, Judge Motoo Noguchi put the question to the prosecution, asking them whether the phrase ‘senior leaders and those most responsible’ was intended as a guide to be used by the Co-Prosecutors when exercising prosecutorial discretion and, as such, not subject to review or whether it was a jurisdictional requirement that was subject to judicial review. The prosecution responded that it was the former, but failed to give a legal basis for their opinion. The defense counsel did not directly address the issue, although their jurisdictional argument and request for acquittal implied a belief that it was subject to review.
Civil Party Statement
The day finished with a 30-minute statement by Martine Jacquin, co-counsel for Civil Party Group 3. Although well organized and eloquent, the statement did little more than summarize Duch’s argument and reemphasize points made by the prosecution. Defense counsel had a brief final word and said that civil parties should only address the harm committed to victims and the appropriate reparations that the court should grant them.
Posted by CambodiaTribunalMonitor at Monday, March 28, 2011
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
AT THE KHMER ROUGE TRIBUNAL TODAY
PHOTOS: http://dccam.org/Projects/Living_Doc/Photos/2011/Duch_Appeal_at_the_ECCC_March_28_2011/index.html
----------
NEWS:
http://www.bbc.co.uk/news/world-asia-pacific-12877629
British Broadcasting CorporationHome
28 March 2011 Last updated at 08:03 GMT
Khmer Rouge jailer Duch appeals against convictionBy
Guy De Launey
BBC News, Phnom Penh
A UN-backed tribunal in Cambodia is hearing the appeal of a former Khmer Rouge member who was convicted of crimes against humanity.
Kaing Guek Eav was in charge of a detention centre in the late 1970s and oversaw the deaths of around 15,000 people.
But now the man best known as Comrade Duch is arguing he should not have been tried at all.
The Khmer Rouge tribunal has a strictly defined role.
That is to bring to justice the surviving senior leaders of the Khmer Rouge and the people most responsible for the worst crimes committed during the four years Pol Pot's government controlled Cambodia.
Comrade Duch claims he falls into neither category.
Baffling
He has admitted that he ran the notorious S-21 detention centre in Phnom Penh.
During the public phase of his trial he even apologised to relatives of the people who died there.
But he insisted that he was only following orders and that he and his family might have been killed if he had not done as he was told.
The trial chamber rejected his arguments and passed a sentence of 35 years for crimes against humanity, torture and pre-meditated murder.
Youk Chhang is the director of the Documentation Centre which investigated the events at S-21.
He says Cambodians would be baffled by Duch's appeal.
"It's difficult for the public in general to understand the court procedure - they're not lawyers," he said.
"And it's because Duch himself has said all these things during the hearing already: 'Well, I admit it; now I don't'. And then people find that crazy."
The appeal hearing should be followed within months by the long-awaited second trial at the tribunal.
Four senior surviving Khmer Rouge leaders are facing charges of genocide for creating the policies which led to the deaths of around 2m people.
BBC © MMXI The BBC is not responsible for the content of external sites.
------------
http://www.chron.com/disp/story.mpl/ap/world/7493935.html
Ex-Khmer Rouge prison chief appeals sentence
By MIKE ECKEL Associated Press © 2011 The Associated Press
March 27, 2011, 11:42PM
Mark Peters AP
In this photo released by the Extraordinary Chambers in the Courts of
Cambodia, Kaing Guek Eav, also known as Duch, center, who ran the notorious
Toul Sleng, a top secret detention center for the worst "enemies" of the
state, looks on during his appealing at the U.N.-backed war crimes tribunal
in Phnom Penh, Cambodia, Monday, March 28, 2011. The man who admitted
overseeing the killing of 16,000 people as the Khmer Rouge's chief prison
warden returns to the courtroom to appeal his 19-year prison sentence on
charges of war crimes and crimes against humanity. (AP Photo/ Mark Peters,
Extraordinary Chambers in the Courts of Cambodia)
PHNOM PENH, Cambodia — The man who admitted to overseeing the torture and
killing of 16,000 people as the Khmer Rouge's chief prison warden returned
to the courtroom Monday in Cambodia to appeal his 19-year prison sentence
for war crimes and crimes against humanity.
Kaing Guek Eav — also known as Duch — is the only person so far to be tried
by a special U.N.-backed tribunal set up to investigate and prosecute
officials from the brutal ultra-Marxist regime whose four-year rule in the
1970s led to the deaths of an estimated 1.7 million people.
The 68-year-old Duch was sentenced last July to 35 years in prison for war
crimes and crimes against humanity, but the sentenced was commuted to 19
years due to time already served and other technicalities.
Defense lawyers have argued that Duch was wrongfully convicted because the
tribunal — known as the Extraordinary Chambers in the Courts of Cambodia —
was supposed to try only senior Khmer Rouge leaders. They argue that Duch
was not a top leader and was merely following orders.
Duch briefly told the court Monday that his case hinged on "personal
jurisdiction" — that is, whether the court had authority to prosecute him.
He then sat impassively as his lawyer spoke.
"Duch was the chairman of a prison guard, of a security center. How could he
be considered to be one of those most responsible for the crimes?" defense
lawyer Kar Savuth said. "He was of course a perpetrator, but he received
orders from his superiors like at other prisons."
Kar argued that Duch was a victim of selective prosecution, since the court
has not sought to indict chiefs of the Khmer Rouge's other 195 prisons,
where he said far more people died than under Duch.
"Duch was just a minor secretary who had no real authority to make any real
decisions or do anything contradictory to the orders of the upper echelon,"
Kar Savuth said.
Prosecutors and others have widely criticized the sentence as too lenient.
Prosecutors have filed a separate appeal and were scheduled to present their
arguments after the defense, with the proceedings scheduled to end by
midweek. A ruling was expected "in the next few months," said tribunal
spokesman Reach Sambath.
Victims and relatives of the Khmer Rouge have expressed outrage by the
sentence, which could allow Duch to one day walk free.
During his 77-day trial, Duch admitted to overseeing the deaths of up to
16,000 people who passed through the gates of the notorious Toul Sleng
prison — also known as S-21 — in Phnom Penh. Prisoners were accused of being
enemies of the regime, and many were tortured into making false confessions.
Torture methods included pulling out prisoners' toenails, administering
electric shocks and waterboarding — a form of simulated drowning.
The hearings will once again focus attention on the U.N. court as it gears
up for another trial later this year of four senior Khmer Rouge leaders:
Nuon Chea, the Khmer Rouge's chief ideologist; Khieu Samphan, its former
head of state; Ieng Sary, its foreign minister; and his wife Ieng Thirith,
who was minister for social affairs.
Critics say the tribunal — 10 years and $100 million in the making — has
been too slow to investigate potential suspects and bring them to trial. The
four leaders scheduled to stand trial in June are all in their 70s and 80s
and in poor health.
The court has also faced allegations of corruption and has been stonewalled
by the current Cambodian government headed by Prime Minister Hun Sen,
himself a former Khmer Rouge military commander. Hun Sen has vehemently
fought the tribunal's efforts to bring more Khmer Rouge officials to
justice, arguing that such moves could destabilize the poor country.
The Khmer Rouge's top leader, Pol Pot, died in 1998.
Copyright © 2011 The Houston Chronicle
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
----------
NEWS:
http://www.bbc.co.uk/news/world-asia-pacific-12877629
British Broadcasting CorporationHome
28 March 2011 Last updated at 08:03 GMT
Khmer Rouge jailer Duch appeals against convictionBy
Guy De Launey
BBC News, Phnom Penh
A UN-backed tribunal in Cambodia is hearing the appeal of a former Khmer Rouge member who was convicted of crimes against humanity.
Kaing Guek Eav was in charge of a detention centre in the late 1970s and oversaw the deaths of around 15,000 people.
But now the man best known as Comrade Duch is arguing he should not have been tried at all.
The Khmer Rouge tribunal has a strictly defined role.
That is to bring to justice the surviving senior leaders of the Khmer Rouge and the people most responsible for the worst crimes committed during the four years Pol Pot's government controlled Cambodia.
Comrade Duch claims he falls into neither category.
Baffling
He has admitted that he ran the notorious S-21 detention centre in Phnom Penh.
During the public phase of his trial he even apologised to relatives of the people who died there.
But he insisted that he was only following orders and that he and his family might have been killed if he had not done as he was told.
The trial chamber rejected his arguments and passed a sentence of 35 years for crimes against humanity, torture and pre-meditated murder.
Youk Chhang is the director of the Documentation Centre which investigated the events at S-21.
He says Cambodians would be baffled by Duch's appeal.
"It's difficult for the public in general to understand the court procedure - they're not lawyers," he said.
"And it's because Duch himself has said all these things during the hearing already: 'Well, I admit it; now I don't'. And then people find that crazy."
The appeal hearing should be followed within months by the long-awaited second trial at the tribunal.
Four senior surviving Khmer Rouge leaders are facing charges of genocide for creating the policies which led to the deaths of around 2m people.
BBC © MMXI The BBC is not responsible for the content of external sites.
------------
http://www.chron.com/disp/story.mpl/ap/world/7493935.html
Ex-Khmer Rouge prison chief appeals sentence
By MIKE ECKEL Associated Press © 2011 The Associated Press
March 27, 2011, 11:42PM
Mark Peters AP
In this photo released by the Extraordinary Chambers in the Courts of
Cambodia, Kaing Guek Eav, also known as Duch, center, who ran the notorious
Toul Sleng, a top secret detention center for the worst "enemies" of the
state, looks on during his appealing at the U.N.-backed war crimes tribunal
in Phnom Penh, Cambodia, Monday, March 28, 2011. The man who admitted
overseeing the killing of 16,000 people as the Khmer Rouge's chief prison
warden returns to the courtroom to appeal his 19-year prison sentence on
charges of war crimes and crimes against humanity. (AP Photo/ Mark Peters,
Extraordinary Chambers in the Courts of Cambodia)
PHNOM PENH, Cambodia — The man who admitted to overseeing the torture and
killing of 16,000 people as the Khmer Rouge's chief prison warden returned
to the courtroom Monday in Cambodia to appeal his 19-year prison sentence
for war crimes and crimes against humanity.
Kaing Guek Eav — also known as Duch — is the only person so far to be tried
by a special U.N.-backed tribunal set up to investigate and prosecute
officials from the brutal ultra-Marxist regime whose four-year rule in the
1970s led to the deaths of an estimated 1.7 million people.
The 68-year-old Duch was sentenced last July to 35 years in prison for war
crimes and crimes against humanity, but the sentenced was commuted to 19
years due to time already served and other technicalities.
Defense lawyers have argued that Duch was wrongfully convicted because the
tribunal — known as the Extraordinary Chambers in the Courts of Cambodia —
was supposed to try only senior Khmer Rouge leaders. They argue that Duch
was not a top leader and was merely following orders.
Duch briefly told the court Monday that his case hinged on "personal
jurisdiction" — that is, whether the court had authority to prosecute him.
He then sat impassively as his lawyer spoke.
"Duch was the chairman of a prison guard, of a security center. How could he
be considered to be one of those most responsible for the crimes?" defense
lawyer Kar Savuth said. "He was of course a perpetrator, but he received
orders from his superiors like at other prisons."
Kar argued that Duch was a victim of selective prosecution, since the court
has not sought to indict chiefs of the Khmer Rouge's other 195 prisons,
where he said far more people died than under Duch.
"Duch was just a minor secretary who had no real authority to make any real
decisions or do anything contradictory to the orders of the upper echelon,"
Kar Savuth said.
Prosecutors and others have widely criticized the sentence as too lenient.
Prosecutors have filed a separate appeal and were scheduled to present their
arguments after the defense, with the proceedings scheduled to end by
midweek. A ruling was expected "in the next few months," said tribunal
spokesman Reach Sambath.
Victims and relatives of the Khmer Rouge have expressed outrage by the
sentence, which could allow Duch to one day walk free.
During his 77-day trial, Duch admitted to overseeing the deaths of up to
16,000 people who passed through the gates of the notorious Toul Sleng
prison — also known as S-21 — in Phnom Penh. Prisoners were accused of being
enemies of the regime, and many were tortured into making false confessions.
Torture methods included pulling out prisoners' toenails, administering
electric shocks and waterboarding — a form of simulated drowning.
The hearings will once again focus attention on the U.N. court as it gears
up for another trial later this year of four senior Khmer Rouge leaders:
Nuon Chea, the Khmer Rouge's chief ideologist; Khieu Samphan, its former
head of state; Ieng Sary, its foreign minister; and his wife Ieng Thirith,
who was minister for social affairs.
Critics say the tribunal — 10 years and $100 million in the making — has
been too slow to investigate potential suspects and bring them to trial. The
four leaders scheduled to stand trial in June are all in their 70s and 80s
and in poor health.
The court has also faced allegations of corruption and has been stonewalled
by the current Cambodian government headed by Prime Minister Hun Sen,
himself a former Khmer Rouge military commander. Hun Sen has vehemently
fought the tribunal's efforts to bring more Khmer Rouge officials to
justice, arguing that such moves could destabilize the poor country.
The Khmer Rouge's top leader, Pol Pot, died in 1998.
Copyright © 2011 The Houston Chronicle
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
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About Me
- Duong Dara
- Dara Duong was born in 1971 in Battambang province, Cambodia. His life changed forever at age four, when the Khmer Rouge took over the country in 1975. During the regime that controlled Cambodia from 1975-1979, Dara’s father, grandparents, uncle and aunt were executed, along with almost 3 million other Cambodians. Dara’s mother managed to keep him and his brothers and sisters together and survive the years of the Khmer Rouge regime. However, when the Vietnamese liberated Cambodia, she did not want to live under Communist rule. She fled with her family to a refugee camp on the Cambodian-Thai border, where they lived for more than ten years. Since arriving in the United States, Dara’s goal has been to educate people about the rich Cambodian culture that the Khmer Rouge tried to destroy and about the genocide, so that the world will not stand by and allow such atrocities to occur again. Toward that end, he has created the Cambodian Cultural Museum and Killing Fields Memorial, which began in his garage and is now in White Center, Washington. Dara’s story is one of survival against enormous odds, one of perseverance, one of courage and hope.