by Stan Starygin
In the last week and half we have been hearing about Duch's trip to what is believed to have been the detention, torture and execution sites of Phnom Penh during Democratic Kampuchea's reign of power. All media articles -- unless there are ones I missed -- have reported two highly non-substantive things: (1) the media's acrimony about the court's ban on any reporting from the sites and (2) that simple fact that Duch's trip (the CIJs' investigation) was in fact taking place (this piece of information was imparted by the court itself and hardly needed any further corroboration). There, of course, have been all kinds of rumors of mishaps and 'kamikazi' reporting, many of which I can't have fully verified and which, beyond their anecdotal value, shed very little or no light on what had taken place and what the CIJs were looking for in this highly-publicized investigative effort.
What seems far more interesting for the overall process is why Duch agreed to do it. This begs an even more interesting question, which is why Duch's defense allowed him to do it. Let's examine some of the possibilities:
(1) this was a part of the plea-bargaining scheme devised by the Co-Prosecutors, Co-Investigating Judges and the defense. This is completely out of the question as (a) the Cambodian legal system doesn't recognize the concept of plea bargaining; (b) arraingments in Cambodian courts don't contain a plea component; (c) even if this was the case, the civil parties and the general public would unlikely let the Co-Prosecutors and the Co-Investigating Judges plea Duch's case out; (d) the plea bargaining system was created in the British Empire to expedite the processing of heaps of cases and make the expenses of justice lighter; the Co-Prosecutors and the Co-Investigating Judges are in no hurry, as the monies expended by this court are being donated by various contributors who don't exercise direct control over the finances of the court, as it would be the case in national jurisdictions.
(2) the Co-Prosecutors offered a promise of attractive sentencing recommendations which the defense accepted. This is a long shot. Although it is not clear what stragegy Kar Savuth and Francois Roux might have in mind, negotiating sentencing recommendations at this stage would be tantamount to declaring your client guilty and throwing in the towel.
(3) dropping charges against Duch and treating him as a highly valuable witness. Once again, very unlikely to a wide array of reasons: (1) his prior incarceration (which in this society is tantamount to the admission of guilt); (2) his highly publicized persona which has been in the spotlight, off and on, since 1999; (3) he is the only alleged hands-on killer to have been detained by the tribunal thus far.
(4) the defense protested against this action by the CIJs and was overruled by the PTC. This is possible, although no documents have been made public or were leaked out to the press to corroborate this theory.
(5) Duch disregarded the advice of his lawyers and consented to the Co-Investigating Judges' request. This is also possible, although the last half a year of history of Duch's collaboration with his lawyers doesn't give me any reason to believe that he would so blatanly disregard their advice.
(6) the defense's trial strategy will be predicated on Duch's character and his actions in the last 20 years, rather than during the period when he presided over S-21. It is not too farfetched that after having examined the evidence accumulated against their client, Duch's lawyers decided that they would stand no chance of successfully suppressing or invalidating this evidence in court. They, instead, might have decided to present the last 20 years of Duch's biography as that of a good Christian and a law-abiding citizen who cooperates with the authorities in every way he can. The defense, therefore, might have decided to start collating instances of such cooperation at the pre-trial stage of the proceedings to then air them at trial as their client's symbols of repentance and intent to help put "the real criminals" into the dock. This might not help Kar and Roux acquit Duch -- which few believe is possible considering the weight of the currently existing evidence against him -- but it might help them get a more favorable sentence for their client, which is better than not trying at all.
(7) the court ordered Duch's appearance at said sites which was contested by no one. This is very likely to have happened considering the defense' previous record of non-raising of valid pre-trial arguments for the defense was rumored to have nodded to a supposedly existing strategy of why those arguments were withheld. This strategy must have been so well-camouflaged that it since hasn't bubbled up to the surface or, otherwise, manifested itself in any other way. The defense couldn't have raised an argument against this site visit for which there is plenty of support in international case-law (off hand, Rudolf Hoss, Adolf Eichmann and Miroslav Krstic (I am not naming all ICTY defendants, many of whom couldn't have been taken to the alleged crime scenes due to the ongoing hostilities in those areas at the time of their trials; Krstic and several others could have, though) come to mind).
The question, therefore, remains open: why did Duch agree to this site visit and why did his lawyers let him?