ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Saturday, December 19, 2009

Employee of the Month

Stan Starygin

“Can Duch still be useful to humanity?” inquires Francois Roux, Duch’s international lawyer in his final statement.

Duch’s intelligence and efficiency are known to those acquainted with him personally or through scholarly research. Many have pointed out that he has the efficiency of a dedicated teacher who never misses a spelling error in a student’s essay and who laboriously wades through student papers burning midnight oil until the job is done. Those who knew him as an educator have attested to this on numerous occasions. Those who knew him as an administrator working for an international NGO in the post-July 1997 camps did so too. One of Duch’s international managers in the camps pointed out to me that Duch was a godsend: he spoke a number of languages, was an efficient junior manager, and was respected across the board by the international and Cambodian colleagues. Respected, that is until they found out who he was during Democratic Kampuchea. Even after such a grisly discovery most would not withdraw their commendations of his ability as an NGO employee. During these proceedings an observer pointed out to me that Duch was once again demonstrating his efficiency as a manager and a highly skilled civil servant: he monitored the proceedings in all three languages and corrected the interpreters when he felt they erred, he quickly embraced the system of court documentation and adroitly used it in his defense, he listened closely to testimonies and gave detailed critique, he quoted his own statements in support of subsequent ones and at times took over the proceedings. At times his level of participation in the proceedings, his calmness and professionalism would make an observer feel as if Duch were not the accused but yet another expert witness who happens to be in court the entire time and who knows more about the subject-matter than anyone who takes the stand. Would all these skills be “useful to humanity” or more locally would these skills be of use to Cambodian society? I do not think there is any doubt they would be, particularly in the environment of a poignant dearth of quality human resources to staff the numerous NGOs, UN agencies and fledgling companies in Cambodia. Is this, however, the perennial question of proceedings based on charges of crimes against humanity?

The international lawyer for Civil Party Group (CPG) 1 posited to the Trial Chamber (TC) that in dealing with Duch they were not dealing with an Oscar Schindler type of individual (my curiosity as to how the said lawyer expected the Cambodian judges who doubtless have not seen the film to be able to appreciate this allusion notwithstanding). Duch, however, is not Dusko Tadic (known as ‘Dule’) either to whom the same counsel referred to as “a camp guard” but whose role was much more nuanced and flabbergasting than that. In fact, Dule started off his career by using his acquaintance with some of the guards of the camp in his town to sneak in after dark and beat and humiliate the detainees whom he considered to be his ethnic enemies and his inferiors.
Dule used his personal time and displayed initiative and persistence to do what he did. At no point in the beginning of his career of a sadist was his ordered to commit the acts he committed by anyone. Conversely, Duch did not go out of his way to inflict extra pain and suffering on the detainees. He merely did what he thought the job was and did not seem to spend too much time wallowing in arguments on whether what he helped accomplish was the right thing to do. The proceedings against Dule showed that he took unabated pleasure in debasing his victims which was the sole purpose of doing what he did to them. Throughout the entire course of these proceedings, no undisputed evidence was produced to show that Duch took a sadist’s pleasure in ordering to torture or kill his victims at S-21 (albeit evidence which might amount to such might be found in the testimonies of Duch’s behavior at M-13). It might be a hard fine line for many to see but it is there for those who look.

Thirty years before Duch’s time as commandant of S-21 there was a European man who was of what was seen as good character, a family man, who was assigned a tough job of expanding and running a large facility which operated 24 hours which was a gigantic and at times unmanageable workload thrown at its small but dedicated staff. While supervising the construction of numerous facilities, dealing with staff issues and communicating with his superiors who were hundreds of miles removed from the site, he found time to travel to similar facilities to exchange experiences and lessons learned and managed to increase the capacity of his facility ten times in just a short year and a half. He insisted that meticulous records of the operation be kept and attended to this matter personally. He was strict and did not tolerate instances when his staff deviated from their mandates and the internal rules of the facility. He was often seen burning midnight oil in his office into the hours of dawn. He was disciplined, meticulous, and organized. His name was Rudolf Hoss and he ran the camps at Auschwitz and Birkenau which put to death over a million people. Would someone of Hoss’ administrative ability and dedication be of use to Germany during the years of post-WW2 reconstruction? There is no doubt of that. The Polish government prevented any consideration of such a possibility by executing Hoss, but would Germany have considered his non-punishment and use in post-war matters if it didn’t? Anyone familiar with the post-WW2 German government’s attitude towards the likes of Hoss knows that the answer to that is no.

A number, if not all, the Civil Party Groups (‘CPG’) to these proceedings have lamented the perceived lack of contrition and repentance on the part of Duch, although he showed emotion which was argued to be genuine by his counsel. The question of what is and what is not a genuine emotion when it comes to Duch was perhaps best floored by a psychologist who testified as an expert witness and who stated that Duch is very adaptable to his environments: communism was the soup of the day some thirty years ago and he ate that soup with vigor; Christianity is coming down the pike prominence in Cambodia today and he is on the bandwagon. The victims doubtless want him to feel something, to have regrets, and he tries to cater to his audience. Deep inside he feels that he has had many jobs to do in his lifetime and he feels that he has done them all well and to the highest standards of what was expected of him at the time. These proceedings is but yet another job he had to do and he tried to rise to the standards of what he thought was expected of him. Whether he fits one’s definition of a monster is a judgment call. What he is, however, is someone who finds ways to be enthusiastic about any job he is assigned, be it humanitarian relief or inhumane suffering.

To answer the question posited as thesis of this analysis, we will need to consider whether having a person in our midst who is adaptable to and excitable about missions to a point whether the nature of these missions becomes irrelevant is a benefit or a detriment to this society. Chandler, perhaps, said it best answering a very difficult question that he himself would not know what he would have done had he been presented with Duch’s choice. How many of us would give the same answer after a serious and honest introspection? The legal answer to the question is much simpler, however: regardless of Duch’s admirable traits of character, he furthered the commission of a crime and cannot be reintegrated into Cambodian society until after he has served the term of punishment which will soon be prescribed by the court. Whatever the gravity of this punishment might be, the court must be mindful that it cannot be more severe than that of Dule (20 years; subject to parole; released after 2/3 of term served) during which the court may consider Duch’s potential contribution to this society upon his release. In its analysis the court must go deeper than this and deeper than any other international criminal tribunal has gone thus far and analyze what an appropriate punishment of the US Supreme Court judges would be if a radically new government overturned Roe v Wade and would have calculated the number of fetuses which were terminated (read ‘killed’) pursuant to this law and would put the Roe majority in the dock; what would be an appropriate punishment to the members of the legislatures of the US states which practice the death penalty and which in the last thirty years have killed nearly 1,200 people; what would be an appropriate punishment to the sadists of Abu Ghraib if the US were not a superpower and if they were prosecuted by an international tribunal (as opposed to “they are still our boys and girls” judges of the US military tribunals and Obama’s most recent promise of no further prosecutions of persons “misled” by the interrogation techniques directive of the US Department of Justice (which leaves the question of who misled Gonzales). This court has a chance of reaffirming that justice is blind to the color of an accused’s passport and that if we cannot expect “our boys” to know that the pain amounts to torture if the detainee bellows in agony regardless of what the finer interpretation of the interrogation guidebook might be, nor can we apply a different standard to someone who happens to be a citizen of a small country with very little international clout and who happened to have worked for a government which has been condemned by the present powers that be. The court has a daunting task before it which it must approach gingerly and take its time analyzing the numerous facets this issue has.

Monday, December 14, 2009

Khmer Rouge tribunal names new foreign prosecutor

The Associated Press

Tuesday, Dec. 1, 2009 10:28 p.m.

The Khmer Rouge genocide tribunal said Wednesday that it has appointed a new international prosecutor whose most recent job was defending former Liberian President Charles Taylor at his war crimes trial.

Andrew T. Cayley of Britain, who has also served as a prosecutor at international war crimes courts, was named to the post left vacant in September by the resignation of Canadian co-prosecutor Robert Petit, the tribunal said in a statement.

The tribunal, known as the Extraordinary Chambers in the Courts of Cambodia, incorporates mixed teams of foreign and Cambodian judges, prosecutors and defenders. Political wrangling between the two sides has led to many delays, and allegations of corruption among the tribunal's Cambodian staff have hurt the tribunal's credibility.

A verdict is expected early next year in the tribunal's first trial, of Khmer Rouge prison chief Kaing Guek Eav, also known as Duch, who is charged with crimes against humanity, war crimes, murder and torture.

The brutal 1970s rule of the Khmer Rouge left an estimated 1.7 million people dead from torture, execution, disease and starvation.

The tribunal is also holding four former senior Khmer Rouge leaders in custody, and they are expected to be tried next year or later.

Cayley has spent the last two years in private practice, during which time he defended Charles Taylor, the tribunal said. Taylor, accused of providing arms to Sierra Leone rebels in exchange for diamonds mined by slave laborers, ended 13 weeks on the witness stand earlier this month at the Special Court for Sierra Leone.

Cayley earlier served as senior prosecuting counsel for the International Criminal Court investigating crimes in Darfur and the International Criminal Tribunal investigating war crimes in the former Yugoslavia, it said.

The tribunal also said American Nicholas Koumjian was appointed reserve co-prosecutor.

Khmer Rouge torturer had to "kill or be killed"

Thu Nov 26, 2009 1:44am EST By Ek Madra

PHNOM PENH, Nov 26 (Reuters) - The Khmer Rouge's chief torturer and jailer had to "kill or be killed" and operate like an "obedient machine", his lawyer said on Thursday in defending the first member of Cambodia's murderous regime to face justice.

In the final two days of testimony in the U.N.-backed war crimes tribunal, a lawyer for the commander of the Khmer Rouge's notorious S-21 prison said his client's life was at stake when he ordered the murder of more than 14,000 people in the 1970s.

Speaking a day after prosecutors asked the court to sentence Kaing Guek Eav, better known as Duch, to 40 years in prison, the lawyer said the tribunal should show leniency because the 67-year-old former maths teacher had fully cooperated.

"Without Duch, the trial could not have unfolded if he, like others, had decided to remain in silence," Francois Roux, Duch's lawyer, told a courtroom packed with more than 600 people, including many survivors of the ultra-communist regime blamed for 1.7 million deaths in 1975-79.

"The accused was absolutely, himself, in the hands of the party. And in fact, he had to operate like a machine, an obedient machine," said Roux. "He himself was in a situation where he had to choose to kill or be killed."

"We do not wish our client to be the scapegoat," he added.

Duch is scheduled to take the stand again on Friday on the final day of the trial. A verdict is expected by March.

He is accused of "crimes against humanity, enslavement, torture, sexual abuses and other inhumane acts" as commander of Tuol Sleng prison, a converted high school also known as S-21, during one of the darkest chapters of the 20th century.

Only seven of 14,000 people who passed through S-21 survived.

Prosecutors have urged the tribunal's five-judge panel to reject Duch's assertion he had little choice but to carry out orders, saying Duch was "ideologically of the same mind" as the Khmer Rouge leaders and did nothing to stop prison guards from inflicting rampant torture.


Lead prosecutor William Smith told the court this week "the accused was neither a prisoner, nor a hostage, nor a victim. He was an idealist, a revolutionary, a crusader prepared to torture and kill willingly for the good of the revolution."

The tribunal seeks justice for nearly a quarter of Cambodia's population who perished from execution, overwork or torture during the Khmer Rouge's agrarian revolution, which ended with the 1979 invasion by Vietnam.

Duch faces up to life in prison if convicted. Smith said on Wednesday he should get 40 years. Cambodia does not have capital punishment.

Now a born-again Christian, Duch expressed "excruciating remorse" on Wednesday for the S-21 victims, most of them tortured and forced to confess to spying and other crimes before they were bludgeoned to death at the "Killing Fields" execution sites.

Witnesses in 72 days of hearings spoke of beatings with metal pipes, electrocution, near-starvation, violent rape and prisoners forced to eat their own excrement.

Duch has asked if he could apologise in person to his victims' families, and has said he was convinced he was fighting to free Cambodia from U.S. imperialism during the Vietnam War.

Four other senior Khmer Rouge cadres are in custody awaiting trial. They are ex-president Khieu Samphan, former Foreign Minister Ieng Sary, his wife Khieu Thirith and "Brother Number Two" Nuon Chea. Unlike Duch, they have not publicly apologised.

Pol Pot, architect of the Khmer Rouge's "Year Zero" peasant revolution, was captured in 1997 and died in April 1998.

The chamber of three Cambodian and two foreign judges -- known as the Extraordinary Chambers in the Courts of Cambodia -- requires four to agree on a verdict. (For a Factbox on the Khmer Rouge, click on [ID:nBKK383182] and for a Q+A on the tribunal click on [ID:nBKK490936]) (Writing by Jason Szep; Editing by Alan Raybould and Dean Yates) ((email: ((If you have a query or comment on this story, send an email to

Thursday, December 10, 2009

Duch's Last Days in Court 4

In this photo released by the Extraordinary Chambers in the Courts of Cambodia, Kaing Guek Eav, center, the former chief of the Khmer Rouge's notorious S-21 prison, now known as Tuol Sleng genocide museum, stands in the court room of the U.N.-backed tribunal in Phnom Penh, Cambodia, Wednesday, Nov. 25, 2009. Prosecutors in the genocide trial of the former Khmer Rouge prison chief demanded he be sentenced to 40 years in jail for his role in the killing of thousands of Cambodian prisoners. Photo: Anonymous / AP2009

Duch's Last Days in Court 3

In this photo released by the Extraordinary Chambers in the Courts of Cambodia, Kaing Guek Eav, center, the former chief of the Khmer Rouge's notorious S-21 prison, now known as Tuol Sleng genocide museum, stands in the court room of the U.N.-backed tribunal in Phnom Penh, Cambodia, Wednesday, Nov. 25, 2009. Prosecutors in the genocide trial of the former Khmer Rouge prison chief demanded he be sentenced to 40 years in jail for his role in the killing of thousands of Cambodian prisoners. Photo: Anonymous / AP2009

Duch's Last Days in Court

In this photo released by the Extraordinary Chambers in the Courts of Cambodia, Kaing Guek Eav, right, the former chief of the Khmer Rouge's notorious S-21 prison, now known as Tuol Sleng genocide museum, talks with his Cambodian lawyer, Ka Savuth, in a courtroom of the U.N.-backed tribunal, in Phnom Penh, Cambodia, Tuesday, Nov. 24, 2009. Also known as Duch, Kaing Guek Eav is charged with crimes against humanity, war crimes, murder and torture, and is the first of five defendants scheduled for long-delayed trials by the tribunal. Photo: Extraordinary Chambers In The Courts Of Cambodia / Extraordinary Chambers in the Courts of Cambodia

Duch's Last Days in Court 1

In this photo released by the Extraordinary Chambers in the Courts of Cambodia, Kaing Guek Eav, right, the former chief of the Khmer Rouge's notorious S-21 prison, now known as Tuol Sleng genocide museum, talks with his lawyer Francois Roux, left, from France, in a courtroom of the U.N.-backed tribunal, in Phnom Penh, Cambodia, Tuesday, Nov. 24, 2009. Also known as Duch, Kaing Guek Eav is charged with crimes against humanity, war crimes, murder and torture, and is the first of five defendants scheduled for long-delayed trials by the tribunal. Photo: Anonymous / AP2009

Wednesday, December 2, 2009

The Khmer Rouge Tribunal Paves the Way for Additional Investigations

By Neha Jain


Prosecutors of international criminal tribunals face an unusual dilemma that purely national jurisdictions do not normally experience: what happens when the prosecution of individuals suspected of committing grave crimes is challenged on the ground that it undermines national reconciliation? Perhaps nowhere is this conflict more apparent than in the Extraordinary Chambers in the Courts of Cambodia, colloquially known as the Khmer Rouge Tribunal or the ECCC. On September 2, 2009, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) made public its decision in the dispute between the Co-Prosecutors of the ECCC over whether to proceed with the investigation of additional suspects.[1] The dispute is unique in the history of international criminal tribunals. It marks the first ever instance of international prosecutors simultaneously exercising their discretion to reach divergent decisions on whom to prosecute. It places the Pre-Trial Chamber in the novel position of an international judicial organ having to decide between these competing claims. The ECCC is also unusual in having equal national and international counterparts at all levels of decision making (except the judicial organ, where the national judges are in a majority). The dispute therefore implicates issues that challenge the seeming coherence of international criminal justice and its diverse constituencies.


The ECCC is tasked with prosecuting senior leaders and those most responsible for the crimes committed during the Khmer Rouge regime which governed Cambodia from 1975 to 1979.[2] In accordance with the Internal Rules of the ECCC, all prosecutions are the responsibility of co-equal national and international prosecutors.[3] Once the Co-Prosecutors have reason to believe that crimes within the ECCC's jurisdiction have been committed, they are tasked with opening a judicial investigation by forwarding an “Introductory Submission” to the Office of the Co-Investigating Judges (OCIJ). This statement contains the relevant facts, offences and legal provisions, and the names of the accused, if applicable. It is accompanied by evidentiary material in support of its claims.[4] The Co-Investigating Judges conduct a judicial investigation on the basis of this Introductory Submission and other Supplementary Submissions. The investigation is concluded with the issuance of a Closing Order that either indicts the charged person and forwards the case to trial or dismisses it.[5]

The ECCC has so far indicted five suspects, four of whom were high ranking members in the regime, and the fifth, Kaing Guek Eav alias Duch, who headed the infamous Tuol Sleng prison in Phnom Penh.[6] The current dispute between the Co-Prosecutors arose out of the decision of the international Prosecutor to forward new Introductory Submissions to the OCIJ. These allegedly contained new facts and crimes, thus opening up the possibility of investigating additional suspects. According to the national Prosecutor, who has resisted this decision on practical and policy grounds, additional investigations would undermine national reconciliation efforts, especially in light of Cambodia's history of instability. She has also argued that the spirit of the ECCC law does not contemplate further prosecutions, and that the Court's limited duration and resources support a narrower range of potential suspects for trial.[7]
In accordance with the constitutive documents and Internal Rules of the ECCC, the dispute was referred to the Pre-Trial Chamber (PTC), an organ specifically mandated to resolve disputes between the Co-Prosecutors. The PTC is composed of three national and two international judges and follows the “super-majority rule” to adopt a decision, which requires four out of the five judges to vote in its favor.[8] In the event this super-majority cannot be obtained, the law favors prosecution and moving forward with the investigation.[9]

Legal Arguments Raised by the Parties

The national Prosecutor objected to the opening of additional investigations on three main grounds.[10] First, she argued that the facts and crimes included in the new Introductory Submissions were already covered in the First Introductory Submission that dealt with the totality of crimes committed during the Khmer Rouge regime. According to the national Prosecutor, since a new Introductory Submission could be issued only pursuant to the emergence of new facts that were not already under investigation, the Submissions in this case were not necessary. Second, she stated that the preliminary investigation leading to the issuance of the new Submissions was illegal because it was conducted unilaterally and without her knowledge or assistance. Finally, she reiterated her argument that the additional investigations would not be in the interest of national reconciliation and that, given the ECCC's limited time and resources, they would endanger the existing trials. She cautioned that the indictments could lead those loyal to the Khmer Rouge to commit acts of violence, and may also prevent ex-Khmer Rouge members from acting as witnesses for fear of being indicted.

The international Prosecutor challenged these arguments on factual and legal grounds.[11] He asserted that the First Introductory Submission had only contained a set of twenty-five specific criminal facts and that the new Submissions contained new facts and crimes. He challenged the national Prosecutor's illegality argument and claimed that she was aware of the preliminary investigations, particularly since they were based on in-house documents collected prior to the First Introductory Submission with her consent. He also stated that the national reconciliation arguments are inconsistent with the ECCC's mandate to ensure accountability. In partiular, Rule 53 of the Internal Rules made it clear that the main criterion for deciding whether to proceed with investigations was whether there was “reason to believe” that crimes had been committed.

The Decision of the Pre-Trial Chamber

The decision of the Pre-Trial Chamber saw a split between the national and international judges, the former ruling in favor of the national Prosecutor and the latter in favor of the international Prosecutor. The national judges agreed with the national Prosecutor that the preliminary investigation was a significant starting point that validated the Introductory Submission. Since the preliminary investigations had been carried out unilaterally by the international Prosecutor, without the knowledge of, or in co-operation with the national Prosecutor, they were in violation of ECCC law and the Internal Rules.[12] They also disagreed that the new Introductory Submissions contained additional facts or crimes. Hence, they dismissed the necessity argument for filing the new Submissions, especially since the First Submission judicial investigation by the OCIJ had not been completed.[13] The national judges considered these conclusions sufficient to vitiate the filing of new Introductory Submissions and therefore did not review the Co-Prosecutors' additional grounds.

The international judges disagreed with their national counterparts on both these conclusions. They considered that the national Prosecutor's unawareness of the preliminary investigations comprised background information rather than an issue germane to the dispute. They surmised that, based on the national Prosecutor's own assertions, she should have known of the investigations.[14] They further noted that the First Introductory Submission could not possibly have included the totality of crimes committed during the Khmer Rouge regime, since this would have lacked the element of specificity required of an Introductory Submission under Internal Rule 53(1). Had this truly been the case, the Co-Prosecutors would not have filed Supplementary Submissions after the First Introductory Submission requesting the OCIJ to investigate new facts. They also compared the new Submissions with the First Introductory Submission and found that the former did in fact contain new crimes along with facts that overlapped those contained in the First Introductory Submission. According to the international judges, the international Co-Prosecutor could file a new Submission in relation to these new crimes in order to cover the criminal responsibility of additional suspects.[15] Since the national judges rejected to rule on the third issue of national reconciliation raised by the national Prosecutor, the international judges also refused to comment on it. They did nevertheless point to Internal Rule 53(1) as providing no room for prosecutorial discretion. Thus, according to the international judges, once the Co-Prosecutors had reason to believe that crimes within the jurisdiction of the ECCC had been committed, they were obliged to open a judicial investigation by forwarding an Introductory Submission to the OCIJ.[16]

Discretion to Prosecute

The issue of prosecutorial discretion however deserves a far more nuanced analysis than suggested by the bald statement of the international judges.[17] At first glance, Rule 53(1) certainly appears closer to the civil law model of Legalitätsprinzip that obliges the prosecutor to prosecute every serious crime falling within his or her mandate. A corresponding obligation seems to extend to the OCIJ, where the Internal Rules declare a judicial investigation to be compulsory for crimes within the ECCC's jurisdiction.[18] The only factors compelling dismissal of a case by the OCIJ are lack of jurisdiction, insufficiency of evidence, or non-identification of the perpetrators.[19] A closer inspection however reveals that the Co-Prosecutors enjoy considerable latitude in fulfilling their duty to prosecute. After determining whether there is “reason to believe” that crimes within the ECCC's jurisdiction have been committed, they are tasked with launching an investigation.[20] Furthermore, they are free to decide which factors to take into account in concluding who should be considered a “senior leader” or “most responsible” for the crimes alleged.

There is no provision in the ECCC law explicitly authorizing a refusal to investigate or prosecute on national reconciliation grounds. However, the Preamble of the Agreement signed between the Cambodian Government and the United Nations,[21] which is one of the constitutive instruments of the ECCC, states that one of ECCC's aims is to promote justice, stability, peace and security, as well as national reconciliation. The fact that the imperatives of domestic peace and stability were meant to be taken into account during prosecutions is also clear in the documents and reports preceding the ECCC's establishment.[22]

Further, in the event of a lacuna or ambiguity in its procedural law, the ECCC may consider relevant rules of procedure established at the international level.[23] While the practice of other international tribunals suggests that international prosecutors have exercised their discretion on whether and whom to prosecute based on a host of factors,[24] including policy considerations, there is no consensus on when and to what extent it is appropriate to do so. The Rome Statute of the International Criminal Court (ICC) is the only constitutive instrument of an international tribunal that expressly allows the Prosecutor to choose whether to investigate or prosecute “in the interests of justice.”[25] Though the need for national reconciliation and the provision of alternative justice mechanisms is certainly acknowledged as a possible interpretation of this mandate,[26] the ICC Prosecutor has publicly declared his refusal to bow to purely political constraints.[27] There is moreover no clear guidance in the Statute on how the Prosecutor is expected to balance the need for prosecution versus the interests of justice.


Since the judges failed to reach a super-majority in favor of the national Prosecutor, the investigations will go forward. The issues raised here may however have to be revisited if the national and international Co-Investigating Judges, to whom the new Introductory Submissions are forwarded, also disagree on whether to issue indictments based on the new Submissions. The dispute will then have to be referred to the Pre-Trial Chamber. While the Chamber managed to decide the dispute between the Co-Prosecutors on relatively uncontroversial grounds, it may not be able to sidestep the primary legal issue that it was able to avoid this time – the legitimacy of not proceeding with investigations or prosecutions against suspects on the ground that it will adversely impact national reconciliation.[28] If the international judges' interpretation of Internal Rule 53(1) is valid, then this is not a legitimate ground for refusing to proceed with prosecutions.

Through its cautious judgment in the present case, the Chamber has avoided entering into this controversial terrain that international criminal tribunals such as the ICC will be forced to confront. In so doing, it has perhaps only postponed the inevitable. Furthermore, while the divergent decisions of the judges are based on objectively differing factual conclusions, they may back the ECCC's critics, who contend that the decisions of the national and international organs of the court may be influenced by the respective political considerations of their constituencies.
About the Author

Neha Jain, B.C.L., M. Phil in Law (Oxon), is a research fellow at the Max Planck Institute for Foreign and International Criminal Law, Freiburg, and a candidate for the D. Phil in Law at Oxford University.

Tuesday, December 1, 2009

In Final Plea, Duch Asks To Be Freed

By Men Kimseng, VOA Khmer
Original report from Washington
30 November 2009

The final stage of the trial for jailed Khmer Rouge prison chief Kaing Kek Iev ended Friday, with the defense split and the defendant asking to be set free despite admissions of guilt.

Prosecutors have demanded Kaing Kek Iev, better known as Duch, be given 40 years for his role as administrator of the Khmer Rouge prison Tuol Sleng, where they say more than 12,000 people perished.

The Trial Chamber’s five judges, two foreign, three Cambodian, are expected to announce a verdict early in 2010, for charges of war crimes, crimes against humanity, torture and murder.

In the final week of arguments, Duch’s defense lawyers found themselves at odds, with French attorney Francois Roux arguing for leniency in the sentencing, for Duch’s admission of guilt and cooperation with the UN-backed court, and with Cambodian attorney Kar Savuth asking the most serious charges be dropped.

Duch himself stunned observers of the court Friday when he simply asked to be let free.

Thun Saray, president of the rights group Adhoc, which has been monitoring the tribunal, said the disunity among the defense could be a disadvantage for the defendant.

“It’s up to the judges’ decision, based on all the evidence received from civil parties and co-prosecutors,” he said. “But to set him free, I think, would be impossible, although the court may consider that he has been in detention for more than 10 years.”

Duch’s trial began in March, when he claimed he would take responsibility for his role as prison administrator and asked for forgiveness from his victims. He described the leadership of the Khmer Rouge communists.

“Duch has helped the court a lot,” tribunal spokesman Reach Sambath said. “He made sure that the court and the people understood his point of view. He and his defense lawyers cooperated well with the court. We see that Duch has contributed to the success we have had and to the court’s operation.”

The tribunal, following Cambodian law, has no provision for the death penalty, only lifetime imprisonment. But an early release is not likely to go down well with families of victims or survivors of his prison.

“If Duch is set free, there will be a problem,” said Chum Mey, who lived through Tuol Sleng. “It will be a joke on the international community. The court has spent a lot of money, and what will happen if Duch is set free?”

Duch may not be a top leader, “but everybody knows that he killed people at Tuol Sleng,” Chum Mey said.

Were Duch to be set free, there remains a court mechanism for appeal for men like Chun Mey.

“In principal, any party who does not agree with the court decision can appeal to the [tribunal] Supreme Court,” said Neou Kassie, head of the court’s Victims Unit. “We have another level. This is the right of all parties.”