At the close this week of five- and-a-half months of witness testimony and evidence in the trial of former S-21 Chairman Kaing Guek Eav at the Khmer Rouge tribunal, perhaps a mental exercise is in order.
First, from the total of evidence given by 33 witnesses and 22 civil parties in the trial, remove everything that had already been confessed by the accused, who is better known as Duch, even before the trial began in February.
Then subtract the testimony given by the nine expert witnesses, none of whom were in Cambodia at the time that Duch committed his alleged crimes.
So what is left?
In some respects, very little, as key witnesses with direct knowledge of the actions of Duch when he was chairman of the Khmer Rouge’s S-21 prison appeared unable or unwilling to say more than the accused freely told the court himself.
Having conceded or not contested 238 of the prosecution’s 351 allegations, the defense had its own case to make: that Duch acted in fear of his superiors and is now remorseful. Humanity should embrace his heroic turn from the darkness to the light.
Almost from the opening of the trial, the defense verged on reversing the direction of inquiry so that it is the public, not the accused, who is now called on to face facts.
In an adroit, if less than honorable maneuver, the defense in July apparently succeeded in frightening several witnesses into discrediting their own testimonies.
Days went by in court as judges and prosecutors took pains to reassure former S-21 secret police guards and interrogators that they were not themselves risking prosecution for discussing their own roles at Tuol Sleng.
But they were perhaps too slow to oppose the open-court warnings of self-incrimination given by Duch’s French defense lawyer Francois Roux, a litigator whose long experience with war crimes trials allowed him to deftly navigate the story of Duch that the Trial Chamber has been told.
Mam Nai, the chief interrogator of S-21, claimed on July 14 that he was unaware of any torture at S-21. It is hard to see how this can be anything but a lie. Even Duch told said as much in a fiery rebuke of Mr Nai in court.
Him Huy, who ultimately became the chief guard at Tuol Sleng, likewise requested a lawyer to avoid self-incrimination. Then on July 20, he recanted his video-recorded statements given to tribunal investigators in which he admitted to beating S-21 detainees and so exposed himself to fierce defense challenges to his credibility.
Alain Werner, a lawyer representing 38 people seeking justice from Duch, said his clients will have none of Duch’s choir-singing quest for redemption.
“The entire effort is to return to the nauseous effluvia of S-21,” Mr Werner said in an interview on Friday, noting that the defense had never proposed a single character witness to testify about Duch during the period of his alleged crimes in the 1970s.
“We do not accept that the entire debate should be whether Duch can return to humanity,” he said.
After 72 days of trial and the appearance of 33 witnesses and 22 civil parties, the net gain in evidence, beyond what was already common knowledge about Duch and Tuol Sleng, may appear modest.
But Duch’s character, and his freedom to act, perhaps wasn’t.
While, in the abstract, Duch was willing to tell the court that he accepted responsibility for the entire Khmer Rouge regime, he still seemed reticent to come entirely clean when asked about the specific offenses that may aggravate his guilt.
“In effect, you ordered the execution of more than 12,000 people. Is that correct?” Judge Silvia Cartwright asked the accused on June 17.
Measuring his response, Duch conceded only that this had happened during “the implementation of the party’s political line.”
Former S-21 interrogator Prak Khan, for Duch the single most damaging witness, said his former superior had instructed his subordinates in the use of whips, electric shocks and the insertion of needles under fingernails. Though Duch denied this, Mr Khan said the force-feeding of human excrement to prisoners was also a subject of Duch’s detailed instructions.
Perhaps most damning of Duch’s claims that he acted solely out of fear was Mr Khan’s assertion that Duch personally ordered the arrests and executions of 300 soldiers from Division 703, the military formation that constituted the bulk of S-21 staff.
This was done due to Duch’s own fear that the men would take away his power, Mr Khan said.
“My conclusion was that he did not want the 703 to rise to power. He was afraid he would not be the chairman forever,” Mr Khan told the court on July 22.
On June 17, Duch denied that he had taught his subordinates how to kill, stating that “crocodiles already know how to swim.”
However, Him Huy, the former S-21 guard, testified a month later that Duch and his subordinate Hor, alias Khim Vat, had indeed instructed guards to bash in the heads of the condemned and slit their throats to ensure death.
On hearing this testimony, Duch offered no denials.
Duch also began the trial saying he had never liked security work and had always vainly tried to obtain reassignments from his Khmer Rouge superiors.
However, under questioning by former UN Senior Assistant Prosecutor Alexander Bates, who called Duch “the perfect candidate” for S-21, he admitted to having collected and read books on espionage, including former CIA Director Allen Dulles’ 1963 work “The Craft of Intelligence.”
Expert witness Craig Etcheson, a scholar of the Khmer Rouge hired by the prosecution, described Duch in May as “an innovator, a creator, a developer, and an institutionalizer” whose “creativity, inventiveness and zeal” maximized the number of his victims.
Historian David Chandler noted that Duch, who remained in the Khmer Rouge movement for 13 years after the 1979 collapse of its government in Phnom Penh, “did not seem to suffer” from the burden of his earlier wet work at Tuol Sleng.
Psychologist Francoise Sironi-Guilbaud testified on Aug 31 that Duch had been “psychologically responsible” for his actions and had learned to suppress his empathy.
While Duch has cooperated with the tribunal, his four fellow co-detainees have so far remained silent, meaning that their trials will likely be far tougher and lack the kind of active participation, if not orientation, that Duch provided in his own trial.
Youk Chhang, director of the Documentation Center of Cambodia, said on Friday that there exists enough witness and documentary evidence to try the remaining suspects even without their cooperation.
“It is a question of the competence and expertise of the court to link this together,” Mr Chhang said, adding that a paper trail also exists for Khmer Rouge activities outside S-21.
“I can assure you that there are similar documentations that have been provided to the court.”
Final written submissions are in the Duch case are due on Nov 11 prior to start of closing arguments on Nov 23.
