The former chief of the S-21 Khmer Rouge torture prison faced a panel of judges at the Extraordinary Chambers in the Courts of Cambodia Tuesday, the first public hearing the UN-backed tribunal has convened since it began work last year.
It was a day many believed would never come.
Kaing Guek Eav, alias Duch, stands accused of war crimes and crimes against humanity for allegedly overseeing the torture of at least 14,000 prisoners at S-21. He has been detained at an ECCC facility since late July.
At issue Tuesday before the five pre-trial chamber judges was the question of whether Duch’s detention without trial in a military prison since 1999-and prior to his arrest by the ECCC-should have any bearing on his prosecution before the Khmer Rouge tribunal.
“Your honor, the reason I lodged the appeal is I had been detained without trial for 8 years, 6 months, and 10 days already,” Duch said in court.
He spoke softly-a judge had to ask him to speak up-and said little else during the five-hour hearing.
Duch seemed calm and alert. He sat still behind the curved wooden dock throughout most of the proceedings, just his eyes ranging over the small courtroom.
More than 500 victims, diplomats, members of the media, and assorted members of the public attended the public hearing at the tribunal’s headquarters on the outskirts of Phnom Penh. Ten members of the public and two journalists at a time were allowed into the small pre-trial chamber where the proceedings took place.
Hundreds more watched the proceedings by video link in the main courtroom.
S-21 survivor Chum Mey, 77, was one of those picked to sit in on the hearing. He sat about three meters from the man who allegedly oversaw his suffering.
Chum Mey said that during his three-month incarceration at S-21, his thumbnails were ripped out and he was jolted with electric shocks, but he never looked his torturers in the face, out of fear.
At one point during Tuesday’s hearing, Duch looked over at Chum Mey who looked down and closed his eyes, his hands clenched in his lap.
“I am not afraid anymore,” Chum Mey said after the hearing.
Another observer, Khmer Rouge survivor Thida Mam, who wrote “To Destroy You Is No Loss,” said: “All of us want to get up and punch him.”
The calming intercessions of a young Buddhist monk in their midst were the only thing that kept them politely in their seats, she added.
Oum Pom, 76, watched Duch closely during the hearing, his wrinkled face tight with anger. He said he lost a dozen family members and was chained in a coffin for a month during the Pol Pot years.
“Why are we having a discussion? He killed my people, my family,” Oum Pom said.
In July, co-investigating judges ordered Duch to be detained for up to a year on the grounds that he might flee, intimidate witnesses, or be harmed himself.
But Duch’s defense attorneys, Kar Savuth and Francois Roux, appealed his detention on August 23. They maintain their client’s prolonged incarceration by the military court violated both Cambodian and international humanitarian law, and argued for his release, under house arrest, if necessary.
They also argued that he should be compensated for his unfair suffering, with at minimum a reduced sentence, should he be convicted.
“Please release Kaing Guek Eav, alias Duch. Let him have his freedom immediately,” said Kar Savuth, who mounted a spirited defense, which more than once sent waves of laughter through the packed crowd in the trial chamber.
French attorney Francois Roux said the ECCC must enshrine the human rights of defendants and victims alike.
“The integrity of the court is at stake,” he said, adding: “Human rights, if we do respect them, we must fully respect them.”
Duch’s attorneys maintain that the gravest threat to Duch’s personal safety was former Khmer Rouge military chief Ta Mok, who died last year.
“Now Ta Mok is dead already, so it’s no problem for Duch,” Kar Savuth said.
He added that since his client has neither money nor a passport he’s not likely to flee if released on bail.
Prosecutors sought to portray the ECCC as a special court, distinct from the Cambodian Military Court in Phnom Penh which ordered Duch’s prolonged incarceration.
“This is a special court, which applies international standards,” said Co-Prosecutor Chea Leang, adding that Cambodia’s Court of Appeal and Supreme Court are the proper place to complain about Duch’s detention by the military court.
“The ECCC does not have jurisdiction over the actions of local authorities. The ECCC has no obligation to force other national courts to do according to its orders. We are, again, a separate, unique body,” she said.
Prosecutors also said Duch’s history of living under assumed names and moving frequently to escape detection-at one point even his own mother didn’t know his whereabouts, they said-constitute evidence that he’s a flight risk.
In an interview after the hearing, Co-Prosecutor Robert Petit said, “I’m just very happy that finally Cambodians are able to see justice being delivered in a public and transparent way. I feel honored to be part of that.”
Documentation Center of Cambodia Director Youk Chhang said the historic hearing was a welcome sign that the tribunal might be able to shake off years of political machinations and bring survivors some measure of justice.
“The ECCC is gradually becoming independent from the government and hopefully from the politics of the international community also. That is where this tribunal should stand,” he said.
The hearing was scheduled to continue Wednesday.