The defense appear to be at the point where every little bit helps: the Khmer Rouge tribunal last month reminded lawyers for Kaing Guek Eav, alias Duch, that the court could provide “basic legal assistance and support” if needed.
It was perhaps an indication of the state of the Duch defense six months after the crimes against humanity convict sacked his experienced French lawyer, refused to hire another international counsel, and began pursuing a one-track defense strategy.
Since Francois Roux was fired in July, Cambodian co-lawyers Kar Savuth and Kang Ritheary have advanced a single argument: that the Khmer Rouge tribunal has no jurisdiction over the former S-21 prison director, who presided over the deaths of an estimated 14,000, since he was not a “senior leader” or one of those “most responsible” for crimes committed under the Pol Pot regime.
This is largely the basis for Duch’s appeal against his July conviction and 35-year prison sentence.
Lawyers for four Democratic Kampuchea leaders set to be tried this year have been zealous advocates for their clients’ procedural rights and have advanced a number of legal arguments even as they continue to question the validity of the tribunal. Duch’s lawyers have taken only the latter approach.
“With the Duch team at this point you would think they could cover the field more,” said Anne Heindel, legal adviser to the Documentation Center of Cambodia. “They’re just at this one very narrow point, and the problematic part is that it’s a weak argument, based on all precedent.”
In the same Dec 22 notice, the Supreme Court made a special exception to allow the Duch defense to respond to co-prosecutors’ vigorous arguments against their appeal’s admissibility and criticisms of its clarity.
Defense lawyer Mr Ritheary said yesterday that he had filed a response before Monday’s deadline but that it contained only a jurisdictional argument similar to the original appeal.
“I have no more arguments, I’m sorry,” he said. “If you have some ideas you should recommend yourself some.”
The Supreme Court Chamber’s reminder was not the first sign of concern. In September, the Defense Support Section asked to file a brief in the case because of concerns that the Duch defense would limit its appeal to jurisdictional matters while ignoring international law.
And in August, the defense support section hired a prominent Israeli lawyer to assist the defense in crafting lines of appeal grounded in international law.
However, it seems that the two Cambodian lawyers used almost none of Nick Kaufman’s work.
“I always welcome him,” Mr Ritheary said of Mr Kaufman. “But I think we have our own way to represent my client. So if some people take me to another road that we think is not a good road, we don’t follow that way.”
A hearing to debate appeals against the Duch verdict is set for the last week in March.
Ms Heindel said that without a vigorous defense, the judges could easily be swayed by prosecutors’ arguments that Duch deserves a life sentence, not the 19 years he now has left to serve.
“I don’t think the [defense] has put forth any arguments that will resonate with the Supreme Court Chamber,” she said. “The prosecution has raised arguments that I think are pretty strong and if you don’t have a defense arguing against those, they might be compelling without the counterbalance of the defense’s legal perspective.”