Two days after the war crimes trial of Kaing Guek Eav, alias Duch, ended in unexpected fashion with the accused making a last-minute request for an acquittal, observers and parties to the trial were still trying to make sense of what prompted Duch’s reversal and his defense team’s apparent implosion.
Guided by his French defense lawyer, Francois Roux, Duch has effectively pleaded guilty in the hopes of a reduced sentence. But Roux’s Cambodian counterpart, Kar Savuth, split from this strategy at the last minute, saying Duch was not guilty and offering the court a belated and legally flawed jurisdictional argument for his client’s release.
The result was a schizophrenic defense in which Duch’s international and national lawyers continued to advance utterly opposing arguments—one pleading for a mitigated sentence, the other demanding acquittal—until a confused bench demanded on Friday that Duch himself clarify his stance. The accused responded unequivocally: “Release me.”
There is no mechanism at the Khmer Rouge tribunal to resolve disputes between defense lawyers, as there is for prosecutors and investigating judges, because the defense is charged with working at the instructions of a client.
“The problem comes when you have these extremely complex cases and also some serious language difficulties, and then…it may not always resolve the differences between the lawyers, because you may not receive clear instructions from the client,” Richard Rogers, head of the tribunal’s defense support section, said yesterday.
Mr Roux has criticized the tribunal’s system of co-equal Cambodian and international lawyers, saying that an arrangement in which one lawyer takes the lead would have been better.
But others insist that the ECCC’s structure is not dysfunctional and that the self-destruction of the Duch defense was an aberration.
“It’s not a problem with the court, it’s just the human dynamics of defense counsel representation,” David Scheffer, former US Ambassador-at-Large for War Crimes and a key negotiator in the creation of the ECCC, said in an interview on Friday.
Mr Scheffer speculated that Duch’s lawyers might have clashed because they come from very different educational and cultural backgrounds.
“In the future the court probably will be more focused on trying to get this equation right,” he added.
Michael Karnavas, international co-lawyer for former Foreign Minister Ieng Sary, wrote in an e-mail on Saturday that although he thought a lead lawyer system might be ideal, his experience working with a co-equal Cambodian lawyer had been “positive and constructive.”
“Whether you are Lead or Co-, you need to find ways to work with your team members,” Mr Karnavas said.
Anne Heindel, a legal adviser to the Documentation Center of Cambodia, said that while she thought last week’s chaos was “not a positive development,” she did not anticipate any changes to the ECCC’s rules.
“You’re not going to have any other system,” she said. “It’s actually the Cambodian lawyer who was envisioned as the dominant player, and the international lawyer was envisioned as coming in to provide assistance. It’s hard to imagine any other possibility when the court is part of the national legal system.”
AFP reported this weekend that Mr Roux had attributed the gulf that opened between himself and Mr Savuth to “Cambodian government interference in the trial,” but Mr Roux denied this report yesterday.
“I did not say that,” he said, adding that he has “no political interpretation” of his co-lawyer’s surprising final pleadings.
Mr Savuth, whose business card claims he is a lawyer to the family of Prime Minister Hun Sen, said yesterday that he was seriously ill and could not comment.
Silke Studzinsky, a civil party lawyer, wrote in an e-mail yesterday that her clients felt vindicated that the accused finally showed the court a more defiant and less contrite Duch.
“After this first shock a lot of them are happy about this sad end,” she said, “because it strongly confirms their view that he is not at all remorseful.”
“They are now 100 percent sure that it was only a strategy and not sincere,” she added. “He has shown his real face.”
S-21 survivor Vann Nath agreed that Duch’s reversal only confirmed his conviction that his jailer feels no remorse for the more than 12,000 deaths at the Khmer Rouge prison.
Mr Nath said he has put his faith in the court, however it responds to Duch’s final request for release: “Duch lives under the law, and if the law says he is not guilty, it is ok. And as we are normal citizens, we will just have regret.”
(Additional reporting by Neou Vannarin and Douglas Gillison)
