Kaing Guek Eav, alias Duch, the former chairman of S-21 prison, where more than 12,000 people died under his watch, was pronounced guilty yesterday by the Khmer Rouge tribunal for crimes against humanity and war crimes, and sentenced to 35 years in prison, of which he will serve no more than 19.
The verdict was the culmination of a 77-day trial, and a milestone for the ECCC, marking the completion of its first case against a major Khmer Rouge figure. But the prison sentence also seemed destined to disappoint survivors of the regime, who have waited decades for this day.
In a summary judgment read out yesterday by Trial Chamber President Nil Nonn, judges said they started from a 35-year sentence, knocking five years off that figure due to Duch’s lengthy pretrial detention, which they have already ruled unlawful. The 11 years Duch has already served in jail were also subtracted from the sentence. With parole still a possibility, Duch, who is 67, could spend as few as 13 years in jail before being set free.
“What the court has decided, it’s not acceptable- I will never accept such a decision,” said S-21 survivor Chum Mey. Mr Mey lost his wife and children to the Khmer Rouge regime and was beaten and tortured at S-21, his toenails pulled out.
“Such a sentence is too slight. My tears are dropping and will continue dropping whenever Duch is not sentenced to life imprisonment. Why did the trial chamber decide like this? [Duch] flowed his tears, but I can also flow my tears like his.”
“I think people are very disappointed,” said Anne Heindel, legal adviser to the Documentation Center of Cambodia. “Considering the numbers of people involved and his high level of responsibility, the fact that this was the long-term, methodical execution of over 13,000 people, it does seem low. At this point he gets what he wants, which is to walk free when he’s around 80.”
Ms Heindel, who watched a broadcast of the verdict in Kompong Thom province, said that locals there were “stunned and frozen-faced” when they realized Duch would serve only 19 years in jail.
She called the sentence “a victory for the Duch team” and for the strategy of former French defense lawyer Francois Roux, despite the fact that Duch abandoned Mr Roux’s strategy in November and sacked him earlier this month.
Mr Roux spent months arguing for a mitigated sentence based on Duch’s remorse and his acceptance of responsibility for crimes committed at S-21, but Duch and his Cambodian lawyer, Kar Savuth, decided at the last minute to seek an acquittal.
The reading of the verdict yesterday marked Duch’s first appearance in the dock since his dramatic November about-face, when he told the court: “Release me.”
Yesterday he sat silently for the entire 70 minutes of proceedings, leaning back in his chair and sipping occasionally from a glass of water. He stood and stared impassively ahead as his sentence was read out.
More than 1,000 spectators watched from the court’s public gallery, including everyone from US Ambassador Carol Rodley to 58-year-old Kim Sary of Kompong Speu province, who dabbed back tears with a krama as she watched and listened.
“I along with 40 residents of my district came here hoping that this cruel man would be sentenced to life imprisonment for his crimes against humanity,” she said. “I hope and wish that an appeal will give him at least 30 years extra in prison for his crimes that will never be forgotten.”
These crimes, the court’s judges ruled unanimously, include murder, enslavement, torture, rape, inhumane treatment, and “willfully causing great suffering.”
The judges considered these crimes aggravated by “the shocking and heinous character of the offenses, which were perpetrated against at least 12,273 victims over a prolonged period.” But they said they would not impose a life sentence due to Duch’s cooperation with the court and his limited expressions of remorse.
The judges declined to consider whether Duch had committed murder and torture under Cambodia’s 1956 penal code, because they could not agree on whether the statute of limitations had expired on these crimes.
Although the judges said there was not enough evidence to determine whether Duch had personally committed torture or other inhumane acts at S-21, they ruled he still bore criminal responsibility for them under a legal doctrine known as “joint criminal enterprise.”
Investigating judges last year ignored prosecutors’ arguments that Duch be indicted under joint criminal enterprise, but the trial chamber in its verdict said Duch had played a key role in creating a system that allowed torture and other crimes to occur at the security centers he headed.
“As deputy [chairman] and then chairman and secretary of S-21, the accused was deeply enmeshed in this criminal system, and contributed substantially to its implementation and development,” the chamber decided.
Judges also ruled yesterday that 66 civil parties to the case-victims of Duch’s crimes who have been formally recognized by the court-would receive reparations for their suffering, although the final award was a shadow of what they had asked for.
Civil parties had demanded a number of reparations, including free health care for life and the erection of memorial stupas, but the court granted only two of their requests: the right to have their names included in the final judgment, and the compilation and publication of Duch’s expressions of remorse.
Judges said they were limited by the fact that the cost of reparations must be borne entirely by Duch, who is indigent.
Although prosecutors did not receive anything close to the 40-year sentence they asked for, Deputy Co-Prosecutor William Smith said after the verdict that the important thing was that the trial had come to a successful close.
“This is a court case, not a football match, and there’s no such thing as winners or losers,” he said, adding, “The most important thing is that this judgment meets international standards of justice.”
However, Mr Smith did point out that the judges also rejected the defense team’s request for Duch’s total acquittal and release from detention.
Co-Prosecutor Chea Leang called Duch “a perpetrator who served as chief to one of the most macabre prisons of the modern era.”
“This verdict sends a powerful and unequivocal message that those who abuse their power and victimize innocent civilians cannot act with impunity-they will be judged and they will be tried in a court of law,” Ms Leang said. “It is a somber day, one in which we remember those who died and those who survived a nightmare, but it is also a day of hope and healing”
Parties to the case have 30 days to file appeals, and Ms Leang said prosecutors were considering appealing the length of the sentence. Mr Savuth, Duch’s lawyer, said yesterday by telephone that he also planned to appeal.
Civil party lawyers said yesterday that their clients were deeply unhappy about both the sentence and the ruling on reparations.
“It seems that what has been ordered is really the most minimal, most conservative, and-it’s fair to say-the most unimaginative reparations that could have been ordered,” said British lawyer Karim Khan.
“This sort of reparation is not acceptable to the civil parties- it only appears on a piece of paper,” added Cambodian lawyer Kim Mengkhy.
Theoretically, Duch could be eligible for parole after serving two-thirds of his sentence, as Cambodian criminal law allows. This means he could walk free in just over 12 years.
Lars Olsen, the ECCC’s legal affairs spokesman, said that decisions on parole were “a matter for Cambodian domestic law” and would not be made by the tribunal.
In Cambodia, parole is determined by the president of the highest court in the province where the prisoner is being held, after consulting with a commission whose members are appointed by the Justice Ministry. It is currently unclear where Duch will serve out his sentence; the court’s co-prosecutors are currently “in dialogue with Cambodian authorities” to identify a suitable prison, according to Mr Olsen.
Justice Ministry officials could not be reached yesterday for comment on the matter. Sam Pracheameanith, chief of cabinet for Justice Minister Ang Vong Vattana, said he was unfamiliar with the case and referred questions on Duch’s parole to the ministry’s department of technical affairs, where officials declined to comment. Chiv Keng, the chief of the Phnom Penh Municipal Court, also declined to speak with a reporter.
But any parole will probably not go over well with Cambodians who are already confused about Duch’s light sentence, Ms Heindel of DC-Cam said.
“The sentence for one murder in this country is between 15 and 20 years, so that’s the perspective that people in Cambodia are bringing to this,” she said. “It’s abhorrent to them that he could eventually be released.”
Chum Mey would agree.
“When Duch is released after serving  years in prison, will Cambodians be happy?” he asked yesterday. “Nobody is going to be happy when a person who killed thousands of people just got a slight sentence.”