It was a scene that perfectly encapsulated the role that defendant Duch has played so far in his own trial at the Khmer Rouge tribunal.
After a day of evidence from civil party Ly Hor, who claimed to have been held and tortured at the S-21 detention center under his previous name Ear Hor, the former prison head stood before the court with a fistful of documents.
Yes, he acknowledged, someone named Ear Hor was held at S-21. Yes, he was tortured. But, “according to these documents, Comrade Ear Hor already died.”
As witnesses and civil parties are heard in the first case before the tribunal, Duch, born Kaing Guek Eav, sits behind his lawyers, a massive binder full of documents at his side. While the court questions people with shaky memories of events more than 30 years past, Duch and his binder have played a growing role in the court, raising concerns among some parties.
Each day at trial, Duch is allowed to offer his perspective on the day’s proceedings, and is often called upon to clear up confusion. On Wednesday, when civil party Chin Meth was unable to say where she had been imprisoned and tortured before being condemned to hard labor at Prey Sar, Duch announced that he had found a confession proving that she was held in a detention center operated by division 450, the wing of the Khmer Rouge that she belonged to.
“He’s been doing this all along; he’s a bureaucrat,” said Henri Locard, a scholar of the Khmer Rouge era who has been observing the trial. “He always has his own references. He’s acting like his own lawyer.”
Youk Chhang, director of the Documentation Center of Cambodia, said Sunday, “It’s like he’s giving a lecture to the audience, and like he’s controlling the history of Tuol Sleng.”
Under the French legal system, elements of which has been incorporated into the unique hybrid structure of the Khmer Rouge tribunal, once a defendant has agreed to speak before the court, he or she can be called upon at any point for clarification.
Silke Studzinsky, a civil party lawyer, said Sunday that as the trial progresses, Duch “appears somehow like an expert witness.”
She said that is an inappropriate position for a person whose interests lie in diminishing his own guilt. “I do not agree to give him such space and room,” she said.
However, she added, “The problem is of course, who else is able to speak and to have expert knowledge about Tuol Sleng?”
Trial Chamber President Nil Nonn said Sunday that the role taken by Duch is “normal.”
“All parties had the right to see all of the documents in the case file,” he said. “[Duch] can read them if he has the time to read.”
Cambodian Co-Prosecutor Chea Leang agreed that Duch’s active role is not unusual, and said Sunday that every party has the right to show and view documents during the trial. “The right to show [documents] apply to all parties, but the judges have the right of considering whether or not those documents will be accepted as evidence.”
International Deputy Prosecutor William Smith referred questions Sunday to Co-Prosecutor Robert Petit, who said that he would not speak with reporters on the weekend.
Since first entering the tribunal’s custody, Duch has cooperated with the court and admitted guilt to a raft of offenses. Now, his role as an unofficial investigator into his own case raises questions about how the tribunal’s second case will proceed. That file adds four more Khmer Rouge defendants: former foreign minister Ieng Sary, former head of state Khieu Samphan, former social action minister Ieng Thirith and Brother Number Two Nuon Chea.
“As far as we know, we’ve been told the four others are not cooperating with the court,” Mr Locard said.
That could make life more difficult for defense lawyers, he added. “They will not get very much help from their clients.”
Michael Karnavas, international lawyer for Ieng Sary, said Sunday by e-mail that he would not speculate on how his client’s participation in the court would compare to Duch’s.
“Every accused has certain rights. How those rights are exercised is up to the accused…. Duch has chosen a particular path which I can only assume fits his objectives, whatever they may be,” he said.
For his part, Mr Chhang said that he would like to see a more focused investigation by the tribunal in preparation for the second case.
“All the primary sources are available everywhere,” Mr Chhang said, referring to the stacks of documents held by his own DC-Cam, as well as the memories of scores of survivors of the Pol Pot regime still living throughout Cambodia.