Having Vowed To Accept Sentence, Defense Now Promises To Appeal
Whatever sentence the Khmer Rouge tribunal may hand down today, former S-21 Chairman Kaing Guek Eav will never live long enough to pay for his crimes.
If indeed the accused, known as Duch, is sentenced to 40 years as prosecutors have asked, he will spend about 1.04 days in prison for each of his estimated 14,000 victims.
Should the sentence fall lower still, in recognition of his professed contrition and cooperation with the court or of the illegality of his pretrial detention, he may have mere hours to contemplate of each of the lives he ended in torture, abasement and violence.
As prosecutors have been led to ask, given the relatively light sentences imposed at war crimes trials, what value does spending a day in jail for a murder put on human dignity?
“I want the court to sentence him to his whole life in jail and so do the others,” said Chum Mey, who survived internment at S-21. He spoke yesterday at a Buddhist ceremony held at the Tuol Sleng Genocide Museum in the capital in honor those killed there.
“If they release Duch, I don’t know what to call this court and I don’t know what this court is for.”
Tribunal spokesman Lars Olsen said yesterday that the court could not speculate on the outcome of today’s hearing. However, under Cambodian law, convicts can become eligible for early release after having served two thirds of their sentences.
Under such a formula, 40 years could become 27 years and be reduced further still in light of the 11 years that Duch has already served in detention awaiting trial, in theory allowing Duch to seek parole in 2026, when he will be 83, still younger than two of his co-defendants are today.
Such early releases are routinely approved at the Yugoslavia tribunal. The Khmer Rouge tribunal has also already ruled that Duch is owed some form of compensation, perhaps a sentence reduction, as his eight-year detention by the Military Court was found to be illegal.
Among the most widely recognized legal goals of punishing a crime are to allow for retribution, to recognize the gravity of the offense, to restore humanity to the victims of a crime and to allow for national reconciliation.
While such aims usually argue for a weightier penalty, judges applying international criminal law have consistently recognized the need to reduce sentences in light of so-capped attenuating circumstances such as convicts’ expressions of remorse and of their cooperation with the court — two points which, at least until the end of the trial, formed the centerpieces of Duch’s defense.
According to Mark Harmon and Fergal Gaynor, both prosecutors at the Yugoslavia tribunal, “a slap on the wrist of the offender is a slap in the face of the victims.”
“Low sentences, however well intentioned, not only weaken the respect for human dignity and the rule of law but may frustrate and impede reconciliation in the areas in which the crimes were committed,” they wrote in a 2007 study on the relatively light sentencing at the Yugoslavia tribunal.
However, Richard Rogers, head of the defense support section at the Khmer Rouge tribunal, said yesterday that, whatever the opinions of individual prosecutors, judges applying international law have had good reason to be more lenient than domestic courts.
In most countries, a single murder, let alone a mass atrocity, is punishable by a life sentence–something that has only ever happened three times at the Yugoslavia tribunal, where crimes similar to Duch’s have been punished.
“In the international setting, there’s often a relatively lower sentence,” said Mr Rogers. “Because these crimes are committed by a large number of people, often within a state machinery, the culpability of each individual act is seen to be less.”
“War is a very different context,” he said.
But can the court accept the mitigating factors that Duch has argued should weigh in favor of a lesser sentence?
At trial, the defense repeatedly argued that Duch had cooperated with the court by providing evidence and telling the truth. Such cooperation can be a mitigating factor at sentencing as courts seek to reward convicts who have saved the court time and resources and spared victims and witnesses the difficulty of reliving their suffering at trial.
It was doubtful, however, that by the end of trial Duch had told the whole truth or significantly relieved the prosecution of the burden of its case.
Duch minimized his own role in selecting people for arrest and execution and in devising methods of torture and interrogation, denying in fact that some of the worst methods had been used.
Hoping for a lighter sentence, Duch–who in a single day in June 1977 authorized the executions of 160 children–also began his trial by saying he was sorry for what he did.
At opening arguments, he superseded his own defense with an elaborate, half-hour statement: “I attest by law to all the crimes at S-21, in particular the torture and the carnage,” he said.
In August, he sought to commend a witness for her forthright testimony but was warned by Judge Nil Nonn, president of the Trial Chamber, that he was only heightening the agony of Bou Thon, who wept as she said her husband was murdered at S-21 and that she lost her four children to the regime, leaving her alone forever.
“I will accept without challenge all the judgments which will be made by this chamber,” Duch said. “I am humble before all the Cambodian people and I would like the Cambodian people to condemn me to the strictest level of punishment.”
Now, Duch does not want punishment, he wants to go home.
“Release me,” he told the court in the dying moments of his trial in November.
This month he fired his French lawyer, Francois Roux, and through his Cambodian lawyer, Kar Savuth, announced that he is seeking an acquittal to engage a Chinese lawyer who better understands the communist mindset of the Khmer Rouge.
“If that’s the case, [Duch] should get no — no — mitigating factors in relation to his sentence, none at all,” Deputy Co-Prosecutor William Smith told the court after Mr Savuth first said in closing arguments that his client should be acquitted.
Civil parties, who were denied the right to argue in favor of a heavy sentence for Duch, have accused him of hypocrisy and rejected all of his apologies.
Mr Mey, who survived Tuol Sleng, said at yesterday’s ceremony at Tuol Sleng that Duch had caught himself in his own web.
“Duch is always zigzagging,” he said. “First he said he did it on his own. Then he said his superiors told him to do so. In court, I’ve seen him bow to the judges but not to the people.”
Chum Sarath, who lost two brothers at S-21, told the court in August that he also rejected Duch’s expressions of remorse.
“He did not pray for the souls of those who died to rest in peace, he prayed to make himself feel better,” Mr Sarath told the court. “I will not be able to accept this ungenuine apology.”
Mr Rogers of the tribunal defense office said yesterday that asking for an acquittal was not necessarily a denial of the facts of S-21.
“It’s going to be very difficult to satisfy the victims with anything less than a life sentence but the judges have to consider a whole range of factors” he said, noting that Duch had already spent more time in detention than all of his co-defendants combined.
“Even if he did ask to be released, it doesn’t mean he doesn’t accept responsibility, it doesn’t mean he’s not sorry,” Mr Rogers said.