In his first courtroom appearance at the Khmer Rouge tribunal since he was sentenced in July to three decades in prison, S-21 prison chief Kaing Guek Eav, alias Duch, watched yesterday as his lawyers argued that he should be acquitted and freed.
Some 14,000 prisoners are estimated to have died under his command, but in the first of three scheduled days of appeal hearings, Duch’s lawyers insisted that he should never have been tried by the tribunal at all.
The tribunal was established to prosecute “senior leaders” and those “most responsible” for crimes committed under the Khmer Rouge regime. Parties to the case spent much of yesterday’s hearing locked in semantic debate over whether this created one category of possible indictees, or two.
The crux of the Duch defense was an argument that only senior regime leaders could truly be considered “most responsible” for the crimes of the Khmer Rouge.
“Only when those people were holding senior positions could they really have the power to render orders and commands,” said co-defense lawyer Kar Savuth, suggesting that Duch instead be dubbed a “perpetrator.”
Duch’s other lawyer, Kang Ritheary, went further, telling the court that the S-21 commandant was actually a victim of the prison.
Prosecutors and civil party lawyers said it was clear the court’s framers had created the possibility of trying two separate categories of individuals.
They also pointed out that the issue of personal jurisdiction—whether or not the court has a right to try a given individual—is customarily discussed at the beginning of a trial, not in the appeals phase.
But as recently as April 2009, Duch told the court he had no intention of challenging its jurisdiction. But at the very last day of Duch’s trial in November 2009, he abruptly changed his legal strategy, demanding to be released on the grounds that he was not a senior leader of Democratic Kampuchea.
The about-face coincided with a break with his French defense lawyer, Francois Roux, who had guided him through a years-long strategy of admitting his guilt and pleading for leniency.
Duch told the court at the time he preferred the advice of his Cambodian counsel, Kar Savuth, who boasts of his connections to Prime Minister Hun Sen’s family. Six months later, Mr Roux was fired, to be replaced later by a second Cambodian lawyer.
Since then, Duch’s defense has focused on personal jurisdiction exclusively.
Given an opportunity to make a statement yesterday, Duch was brief. “My main point in the appeal is on personal jurisdiction. So this is purely a legal matter,” he said.
In arguments by turns confusing and repetitious, the defense also repeated observations made at trial: that their client was not responsible for his actions because he was following orders and that there were other security centers during the Pol Pot regime whose chiefs are not being prosecuted.
Mr Savuth went on to make a startling reference to the government’s vocal opposition to the court’s third and fourth cases, in which prosecutors have sought to indict five midlevel military and civilian leaders.
“There has been a request for a broader interpretation of [the court’s] jurisdiction so that the co-prosecutors could really have a bigger margin to maneuver,” he said. “However, such a request was bluntly rejected by the Cambodian government.”
Two of Duch’s former students at a Kompong Cham province high school attended yesterday’s hearing. Both had testified in his favor as character witnesses, and both said they supported his appeal and hoped to see him released.
“If he had ordered the execution of Cambodians, I would appreciate his jail term but he was under orders,” said Tep Sem, 63. “The root cause of the great killing at S-21 did not stem from his idea or order. He was also a victim.”
“I really appreciated the co-defense lawyers’ argument in the hearing that he was under orders,” added Tep Sok, 65, who is no relation. “If I were him, I would do the same things or we would be killed.”
But So Song, a 57-year-old from Sihanoukville who was appealing her rejection as a civil party in the case, called that argument “ridiculous.”
“If I were him, I would let the Khmer Rouge smash my life rather than kill others,” she said.