Prosecutors at the Khmer Rouge tribunal yesterday appealed against the 35-year prison sentence handed down in July to S-21 prison chief Kaing Guek Eav, alias Duch, insisting only a life sentence could reflect the gravity of his crimes and give justice to the Cambodian people.
Although they acknowledged that any sentence would have to be reduced to reflect Duch’s illegal pretrial detention by the Military Court, prosecutors called the original penalty “manifestly inadequate” for a man who presided over the mass killings and torture of some 14,000 people.
“It is to the Cambodian people that we ultimately must answer: their need for justice, their need for retribution, their need for reconciliation,” said British Co-Prosecutor Andrew Cayley.
“In essence, it’s not the co-prosecutors that are pleading from the bar. It’s the Cambodian people, and it is for them, your honors, that you must in this case…impose a life term reduced to no less than 45 years.”
In the second day of appeal hearings before the tribunal’s appeals chamber, known as the Supreme Court Chamber, prosecutors expanded on the main points of their written arguments: that Duch’s sentence was too low and that trial judges had erred in subsuming the individual crimes against humanity of which he was guilty under the umbrella of persecution.
While the defense team’s arguments on Monday were strident and rambling, marked by appeals to nationalism and caustic critiques of the court, co-prosecutors set a different tone yesterday, referring frequently to international precedent and laying out their arguments in clinical detail, aided by bar graphs.
Mr Cayley, a former prosecutor at the International Criminal Tribunal for the former Yugoslavia, discussed sentencing regimes at ICTY and the Rwanda tribunal, pointing out that many people accused of overseeing fewer deaths than Duch had still received life sentences.
“The prosecution is well organized and is making strong arguments,” said Anne Heindel, a legal adviser to the Documentation Center of Cambodia. “The defense has essentially said they have no intention of addressing the prosecution’s arguments, and I don’t think the defense has prepared for these arguments.”
The entire substance of Monday’s defense arguments was a claim that Duch was too junior for the court to exercise jurisdiction over him because he was not a senior leader of Democratic Kampuchea.
The defense team, which does not include an international lawyer, has refused to respond in writing to any of the prosecutors’ arguments on sentencing or crimes against humanity convictions.
Invited yesterday to give an oral response to the prosecution’s arguments, Duch’s lawyers said they would do so only reluctantly, as they still did not acknowledge the court’s jurisdiction.
“Since we are asked by the Supreme Court Chamber to respond, then we take the opportunity to do so, but it is not from our intention to respond to the co-prosecutors,” said co-lawyer Kang Ritheary.
However, Mr Ritheary did vigorously urge the court to reject any appeals to international criminal jurisprudence, attacking the prosecutors’ reliance on precedent set at the Rwandan and Yugoslavian tribunals.
“They say that international law does not apply when it’s not very helpful to them, but when it’s helpful to them they say it does apply,” Mr Cayley responded. “For these kinds of crimes, the court is obliged to look to international jurisprudence, because it’s where the guidance lies.”
The court’s hybrid nature, grounded in Cambodian law but prosecuting international crimes, has been the subject of argument since its inception. The question of precisely how international or how domestic the court is emerged in yesterday’s hearing as the most important issue.
In questioning the parties, judges homed in on the question of whether the 2009 Cambodian penal code should be taken into account when determining his sentence. The code, which took effect in December, stipulates that a mitigated life sentence cannot exceed 30 years.
Trial Chamber Judge Jean-Marc Lavergne first raised the issue last year in a dissenting opinion to the Duch trial judgment, saying judges should be guided by the new code.
Under aggressive questioning from Judge Agnieszka Klonowiecka-Milart of Poland, prosecutors argued the tribunal was not bound by Cambodian sentencing regimes, while defense lawyers immediately embraced the idea that the 2009 penal code should apply.
“The appellant purports to speak for the people of Cambodia,” Judge Klonowiecka-Milart told the prosecution. “Where does the appellant see the frustration in applying what the Cambodian people just decided to be the appropriate sentence range for crimes against humanity?”
Ms Heindel of DC-Cam said the judge had highlighted an unexpected but compelling argument.
“I guess if you see this as a Cambodian court that’s supposed to apply Cambodian law, and Cambodia comes out with a specific provision saying that for crimes against humanity in these circumstances the maximum sentence should be 30 years, then you have to apply that less severe sentence,” she said.
“This is the best defense argument that’s come out, and it’s not the defense raising it,” she added. “The judge made the best defense argument today.”
Still, S-21 survivor Chum Mey said it would be hard for victims to accept anything less than a life sentence.
“He smashed thousands of Cambodian people,” he said. “Killing thousands of people, the criminal must deserve to spend the rest of his life in prison.”