Sentence, Not Guilt, Is Battle At S-21 `Trial

As the S-21 trial resumes today at the Khmer Rouge tribunal, the ac­cused already appears to have conceded one battle: By Kaing Guek Eav’s own admission, he was re­sponsible for a secret prison that as many as 14,000 people entered but didn’t leave alive.

What his lawyers have not conceded, however, is whether the tribunal’s youngest defendant, better known as Duch, 66, should himself be deprived of his freedom forever.

Indeed, litigation over the sentence, and whether his victims can seek to maximize it, has already begun.

Held for nine years and nine months without trial, or nearly three times as long as the Demo­cratic Kampuchea regime itself, Duch apparently suffered human rights violations of the kind that at other tribunals have turned life sentences for genocide and crimes against humanity into far shorter prison terms.

To his surviving victims, the thought that Duch could serve a reduced sentence, walking out of prison a free man in as little as 10 years, can only be harrowing.

“The pain would fly into the air,” Vann Nath, who was spared elimination at S-21 so he could paint portraits of Pol Pot, said Friday. “It is a bad dream of ours.”

Foreseeing the coming conflict with victims and their lawyers, the defense asked last week that all civil parties be completely forbidden from arguing or bringing forward testimony about Duch’s sentence.

“The defense argues that before the ECCC the civil parties are not competent to argue about the sentence and so should not be allowed to have witnesses appear to deal with this question,” defense lawyers Francois Roux and Kar Savuth wrote in response to a civil party request for expert testimony on sentencing.

This is a matter strictly for the prosecution, not victims, they said in a pleading filed March 24.

Civil party lawyer Alain Werner, one of a team of attorneys representing 38 victims at the S-21 trial, said Sunday that he believed civil parties should have their say about a sentence which, if too short, could leave victims feeling shocked and traumatized.

“Nothing in the legal texts bars the civil parties from arguing about the sentence,” he said.

At the International Criminal Tribunal for Rwanda, where sentences have typically been heavier than at the Yugoslavia tribunal at The Hague, Roux obtained the court’s first acquittal. He also defended two crimes against humanity suspects who, like Duch, admitted their responsibility in court. They received sentences of only six and seven years each.

The Rwanda tribunal has also reduced the sentences of detainees deemed to have been held without trial for too long—detentions that were far shorter than Duch’s.

Due to a three-year pretrial detention, that court initially ordered the release of genocide suspect Jean-Bosco Barayagwiza, finding that his rights had been so seriously violated he could not be fairly tried.

Appellate judges later allowed the trial to go forward, but at sentencing in 2003, Barayagwiza’s life sentence was reduced to only 35 years. This was further reduced with credit for time served to 27 years and three months.

In 2005, the two life sentences for genocide imposed on Juvenal Kajelijeli were instead reduced to 45 years in light of his 306-day detention, deemed excessive by appellate judges.

Judges have also further re­duced sentences to “remedy” violations of detainees’ rights, such as improper detention and the denial of counsel.

Anne Heindel, a legal adviser to the Documentation Center of Cambodia, said Sunday that reducing Duch’s sentence for time served would be rather straightforward. Finding that it should be further reduced to compensate the accused for nearly a decade of detention without trial will require judges to determine whether or not the Khmer Rouge tribunal bears even partial responsibility for the actions of Cambodian authorities.

A sentence of perhaps 35 years, reduced for time served and again in recognition of Duch’s previous detention, though not impossible, could still be shocking, she said.

“I think it could be inappropriate for this court not to recognize or remedy the violation of his rights,” Heidel said.

“It’s appropriate for them to feel the need to do something. They’re going to have to explain to people what that is,” she added, noting that when Duch had first claimed his rights were violated at a 2007 bail hearing, the public gallery had laughed in disbelief.

“It is shocking to people. People are not going to understand,” he said.

   (Additional reporting by Prak Chan Thul)


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