Justice for Cambodia? The Kaing Guek Eav verdict

The verdict is in. Kaing Guek Eav, aka Comrade Duch (68) of the Khmer Rouge was convicted of war crimes, crimes against humanity and grave breaches of the Geneva Conventions by the trial chamber of The Extraordinary Chambers in the Courts of Cambodia on 26 July 2010.

It has been a long time coming. The communist Khmer Rouge regime murdered, tortured and starved millions of their own people. The majority of current government ministers were part of the regime. The tribunal at the ECCC has been subject to political interference, incompetence, legal ploys, confessions and retractions. What makes the process more difficult is the hybrid nature of the ECCC, which made any convictions doubtful.

Judgment against Kaing Guek Eav (alias Duch) – July 26, 2010 – English from Cambodia Tribunal Monitor on Vimeo.

Political interference in the work of the hybrid UN Assistance to the Khmer Rouge Tribunal and the ECCC has been constant. Many of the positions in the ECCC were obtained by political patronage. Relations between the two entities have been strained and there is speculation that the powers that be want to delay convictions until the five co-accused die.

Certainly, the Prime Minister of Cambodia Hun Sen has voiced opposition to extending the mandate of the ECCC. In a public statement in March 2009, he said

I would pray for this court to run out of money and for the foreign judges and prosecutors to walk out

He referred to the highly improbable scenario that the tribunal would provoke a civil war. His Cambodian People’s Party won 98% of the vote in commune elections in 2007. Hun Sen’s family and close associates have consolidated power and the main opposition leader, Sam Rainsy, has once more had to flee the country. Hun Sen holds absolute power. Civil war is unlikely.

To date, five people have been arrested to answer charges of genocide, crimes against humanity and war crimes. They are Kaing Guek Eav aka Duch, Nuon Chea aka Brother Number Two, Ieng Sary, Ieng Thirith (aka Khmer Rouge First Lady) and Khieu Samphan.

Duch is the first conviction. His case was the least fraught with difficulties. He converted to Christianity after the fall of the Khmer Rouge and reportedly wants to go to heaven. His evidence is his confession. Indeed, his evidence is the linchpin in further convictions.

From May 1976 until the fall of Phnom Penh in January 1979, all prisons were under his direct control, including the infamous Tuol Sleng or S21 prison camp. The mandate was simple: to cleanse the ranks of the Khmer Rouge of suspected enemies of the revolution. In addition, Duch was appointed director of the Santebal – the keeper of the peace – a special branch of the regime dedicated to internal security. In the next two years, an estimated 15 000 to 20 000 Cambodians were imprisoned at Tuol Sleng. Only fourteen Cambodians survived. No foreign nationals survived.

By December 1976, Tuol Sleng had run out of places to dump the corpses of prisoners and the killing was transferred to Choeung Ek extermination centre. Bullets were in short supply so hammers, axe handles, spades, nails or sharpened bamboo sticks were used. Many victims were required to dig their own graves.

One of the survivors, Van Nath, testified as to life inside the prison:

The conditions were so inhumane and the food was so little. I even thought eating human flesh would be a good meal… We were so hungry, we would eat insects that dropped from the ceiling. We ate our meals next to dead bodies, and we didn’t care because we were like animals.

An estimated 2.2 million of a population of 7 million died through executions, torture, starvation, disease and overwork during the three years that the Khmer Rouge held power.

Duch was found guilty and was sentenced to 35 years in prison for crimes against humanity and war crimes. He has been imprisoned by order of a military court since 1999 and this detention was ruled illegal and 5 years was knocked off his sentence. To date, he has served 11 years in illegal detention and this too was taken into account. The result of all this is that, Comrade Duch will serve a mere 19 years for overseeing the execution of 15 000 to 20 000 people.

The Cambodian people have been waiting 30 years for justice. This conviction is important in legal and symbolic terms. However, while the conviction is historic, the sentence has not been well received. Theary Seng, whose family was murdered under the Khmer Rouge regime, spoke to reporters after sentencing:

Crimes against humanity has been reduced to 11 hours per life. Besides shock, what else can one feel at the moment?… What is unacceptable is to envision him as a free man even for one minute in the public sphere. He should be receiving many life sentences.

Many have expressed similar sentiments.

The fact remains that Duch did not mount much of a defence. He cooperated with the ECCC and apologised several times to the judges. Despite a last minute plea to be released, his trial was uncomplicated. The four remaining suspects have mounted an aggressive defense. Their legal teams have challenged the court on jurisdiction, fairness and issues of secrecy around the pre trial investigations. There is no fixed date for the trial of Case 002 but it is expected to begin before the end of 2010.