The only Khmer Rouge figure to be prosecuted by a United Nations-backed war crimes tribunal is arguing that his conviction should be overturned.

Lawyers for Kaing Guek Eav, also known as Duch, told the tribunal Monday that their client’s July 2010 conviction for crimes against humanity should be set aside because the former chief of a notorious prison and torture centre wasn’t a senior leader in the brutal regime.

They claim the Extraordinary Chambers in the Courts of Cambodia (ECCC), as the hybrid tribunal is officially known, has no jurisdiction to put anyone on trial but the most senior leaders of the Khmer Rouge.

Just because he had people above him giving him orders isn’t going to get him out of it.

“Duch was just a minor secretary who had no real authority to make decisions or to do anything contradictory to the orders from the upper echelons,” said Kar Savuth, one of Duch’s two co-counsels. “Therefore, he could not be considered among the most responsible persons.”

Savuth repeatedly asked for Duch to be released, saying that his client could not have violated international humanitarian law – because there was no such thing in Cambodia during the Khmer Rouge regime.

“There was no court of law,” he said. “And if there was no law, there was no crime.”

The Khmer Rouge are blamed for the deaths of at least 1.7 million people during its almost four-year rule – more than one-fifth of the country’s population at the time. Yet the question of who should be held criminally responsible has plagued this South-east Asian nation ever since the ultra-Maoist movement was toppled in 1979.

The Khmer Rouge cadres that are still alive are concentrated in areas along the Thai border – a situation that can see perpetrators living and working alongside victims.

Authorities here have urged reconciliation between former Khmer Rouge and the victims of the regime, stipulating that only senior leaders and those most culpable would be tried as part of the war crimes tribunal.

From teacher to prison chief

Duch, a former schoolteacher, was placed in charge of S-21, a one-time high school in central Phnom Penh that was converted into a detention centre for perceived enemies of the regime. Duch has admitted to overseeing a facility that interrogated, tortured and ultimately killed thousands; of the minimum 12,273 people who passed through its halls, only a handful survived.

Yet Duch was not part of the senior leadership of the Khmer Rouge – a point his lawyers have tried to reinforce during appeal proceedings this week, portraying him as a subordinate merely following orders from the regime’s upper brass.

Instead, they questioned why the heads of some 195 other prisons that were reportedly located throughout Cambodia have not been prosecuted.

“What happened to the other 195 prisons? Did those prisoners become millionaires? Why doesn’t the court find justice for them?” lawyer Kar Savuth said.

But court prosecutors say the defence argument is misleading and inadequate.

The tribunal is mandated to prosecute “senior leaders” as well as “those most responsible” for the crimes of the Khmer Rouge.

That means, prosecutors say, that the court is well within its rights to pursue other Khmer Rouge figures, if they are implicated as part of the most serious crimes.

Co-prosecutor Chea Leang said S-21, also known as Tuol Sleng, was more important to the party’s leadership than the other prisons scattered around the country. It was here, she noted, where key interrogations were carried out, including on Khmer Rouge officials suspected of betraying the regime.

“S-21 had the most power compared to other centres across the nation,” Leang said.

Some observers say the defence has failed to offer a compelling legal argument.

Anne Heindel, a legal advisor to the Documentation Centre of Cambodia, an NGO, said the court is within its mandate to try Khmer Rouge figures beyond the senior leaders.

“Duch certainly had enough responsibility to be in charge of Tuol Sleng and be there when almost 14,000 people were killed,” Heindel told IPS. “Just because he had people above him giving him orders isn’t going to get him out of it.”

Country awaits trial of senior leaders

Duch was offered an opportunity to address the court Monday but said little. Dressed in a light-coloured coat over a blue button-down shirt, he stood briefly only to authorize his lawyers to act on his behalf.

The ECCC’s main Trial Chamber found Duch guilty of crimes against humanity last July.

He was sentenced to 35 years in prison, but judges reduced the sentence by 5 years because he had been illegally detained. Because of time already served, the sentence meant that Duch was to spend 19 more years in prison.

Duch is urging the tribunal to overturn his conviction altogether and release him. The prosecution is also appealing the original ruling, arguing that the sentence was too low. Civil parties, made up of Khmer Rouge victims, have also appealed. The proceedings are scheduled to last one week, with a decision expected to take months.

Duch was the first Khmer Rouge figure to be convicted by the court. Four senior leaders have been indicted for crimes against humanity and genocide and are currently awaiting trial as part of the tribunal’s second phase. Court officials say the trial should get underway later this year.


This story was first published by IPS.