Man or Monster?: The Trial of a Khmer Rouge Torturer
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Man or Monster?: The Trial of a Khmer Rouge Torturer
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Product Details
| ISBN-13: | 9780822373551 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 11/08/2016 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 360 |
| File size: | 4 MB |
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Man or Monster?
The Trial of a Khmer Rouge Torturer
By Alexander Laban Hinton
Duke University Press
Copyright © 2016 Duke University PressAll rights reserved.
ISBN: 978-0-8223-7355-1
CHAPTER 1
Man
(OPENING ARGUMENTS)
"I wish to apologize."
Standing straight while reading a prepared statement held at eye level, Duch offered the first public apology by a high-ranking Khmer Rouge. "I do not ask that you forgive me here and now," he continued, glancing periodically at a dozen victims staring at him from across the courtroom. "I know that the crimes I committed against the lives of those people, including women and children, are intolerably and unforgivably serious crimes. My plea is that you leave the door open to me to seek forgiveness."
Duch made this apology on March 31, 2009, the second day of his trial, while standing in the court's horseshoe-shaped dock. As he spoke, he pressed the tips of the four fingers on his left hand, mangled in a hunting rifle accident in the early 1980s, against the dock's small table for balance. Sitting behind him, a security officer watched Duch with half-closed eyes, Buddha-like. The apology was part of a 20-minute statement Duch made after the prosecution had completed its opening arguments.
In the 500-seat spectator gallery, located behind the court's tall, curving glass back wall, the audience listened intently. The room was packed with a range of people: ECCC officials, Cambodian students wearing blue shirts, Muslim Chams, NGO staffers, students from abroad, and Cambodians from different walks of life who wanted to get a firsthand look at this man who had run what had become the symbolic center of the Cambodian genocide. A large contingent of domestic and international media was also covering the story.
Duch was separated from the people sitting in the front row of the gallery by just half a dozen meters and the protective glass wall. Everyone in the gallery gazed at Duch as he staked his claim to humanity, the former watcher now watched.
Day 1, March 30, 2009
BACKDROP
Duch's trial had opened the previous day to the flash of cameras as three photographers rapidly moved about the courtroom taking shots of him from different angles. Sitting in the gallery, I thought of how Duch's prisoners had their mug shots taken on arrival at S-21. But, as observers sometimes pointed out, those victims never had a trial. There were no courts during DK. The fact of arrest implied guilt, since the Party supposedly did not make mistakes. Wearing a long-sleeved dress shirt, Duch gazed back, unsmiling, at the photographers, his brown eyes lit by flashes of light.
Then Duch's trial began, as Judge Nil Nonn intoned: "In the name of the Cambodian people, and the United Nations, and pursuant to the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea ..."
The trial was to begin and end in controversy. Judge Nil, whose black hair was often disheveled, was himself involved. From the very beginning of negotiations between the United Nations and Cambodia over the creation of the trial, various parties had raised concerns about the corruption and politicization of the country's judiciary.
Judge Nil, who would efficiently lead the proceedings, had been appointed president of the Trial Chamber. His official court biography notes that he had been president of Cambodian courts in Battambang and Siem Reap province prior to joining the ECCC. A professor of law, he obtained his degree at Ho Chi Minh City University, receiving additional training in international law and human rights from organizations such as the United Nations Development Programme (UNDP).
In 2002, a PBS documentary filmmaker had interviewed Judge Nil, who complained about criticism of the Cambodian judiciary even as he admitted taking bribes while serving on the Battambang court, "but only after a case is over." The filmmaker explains: "After all, he earns only $30 a month, not nearly enough to provide for his family. What else, he asks with that toothy grin, is he supposed to do?"
While Judge Nil later denied having made these statements, he acknowledged in another interview that Cambodia's judiciary suffers from a range of problems, including lack of independence, government interference, and fair trial rights violations — even if such problems are also linked to insufficient resources, training, and experience. He noted his determination to help fix these problems.
It was precisely because of such issues that the UN had initially advocated for an international tribunal. In the same 1997 resolution that requested that the UN secretary-general respond to any Cambodian appeal for assistance in holding a tribunal, the UN Commission on Human Rights expressed "serious concern" about a recent report of its special representative that was highly critical of the "continuing problem of impunity," including the Cambodian judiciary's lack of "independence," "impartiality," and proper "due process." Such concerns about "international standards of justice" were echoed in the "Group of Experts" report, by diplomats, in subsequent UN statements, and in human rights and NGO reports and press releases.
In early 2007, the Open Society Justice Initiative sparked a major controversy by revealing that the UNDP, which oversees donor funding for the ECCC, was carrying out an audit of the tribunal's finances, in part because of allegations that the Cambodian judges at the ECCC were sending kickbacks to their political patrons, charges the Cambodian government declined to investigate. While an independent investigation found that as a result of a number of reforms undertaken during the following year, the ECCC had adequately addressed the issues raised in the UNDP report, corruption allegations continued to surface. These issues were part of the backdrop of the Duch trial.
* * *
All institutions have performative rituals through which they assert their legitimacy, and the Duch trial was no exception. Thus, in the first few moments of the hearing, Judge Nil quickly asserted the court's legitimacy by noting its foundation on international and Cambodian law and its jurisdictional mandate, which empowered him and his fellow jurists, whom he named, to oversee the proceedings.
The domestic and international composition of the judges and the use of both international and Cambodian law were just two of many signs of the hybridity of the ECCC, a point also highlighted by Judge Nil's opening remarks. At a long table to Duch's front right sat Duch's defense lawyers, while to his far front left were the co-prosecutors. Immediately to Duch's left sat the civil parties, who were participating fully in the proceedings, something never before allowed at an international or hybrid tribunal. Two long tables were positioned across the wall facing Duch. Eight court clerks and functionaries were stationed at the first table. Above them on an elevated platform sat the five judges of the Trial Chamber, all of whom, like Judge Nil, wore flowing red gowns and long white kerchiefs.
Three emblems hung on the high wall behind the judges. The flags of the UN and Cambodia were affixed to the left and right sides of the wall, respectively. Between them hung a larger white flag with the ECCC logo, a blue ink drawing of a wreath of olive branches — the symbol of the UN — partly encircling an Angkorean-era Cambodian judge sitting cross-legged on a dais and grasping with his right hand an upright sword. On an outside band, the ECCC flag listed the court's official name, in Khmer, and abbreviations, in English and French; these were the three official languages of the tribunal. All of the judges wore this emblem, signifying the court's hybridity, on circular patches affixed on the left sides of their robes.
The hybridity of the court was also evident from the composition of the court personnel. Three of the five judges were Cambodian; the other two, sitting to the immediate right and far left of Judge Nil, who sat at the center of the table, were from New Zealand (Silvia Cartwright) and France (Lavergne). Cambodian judge Sokhan Ya sat to Judge Nil's left and Ottara You to his far right. Similarly, the prosecution, defense, and civil parties were a mix of Cambodian and international lawyers.
* * *
This hybrid structure was the outcome of a long process of negotiation that began when, following the April 1997 UN resolution offering international assistance, the co–prime ministers of Cambodia, Hun Sen and Norodom Ranariddh, sent a June 21, 1997, letter to Kofi Annan asking for UN assistance in "bringing to justice" those responsible for the Khmer Rouge genocide.
In response, Kofi Annan appointed a "Group of Experts for Cambodia" to explore the feasibility of holding a tribunal. On February 19, 1999, this group issued their report, which recommended establishing in a nearby country an ad hoc international tribunal, modeled after the international criminal tribunals in the former Yugoslavia and Rwanda to try former Khmer Rouge leaders "for crimes against humanity and genocide committed from April 17, 1975 to January 7, 1979."
By the time the report was issued, however, the political situation in Cambodia had changed with the death of Pol Pot on April 15, 1998, amid the mass defection of his former followers. Ieng Sary defected with a host of Khmer Rouge soldiers in 1996. As part of a deal, he was given an amnesty and pardon.
Two other senior Khmer Rouge, Nuon Chea and DK head of state Khieu Samphan, both of whom would be tried in Case 002, defected to the government in December 1998. The last Khmer Rouge holdout, General Ta Mok, was arrested the following year, an event that signaled the end of the Khmer Rouge. Ta Mok joined Duch in prison, where he died, untried, on July 21, 2006.
In the name of reconciliation, the Cambodian government backtracked, alternatively suggesting that the country hold a truth and reconciliation commission, a domestic trial of just Ta Mok, and a predominantly national tribunal. The negotiations that ensued between the UNand the Cambodian government were characterized by stops and starts as the two parties worked to create a new type of transitional justice mechanism, a "mixed" or "hybrid" tribunal, a model that would be used in East Timor, Sierra Leone, and Kosovo before the ECCC finally commenced.
The two sides signed a June 6, 2003, agreement establishing a hybrid tribunal that would be a special chamber within the Cambodian court system and use a combination of domestic and international law. In addition to the five-judge Trial Chamber overseeing Duch's hearing, the ECCC has a five-person Pre-Trial Chamber and a seven-person Supreme Court Chamber (SCC), each of which has a majority of Cambodian judges but requires for a decision a supermajority that includes the vote of at least one international judge. In addition, there are Cambodian and international co-investigative judges, and civil parties and defendants may select Cambodian and, if they wish, international lawyers. The ECCC, consisting of seventeen Cambodian and twelve international judges and lawyers, began operation on July 3, 2006. It took almost three more years for Case 001, Duch's trial, to start.
* * *
After completing his prefatory remarks, Judge Nil asked Duch to stand. With a court officer on each side, Duch walked to the dock, refusing at one point to take the arm of a guard. Judge Nil, speaking in Khmer, began to ask him a series of informational questions, to which Duch responded in a low voice:
QUESTION: What is your name?
DUCH: My name is Kaing Guek Eav alias Duch. ...
QUESTION: What [was] your occupation before you were arrested?
DUCH: I was a teacher. ...
QUESTION: Do you have a wife?
DUCH: I have a wife. We got married on the twentieth of December 1975 but she died on the eleventh of November 1995.
QUESTION: How many children do you have?
DUCH: Four.
Like him, his children were teachers.
After finishing his background questioning, Judge Nil informed Duch of his right to be defended by a lawyer, to remain silent, to avoid self-incrimination, and to be informed of the charges. The irony was not lost on the observing survivors, who would complain about how well Duch was being treated in contrast to his victims.
* * *
Judge Nil next asked two court clerks to read excerpts from the "closing order," a document outlining the findings of the Office of the Co–Investigating Judges (OCIJ) and the charges against Duch. The closing order was the product of a long investigatory process that had begun almost immediately after the establishment of the court in 2006 and followed given procedural guidelines.
Like all courts, the ECCC is governed by specific statutes. In the case of the ECCC, three key documents delineate the court's mandate, jurisdiction, composition, and applicable laws. The June 6, 2003, agreement between Cambodia and the UN establishing the court laid out the broad parameters of the ECCC. The following year, these principles were codified in Cambodian law. On June 12, 2007, the court published a seventy-one-page set of "Internal Rules" that detailed how the principles were to be put into practice. It took court officials almost an entire year to finalize this document, which, by the end of the Duch trial, had been revised eight times.
While blending in elements of the common law tradition, these three documents are premised on the assumption that, in accordance with Cambodian legal tradition and its French colonial influence, the ECCC would largely operate in accordance with the civil law tradition. In contrast to the common law tradition, which is found in Great Britain and many Anglophone countries, including the United States, civil law predominates in continental Europe and many of its former colonies, including Cambodia.
If the common law tradition is often characterized by the importance of evidentiary oral testimony, case-based legal precedent, and trial by jury, the civil law tradition emphasizes written texts, abstract law, and judicial inquisition. To put it another way, whereas in the common law tradition the jury evaluates the facts of a case and the judge arbitrates in terms of the law, in civil law courts judges usually do both. Along these lines, the proceedings at the ECCC are largely driven by the judges, and the role of the prosecutor is, if important, emphasized less than in common law practice.
The ECCC internal rules stipulate that the Office of the Co-Prosecutors (OCP) is entitled to conduct preliminary investigations. The case is handed over to the OCIJ once the OCP has gathered sufficient evidence to make an "introductory submission." At this time, the OCP transfers its "case file" of evidentiary material to the OCIJ.
The OCIJ conducts further investigations and continues to build the case file. Once the OCIJ investigation is complete, the OCP is invited to make a "final submission." The investigative process concludes with the OCIJ's "closing order," which calls for dismissal or indictment. If the case proceeds, the OCIJ transfers the case file to the Trial Chamber, which will commence the proceedings, pending any appeals.
As opposed to focusing on the evidence introduced during a trial as in common law systems, a civil law court, such as the ECCC Trial Chamber, will have the bulk of the relevant evidentiary material in hand by the start of the trial. The Trial Chamber judges then take the lead in structuring the proceedings, deciding what testimony and evidence will be introduced, questioning witnesses, apportioning time, and rendering a verdict.
Thus, in the Duch case, the OCP began its investigation on July 10, 2006, almost immediately after the court began operation. A year later, on July 18, 2007, the OCP made its introductory submission to the co-investigating judges, Cambodian jurist You Bunleng and his French counterpart, Judge Marcel Lemonde. They detained Duch less than two weeks later, eventually charging him with "crimes against humanity" and "grave breaches of the 1949 Geneva Conventions." After the OCP made its final submission on July 18, 2008, the OCIJ issued the closing order indicting Duch on August 8, 2008, and transferred the case to the Trial Chamber. The closing order provided a rough outline of the facts that had emerged during the case, including information about the origins, structure, and functioning of S-21. At this point, the case file included twenty-one pretrial interviews with Duch.
* * *
The victims proved to be a strong presence at Duch's trial. But they would have to wait before having their chance to speak. On the first morning of the trial, perhaps a dozen civil parties sat inside the courtroom behind their lawyers, on the opposite side of the room from Duch. Because there were not enough seats, the civil parties took turns, rotating between the courtroom and the gallery.
They listened intently as the closing order was read, tracing out Duch's path to S-21 and the brutalities that took place there. At several points the closing order referenced their experiences. Duch rarely looked up, his head bent, perhaps reading along.
At the end of the lunch break, I saw Chum Mey, who, along with Vann Nath, was one of a handful of prisoners who survived S-21. Chum Mey had been spared because he was a mechanic and could fix generators on the compound. Despite his age, Chum Mey remained agile and sharp, his mouth set in a determined line. He almost always carried a small notebook and wore a short-sleeved dress shirt, with a pen clip protruding from the pocket. He had been waiting years for this trial to begin.
During a break, I asked him what he thought of the proceedings. Smiling, Chum Mey told me that he was very happy with the way things were going. Then he paused, his smile fading, as he continued, "I cried and cried when they read the part [of the closing order] about how I was tortured with electrical shocks."
Chum Mey would return to the court almost every day until Duch was judged.
(Continues...)
Excerpted from Man or Monster? by Alexander Laban Hinton. Copyright © 2016 Duke University Press. Excerpted by permission of Duke University Press.
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Table of Contents
The Accused, Fact Sheet, Public Version—Radacted 1Foreground. Monster 3
Part I. Confession
Interrogation. Comrade Duch's Abecedarian 41
1. Man (Opening Arguments) 44
2. Revolutionary (M-13 Prison) 68
3. Subordinate (Establishment of S-21) 90
4. Cog (Policy and Implementation) 103
5. Commandant (Functioning of S-21) 130
6. Master (Torture and Execution) 142
Erasure. Durch's Apology 168
Part II. Reconstruction
Torture, A Collage. The Testimony of Prak Khan, S-21 Interrogator 171
7. Villain (The Civil Parties) 176
8. Zealot (Prosecution) 197
9. Scapegoat (Defense) 213
10. The Accused (Trial Chamber Judgment) 229
Background. Redactic (Final Decision) 243
Epilogue. Man or Monster? (Conviction) 288
Acknowledgments 297
Timeline 301
Abbreviations 303
Notes 305
Bibliography 335
Index 345
What People are Saying About This
"Man or Monster? is an elegantly written, passionate, and well-documented treatment of genocide, collective memory, transitional justice, the problem of evil, and the trajectory of Cambodian history. Alexander Hinton's decades of engagement with these issues and with Cambodia give the book power, persuasiveness, and integrity."
"Alexander Hinton’s finely observed and elegantly meditative study of the Duch trial before the Khmer Rouge Tribunal prods us to think critically about how criminal trials construct and frame images of perpetrators of mass atrocity. Man or Monster? is a singular achievement."