The life sentence for the former Khmer Rouge secret police commander, Comrade Duch, leaves a hardened legacy. The appeal judgement was handed down by the ECCC on 3 February.

By Thierry Cruvellier*

Duch’s 30-year sentence in July 2010 was a subtle attempt to convey the complexities raised during the trial. Suddenly, at the end of his trial, Duch’s Cambodian lawyer requested that his client – who cooperated with the investigations, accepted 85% of the charges, expressed remorse and asked for forgiveness – be acquitted. He argued that Duch was outside the court’s mandate, due to his lower rank in the Khmer Rouge hierarchy.

Trial judges weren’t impressed by this spectacular last-minute change of strategy. Their unanimous judgement was a serious and faithful account of the 9-month long proceedings in 2009 and a delicate effort to find an impossible balance between the status of the accused and the gravity of the crimes. Duch was the only senior Khmer Rouge to admit his crimes and acknowledge the criminal ideology he served as head of prison S-21 in Phnom Penh between 1975 and 1979. Judges sentenced him to 30 years in jail. The Defence had hoped for less. The Prosecutor had asked for more. Most victims’ families who participated in the trial were shocked. The sentence became central to the appeal proceedings.

The appeal process wasn’t complex. No factual findings were challenged and most legal points were not without precedent at the international level. However, it took a surprisingly long 18 months for the 7-judge panel (4 Cambodians and 3 internationals) to reach a decision. The Supreme Court has now made it harsh and simple: a life sentence. It “finds that the effect that mitigating factors had on the Trial Chamber’s determination of the sentence constituted an error of law.”

“The fact that he was not on the top of the command chain [...] does not justify a lighter sentence,” appeal judges wrote. “Kaing Guek Eav commanded and operated this factory of death for more than three years. He is responsible for the merciless termination of at least 12,272 individuals.” He deserves “the highest penalty available to provide a fair and adequate response to the outrage these crimes invoked,” the judgement continued.

Duch was arrested in 1999 but only transferred to the ECCC in 2007. The Trial Chamber had ruled, unanimously, that his detention prior to his transfer was illegal and that his rights had been violated. They reduced his sentence from 35 to 30 years. But the appeals chamber said the ECCC should provide no remedy for such violations. Also, 10 of 22 Civil Party applicants who had appealed their rejection by the Trial Chamber were declared admissible by the Appeals Chamber. But the court’s show of concern for victims’ expectations stopped here.

When dealing with reparations, judges strictly followed the conservative line drawn by the other organs of the court. They say they have “no jurisdiction to grant requests for reparation.” The Cambodian government has no intention of providing compensation and as Duch is indigent, there will be, in fact, no awards. The government, which deputy Prime Minister Sok An represented during the reading of the verdict, has reason to be pleased.

* Thierry Cruvellier, former IJT editor-in-chief