Part 2 of 2 in a series on the Closing Arguments in the Duch case, pending before the Extraordinary Chambers in the Courts of Cambodia. After the Civil Parties and Co-Prosecutors presented their Closing Arguments (see prior post), Duch next took the stand (right). His presentation was a didactic, rambling, and at times seemingly random exposition correcting or underscoring references in the trial record that are likely of interest to only a few beyond the Khmer Rouge historians in the audience. He peppered his testimony with Khmer aphorisms, such as
Finally, Duch’s statement became more introspective. He stated clearly,
Duch’s apparently monotonous delivery of this statement, with nary a glance toward the Civil Parties, made it difficult to glean how sincere and heartfelt these expressions of contrition came across in his native language. Indeed, any emotional impact Duch might have made was no doubt mitigated when, at the close of his remarks, he proceeded to read 34 footnotes aloud, without no indication of their textual referent.
The Co-Prosecutors (left) next presented their rebuttal and things got even more combative. Smith told the judges they had been “misled” by virtue of Savuth’s sudden request for an acquittal. Indeed, both Co-Prosecutors argued that, Duch should not benefit from any mitigation for his cooperation if he now seeks acquittal. Smith also wondered aloud whether Savuth had been following instructions from his counsel or if he had acted on his own, “leaving behind” his client. Smith—a former ICTY prosecutor himself—distinguished the situation of Obrenović from the current case on the ground that the former had enjoyed a distinguished military career prior to the disintegration of Yugoslavia and was accused of command responsibility—i.e., failing to supervise his troops—with respect to a single, albeit horrific, massacre. Duch, on the other hand, has a long history of participating in abuses that pre-dates the Khmer Rouge era. Leang addressed Savuth’s legal arguments, rebutting each one with references to international law, domestic precedent, and prior rulings of the tribunal. She also suggested that if Duch had maintained a consistent position during the trial, the victims might have accepted his apology.
before harvesting the bamboo, you must remove the thorns
that in context seemed chilling, especially when he later described purged Khmer Rouge cadre as “thorns in the eyes” of the Standing Committee. He testified that “politics governed technique” and described torture as “inevitable.” He claimed that the purges terrified him and that he was afraid of being removed himself. At various points, his statement addressed issues (such as Khmer Rouge leadership structures throughout the different zones) that were so tedious and arcane that members of the audience began to fall asleep, although they were regularly awoken by Court staff under orders from the Chamber to prevent such naps. Addressing his role within this history, he described himself as having been “plunged” into a criminal act with little right to challenge decisions on who should be “smashed.”
Finally, Duch’s statement became more introspective. He stated clearly,
I still am solely and individually responsible for the deaths of 12,000 people and will be forever liable.
Still reading from his prepared remarks and not looking at the Civil Parties in the courtroom, he testified that he owed an accounting to the people of Cambodia and that he was deeply remorseful for having devoted his strength and skills to a criminal organization rather than to serving his people. He implied that early on, he had been given the choice of two paths and, in a split second decision, took a path that led him to a life of endless suffering. Once he became a cog in the machine, he could not withdraw. He humbly apologized to the dead and to the survivors. He asked the victims to leave a door open for him to make an apology and to recognize him as a member of humankind.
Duch’s apparently monotonous delivery of this statement, with nary a glance toward the Civil Parties, made it difficult to glean how sincere and heartfelt these expressions of contrition came across in his native language. Indeed, any emotional impact Duch might have made was no doubt mitigated when, at the close of his remarks, he proceeded to read 34 footnotes aloud, without no indication of their textual referent.
The Closing Statement offered by Kar Savuth, Duch’s Cambodian Co-Defense Counsel (right), 
was so inconsistent with the prior trial strategy that one could have been forgiven for thinking that he represented a different client. Rather than focus on Duch’s cooperation and entitlement to mitigation, Savuth attacked the very jurisdiction of the ECCC, arguing that Duch cannot be considered one “most responsible” for the Khmer Rouge’s crimes when there were 196 prisons around the country during the Khmer Rouge era and so many other prison heads are enjoying their golden years. He attacked the Co-Prosecutors’ cumulative charging, he presented evidence that argued against the existence of an international armed conflict, he claimed there were few if any Vietnamese prisoners of war at Tuol Sleng until 1978, and he argued that Duch should benefit from the application of the statute of limitations and the amnesty law.
was so inconsistent with the prior trial strategy that one could have been forgiven for thinking that he represented a different client. Rather than focus on Duch’s cooperation and entitlement to mitigation, Savuth attacked the very jurisdiction of the ECCC, arguing that Duch cannot be considered one “most responsible” for the Khmer Rouge’s crimes when there were 196 prisons around the country during the Khmer Rouge era and so many other prison heads are enjoying their golden years. He attacked the Co-Prosecutors’ cumulative charging, he presented evidence that argued against the existence of an international armed conflict, he claimed there were few if any Vietnamese prisoners of war at Tuol Sleng until 1978, and he argued that Duch should benefit from the application of the statute of limitations and the amnesty law. In his review of the evidence, Savuth argued that after the Khmer Rouge consolidated their power around the country, only zone standing committees, members of the general staff, and comparable cadre had the authority to execute prisoners. Here, Savuth implicated Nuon Chea and Khieu Samphon in the crimes at S-21, two defendants who will be tried in Case 002 next year, and announced that Pol Pot, who has been dead for 10 years, should also be prosecuted. Savuth repeatedly echoed the scapegoat argument, emphasizing that the record showed that Duch never killed anyone directly and that none of Duch’s subordinates was now on trial. Drawing gasps from the public gallery, Savuth concluded by arguing that Duch should be exonerated because he was just following orders—someone who “fell victim as a loyal servant to the regime” and would have himself been killed by Angkor if he had resisted.
The next morning, Duch’s French counsel, François Roux (right), took the podium. Roux is a
legend in international criminal law, having successfully defended Ignace Bagileshima before the Rwanda Tribunal and avoided the death penalty for the so-called 20th hijacker Zacarias Moussaoui following the September 11th attacks (among other high profile clinets). Roux began his presentation by announcing that this would be his last appearance in court as he was on the eve of assuming a position of head of the defense section for the Special Tribunal for Lebanon. He also admitted that he had been forced to amend his remarks in light of his co-counsel’s presentation the day before, and he suggested that he disagreed with several of the arguments advanced on his client’s behalf. Roux acknowledged the paradox he now faced of having a client 
who had apparently simultaneously pled guilty and also asked for acquittal, likening his client to Albert Speer (left), who admitted his responsibility without a formal guilty plea and was accorded a 20-year sentence. Roux tried to rehabilitate Duch’s closing remarks, noting that his apologies were sincere “moments of truth” and that no one should doubt the tears that accompanied Duch's testimony over the course of the trial.
legend in international criminal law, having successfully defended Ignace Bagileshima before the Rwanda Tribunal and avoided the death penalty for the so-called 20th hijacker Zacarias Moussaoui following the September 11th attacks (among other high profile clinets). Roux began his presentation by announcing that this would be his last appearance in court as he was on the eve of assuming a position of head of the defense section for the Special Tribunal for Lebanon. He also admitted that he had been forced to amend his remarks in light of his co-counsel’s presentation the day before, and he suggested that he disagreed with several of the arguments advanced on his client’s behalf. Roux acknowledged the paradox he now faced of having a client 
who had apparently simultaneously pled guilty and also asked for acquittal, likening his client to Albert Speer (left), who admitted his responsibility without a formal guilty plea and was accorded a 20-year sentence. Roux tried to rehabilitate Duch’s closing remarks, noting that his apologies were sincere “moments of truth” and that no one should doubt the tears that accompanied Duch's testimony over the course of the trial.The rest of Roux’s presentation was aimed at the Co-Prosecutors and their failure to give Duch sufficient credit for giving them the bulk of the evidence against him. In this regard, Roux played a moving video excerpt from the Closing Statement of Peter McCloskey of the Yugoslav Tribunal in the Obrenović case. In this case, involving a military commander charged with responsibility for the crimes committed at Srebrenica, the Prosecutor in open court gratefully acknowledged the guilty plea of the defendant, his sincere remorse, and his cooperation during the course of the trial, and then sought a mere 17-year sentence. At the close of the video, Roux announced, “this is what this trial should have been” and implied that more dialog between the defense and the prosecution would have avoided the debacle of the day before. Roux urged the tribunal to regard superior orders in mitigation, especially given Duch’s continued cooperation with Case 002 and the fact that he had already spent 30 years in captivity of sorts (as a fugitive and then in military custody). Roux urged the tribunal to bring Duch “back into the fold of humanity.”
The rebuttals began immediately. The Civil Parties (left) accused the defendant of trying to ride on 
two horses at once, implying that his inconsistent statements were, in effect, an abuse of process that should have been resolved between the defense counsel. Counsel for the Civil Parties called the defense’s volte face a “slap in the face” of the victims. The Civil Parties argued collectively that statute of limitations, personal jurisdiction, and other such defenses should have been raised as preliminary matters and, as such, were waived. Several of the lawyers questioned Duch’s conversion to Christianity, noting his opportune choice of a religion that embodies a notion of forgiveness. They all doubted Duch’s sincerity, and French counsel Martine Jacquin accused Duch of seeking the pity his victims never had. After praising Roux’s service to international justice, Canonne accused his compatriot of insulting Cannone’s clients when he sought to minimize the horrors of S-21 by comparing the number dead to the hundreds of thousands of Cambodians killed throughout the Khmer Rouge era. Civil Party lawyer Hong Kim Suon, himself a victim, lost his composure twice over the course of his rebuttal. He accused Savuth of contradicting his own client’s testimony at trial and, in so doing, paining the victims.
two horses at once, implying that his inconsistent statements were, in effect, an abuse of process that should have been resolved between the defense counsel. Counsel for the Civil Parties called the defense’s volte face a “slap in the face” of the victims. The Civil Parties argued collectively that statute of limitations, personal jurisdiction, and other such defenses should have been raised as preliminary matters and, as such, were waived. Several of the lawyers questioned Duch’s conversion to Christianity, noting his opportune choice of a religion that embodies a notion of forgiveness. They all doubted Duch’s sincerity, and French counsel Martine Jacquin accused Duch of seeking the pity his victims never had. After praising Roux’s service to international justice, Canonne accused his compatriot of insulting Cannone’s clients when he sought to minimize the horrors of S-21 by comparing the number dead to the hundreds of thousands of Cambodians killed throughout the Khmer Rouge era. Civil Party lawyer Hong Kim Suon, himself a victim, lost his composure twice over the course of his rebuttal. He accused Savuth of contradicting his own client’s testimony at trial and, in so doing, paining the victims. 
The Co-Prosecutors (left) next presented their rebuttal and things got even more combative. Smith told the judges they had been “misled” by virtue of Savuth’s sudden request for an acquittal. Indeed, both Co-Prosecutors argued that, Duch should not benefit from any mitigation for his cooperation if he now seeks acquittal. Smith also wondered aloud whether Savuth had been following instructions from his counsel or if he had acted on his own, “leaving behind” his client. Smith—a former ICTY prosecutor himself—distinguished the situation of Obrenović from the current case on the ground that the former had enjoyed a distinguished military career prior to the disintegration of Yugoslavia and was accused of command responsibility—i.e., failing to supervise his troops—with respect to a single, albeit horrific, massacre. Duch, on the other hand, has a long history of participating in abuses that pre-dates the Khmer Rouge era. Leang addressed Savuth’s legal arguments, rebutting each one with references to international law, domestic precedent, and prior rulings of the tribunal. She also suggested that if Duch had maintained a consistent position during the trial, the victims might have accepted his apology. At the close of the defendant's rebuttal, which echoed the closing arguments and remained ambiguous, Smith (without any real authority to do so) rose again and called upon the defendant to pick a defense. After some deliberation, the President of the tribunal, Nil Nonn, invited the accused to make a final statement at the close of the defense’s rebuttal and clarify his position. Duch rose and stated:
I am most grateful for the opportunity offered to me to make my last words. First, I would like to tell the Court about the spirit of my co-operation with the Court. … I was determined to report to the Court sincerely, honestly based on my best memories and to prove it, at the Military Court, all the documents that I already co-operated in responding to the questions of the judges have already been provided to the Trial Chamber. And here, at this Court, I have responded to all the questions put to me by the Co-Investigating Judges and additional questions by the Co-Prosecutors. The records of the interviews at the ECCC are well used as the evidence and proof. … Questions have been fully been put by parties to me and by the Bench to me, and I have fully responded to such questions and the proof can be found in the transcript, hundreds of pages of transcript. …
So I am here to tell the Court that I have fully co-operated with all levels of the Court, including that of the Domestic Court, the Military Court and this hybrid Court. Second point, I would like to express concerning my apologies, and rather my guilt admission. … Having taken into account the more than one million souls who perished, I never forget them, including those of my relatives, and I have acknowledged how these people had suffered before they died. And I also used another word that all crimes committed by the CPK, I myself, as the member of the Party, acknowledge and apologize for them as the member of the Party, and Pol Pot relied heavily on the members of the Party and those members—and I was among them. So I would like to seek for apologies before my people and my nation. esterday the prosecutor, the national prosecutor indicated the new number of 12,300 [who died at S-21]. I never challenged such number anyway because I admit that even more than—there were more than the number that already indicated who died at S-21, and I am responsible for the crimes without any denial. … I still maintain my position that I am responsible for the crimes as the member of the criminal party.
Duch then said: “I will leave it to the Court to decide. I would ask the Chamber to release me. I’m very grateful.” Judge Sylvia Cartwright of New Zealand once again asked Duch for clarification of his position, and he indicated his preference that his national lawyer speak for him. Savuth then rose and confirmed that the request for release was in essence a request to be acquitted, not a plea for complete mitigation. With these final words, Duch and his counsel 
largely destroyed the painstakingly constructed strategy of accepting responsibility, expressing contrition, and hoping for mitigation.
largely destroyed the painstakingly constructed strategy of accepting responsibility, expressing contrition, and hoping for mitigation. Throughout the Closing Arguments, the lawyering was at times brilliant, contestable, and unsettling and the last minute schism between Duch’s lawyers (right) will no doubt go down in history as an example of a fatal flaw in this hybrid system. A verdict is expected this spring.
