So Duch, unlike all other repentant perpetrators of crimes against humanity, is dishonest. That justifies the special treatment he receives, the logic goes. But the sad truth is, I don’t know of a single “honest” confession any prosecutor has received in an international court. A confession is always the result of some compromise, some agreement, some deal; and in some cases such deals have been sufficiently opaque to mask a degree of dishonesty shared by all of the parties involved. Yet prosecutors from The Hague to Arusha have, without exception, proudly and assertively defended these “guilty pleas.”
There is no such thing as an honest or dishonest confession. Whether it’s obtained by the threat of a guilty verdict in a legal system that respects the rights of the accused or extorted by electric shock, a confession is always the result of an expedient settlement made between someone in a weakened mental state and mundane interests of the other side.
While the prosecutor pleads his case, Duch shows what he thinks of him. He gazes at the ceiling or away from the prosecution. His eyes are open and his features tired; his mouth is fixed in a grimace of either bitterness or irritation. The master of confessions has lost the game; the investigating judges have already spent a long time questioning him; he has given plenty of testimony against himself and against the four remaining Khmer Rouge leaders who are to be tried after him. The prosecutor has all the evidence he needs from Duch, at least on paper. Duch appears to have given away for free what few trump cards he had, without obtaining any guarantees in return. For someone so well-versed in power dynamics, it’s a surprising mistake.
Duch looks right, then behind him to his left, then glances briefly at the prosecutor. Then he turns his back on him once again.
The Australian deputy prosecutor asks for a sentence of forty years. Usually a straightforward, affable, and accommodating man, he suddenly exudes an uncompromising authority wholly absent from his more good-natured side and embodies it with ease and foul-mouthed eloquence. The hesitancy and weakness he displayed during the cross-examination have gone. Given the opportunity to sum up his arguments unchallenged, he comes into his own.
A recess is called. Everybody stands. Duch stares at his accuser. Then he walks over to the glass separating the court from the public gallery and waves at a young man. He smiles and faces the crowd streaming past the platform at his feet. Nic Dunlop, the man who had “compromised everything” when he identified Duch in 1999, walks by. He blushes slightly. Duch watches his back as he walks away. The defendant disappears through a side door only to reappear a moment later. He begins pacing around his side of the courtroom with his hands in his pockets. He walks up to the glass again and contemplates the empty gallery. Two members of the civil parties take offense at his presence; one leads the other out of the room. Duch chats with a guard, returns to his seat, smiles. Then he stands again and goes up to his Cambodian lawyer, Kar Savuth, who is having his usual rest. Phung Ton’s daughter and widow are leaning against the wall at the top of the public gallery. They never take their eyes off Duch. They never let him have the place to himself. François Roux comes into the gallery and sits with his family for a few moments. People start filing back into the room. Phung Ton’s daughter and widow return to their seats, which are directly in front of Duch and Kar Savuth. Duch is smiling. He appears relaxed.
When the proceedings resume, it’s Duch’s turn to speak. It will be his final major statement. He talks ad nauseam about the endless killing perpetrated by the Communist Party of Kampuchea. He’s convinced that he owes his survival, he says, to three things: never ordering an arrest himself or overriding his superiors’ authority; never profiting materially from the war or the victory; and never conducting himself immorally with women. Obedient, selfless, and proper—he knew how to control his emotions. Duch meanders through a story of bloodshed and terror that is, by turns, absurd and tedious. He lingers on certain anecdotes and repeats, for the umpteenth time, theories or explanations that he has already given in court. His statement is muddled, meaningless, repetitive, and speculative; it involves a tale about the regime’s top leaders killing each other off over an invisible and silent river overflowing with corpses. He finally concludes that the “Khmer Rouge regime wanted to use the killing to establish its dynasty in Cambodia and satisfy its ambition.” As a Party member, Duch acknowledges his own responsibility for the last time. The way he puts it, however, has a deeper significance: “I clearly understand that any theory or ideology which mentions love for the people in a class-based concept and class struggle is definitely driving us into endless tragedy and misery.”
This is no longer the story of a road paved with good intentions. Now Duch is saying that the worm was there right from the start, in the original philosophy. No doubt there are many former Communists and members of the Old Guard still clinging to the Revolution—including some who work for the tribunal and even for the office of the prosecution—who would struggle to articulate this criticism of the ideology they once served as lucidly as Duch does.
Sometimes, we get a glimpse of the old revolutionary Duch; sometimes, all the excitement of that era comes back to him, rising from the pit of his stomach and overwhelming him, if only briefly. These feverish outbreaks are striking. For a few seconds, the old Khmer Rouge soldier resurfaces, his faith apparently undiminished. The tremor that these reminiscences produce in court is proof enough, for some, that the apparatchik remains as committed to his cause as ever. Once a Khmer Rouge, always a Khmer Rouge, it seems. But behind the mask called Duch, Kaing Guek Eav is trying desperately, and despite everything, to exist.
I still maintain that a decision to choose which path to walk is made in a matter of seconds. However, the repercussions of making a wrong choice will result in lifelong remorse. Convinced that I was contributing to the liberation of the nation and its people and hoping that I would be serving my people, I devoted myself, my strength, my heart, my intelligence and everything else, including my readiness to sacrifice my own life for the nation and the people, to the cause. But I found I had ended up serving a criminal organization which destroyed its own people in an outrageous fashion. I could not withdraw from it. I was just like a cog in a machine. For the victims of S-21 and their families, I still claim that I am solely and individually liable for the loss of at least 12,380 lives. These people, before their deaths, had endured a great and prolonged suffering and countless inhumane conditions. I still and forever wish to most respectfully and humbly apologize to the dead souls. As for the families of the victims, my wish is that I will always maintain my humble and respectful behavior by asking you to kindly leave your door open for me to make my apologies. I promise I will do everything for my people, should they need me, in whatever circumstance in the future.
For Duch, the intimate is still too perilous a field in which to tread. In the end, it’s Duch the bureaucrat who prevails. He begins reading the thirty-four footnotes attached to his statement. Duch is now at the peak of his weirdness; incapable of expressing emotion and presenting a final statement which is the perfect illustration of his need to intellectualize everything, including his remorse and request for forgiveness. It should be a dramatic moment, yet it’s quite banal. When Duch starts reading his footnotes, what little electricity there is in the courtroom immediately flickers out. We’re left with Duch the archivist, deep in his papers.
“It’s disconcerting,” says one of the lawyers for the victims.
Disconcerting because it leads one to think that this gentleman hasn’t understood a thing; that he’s still using his same method, including his famous footnotes. It’s as though he’s still living under the regime he chose to serve. He is still in the middle of the most absurd bureaucracy, one that crushes reflection, reason, and sensibility.
When he’s finished reading, Duch carefully tidies up his papers and slides them into a plastic folder, which he then hands to the court clerk. It’s lunchtime. Tioulong Raingsy’s sister leaves the court with tears in her eyes because the pro
secutor didn’t ask for life imprisonment. After the recess, her nerves still on edge, she wonders with trembling anxiety, “If the forty years are served in full”—she repeats the words, served in full—“then it’s okay. But will they be?” Others seem to accept the prosecutor’s decision to ask for forty years in prison. A phalanx of journalists bristling with cameras and microphones swarms after the survivor Chum Mey. Over the course of the trial, the former mechanic has turned into the victims’ unofficial spokesperson. He has become astonishingly media-savvy, and it’s both comforting and worrying to see his newfound skills exposed to all sorts of media, some maybe less well-intentioned than others.
CHAPTER 37
KAR SAVUTH, WHO CLAIMS TO BE SEVENTY-SIX, has a surprisingly young physique and takes good care of himself. He is nimble and blessed with a survival instinct forged by the several authoritarian regimes that have ruled modern Cambodia. He has the charisma and guile of one who is no longer afraid of anything, and a deft sense of theater. Though spry for his age, he has only so much energy, but he knows how to make the most of it. He lost family members under the Khmer Rouge, including two brothers, but he has been Duch’s lawyer ever since Duch was arrested in 1999. Kar Savuth is also one of Prime Minister Hun Sen’s legal advisors.
During an initial hearing before the international tribunal, a year and a half before the start of the trial, Kar Savuth sidestepped an uncomfortable question by flatly declaring that Duch had been tortured and badly beaten while being held in detention by Cambodia’s military police between 1999 and 2007. It was a new and serious allegation, but when a judge asked him for clarification the following day, Kar Savuth quickly retracted it in a smug tone: “I didn’t actually say that he was beaten up before the military tribunal.”
Kar Savuth shares with many of his Cambodian colleagues a tendency to exaggerate, and one very quickly develops the habit of only half-listening to their over-embellished arguments. Bellicose and grandiloquent one moment, courteous and back-pedaling the next, Kar Savuth can charge through the legal arena like a bull bled alive; he can switch from hostile to obsequious in the blink of an eye. We have all learned not to take his bombast too seriously.
Kar Savuth gave one of his spectacular, impassioned speeches at the start of the trial.
“Why are we prosecuting Khmer Rouge leaders?” he asked.
There are three reasons: to see that justice is done on behalf of those who perished and those who survived; to prevent another such regime ever again surfacing in Cambodia; and to defend the nation’s sovereignty. Who are the most important leaders of Democratic Kampuchea? How many of them were there? We cannot accept the legitimacy of this trial until these facts have been established. It is better to prosecute no one rather than to judge only some.
At that early stage of the trial, everyone found the old fox’s lively, flamboyant posturing in court, as well as his sheer nerve, entertaining. Everyone assumed that he would bluster on until he ran out of steam, then return to his charming and courteous ways. But Kar Savuth didn’t run out of steam. He claimed that there were fourteen top leaders in Pol Pot’s regime. Duch wasn’t among them.
“If those fourteen people aren’t prosecuted, it’s a breach of the law! This trial must be stopped immediately!” he thundered before an audience that was both amused and embarrassed.
This time, the lawyer had gone too far. The prosecutor warned him and asked that
the chamber request the defense to clarify if these proceedings are now, at this point or at any other point, to be challenged on their legality? This chamber cannot proceed at this trial without having a clear answer from the defense as to its position on the legality of the prosecution of this individual. There is an expression that says “you cannot have your cake and eat it.”
The judges felt obliged to ask Kar Savuth to clarify his position. He immediately defused the bombshell with which he had just threatened the court.
“These arguments are just comments for the consideration of the chamber,” he said with a disarming grin. “I’m not questioning the chamber’s authority. I am quite aware that I could have raised this during the initial hearing if I had wished to do so. They are just my own comments.”
Phew.
The defense floundered until François Roux returned to the helm and steered it toward the goal he had set for it a year and a half earlier. “There’s no difference between international and national judges; there’s no difference between international and national lawyers; and there’s no difference between international and national prosecutors.” Roux would like to say that the fool’s game that he and his Cambodian partner found themselves caught up in is one being played at every level in the tribunal. Everyone might be sitting next to his Judas. Anyone might find himself betrayed at any moment. And it’s hard to resist twisting the knife in your neighbor’s wounds while waiting to be stabbed in the back yourself. Roux battered his opponent’s already bleeding injuries.
The same day, the head of the Cambodian government declared that no more than five suspects would appear before this tribunal. Yet four months previously, after a year and a half of political wrangling, contortions, and delicate negotiations, the international prosecutor had requested that six other former Khmer Rouge leaders face prosecution. But his Cambodian colleague, all too familiar with the powers that be, had opposed these new indictments. Everyone in this tightly controlled court is vulnerable to such discord. Political betrayal is an old habit here.
Kar Savuth brought up the question of discontinuing the trial two or three more times over its course. But it no longer meant anything: in legal terms, it was too late. Everyone hoped that his repeated insinuations that Duch shouldn’t be judged in this court were nothing more than his own hang-ups, a lawyer’s itch to play the gadfly, or simply the result of the Khmer tendency to think in circles.
THERE’S NOTHING STRAIGHTFORWARD ABOUT defending Duch. Even those well-versed in defendants’ rights, even those publicly committed to human rights, or who have made careers out of defending them, sometimes conflate the crime with the criminal and the criminal with the person defending him in court. Many human rights activists and lawyers have found such stigmatizations impossible to resist. And who hasn’t wanted to write a letter to the editor such as this one, penned by a no-doubt well-educated reader of Le Monde, a highly respected French newspaper:
I hope that the defense lawyers had no family, friends, or acquaintances among the 14,000 people that this vile individual ordered put to death. Had Cambodia kept the death penalty, he would deserve it twice over. What a cynical move by the old man. In any case, he won’t enjoy life for much longer and if we only let the people carry out their own justice, he would be stoned to death on the spot. And to think that there are lawyers who accept the vile job of defending him!
Behind this brave vigilante’s words we can hear the lynch mob’s call; we see its redemptive fist smash into Savuth’s nose and Roux’s temple, the throng frothing at the mouth; we hear the hollow sound of stones piling up on the bastard’s corpse while nearby in a corner, the lawyer pisses vile blood onto his worthless robe.
We need only watch how men and women of all social classes react to the trials of torturers and executioners to gauge our collective lust for the gallows, for the firing squad lurking in a football stadium, or for watching women with the shaved heads in 1945 at the French Liberation. In every trial I’ve covered—whether in Africa, Europe, or Asia—I’ve felt the breath of that bloodlust, the hatred that exists even among the most well-educated, on the back of my neck. It is the same as the rush of air that preceded the blow of the pickax handle that was the last thing felt by the victims at Choeung Ek, on their knees at the edge of the pit.
Kar Savuth knows all of this. On the day he makes his closing statement, he begins by asking his countrymen for their understanding for the “vile job” lawyers are obliged to undertake when defending a man like Duch. With that caveat out of the way, he returns to his favorite theme: there were h
undreds of prisons, some of them even more murderous than S-21, yet their former directors remain free, untroubled by the law. Why is Duch and Duch alone standing trial? Duch is just a scapegoat, claims the lawyer, and scapegoating isn’t justice. Nine months after the trial began, Kar Savuth is sticking to his guns: this tribunal has the authority to judge the top leaders and main perpetrators responsible for the atrocities; Duch wasn’t among those who decided whom to arrest and execute; therefore, he wasn’t one of the fourteen people in charge of the Khmer Rouge. Of the individuals named by Kar Savuth, only three are still alive. All three between seventy-nine and eighty-five years old, they are scheduled to be tried after Duch. It’s unfortunate, says Kar Savuth, but the court can’t have it both ways: either charge all the former directors of all the other prisons in Democratic Kampuchea, or else free Duch.
Kar Savuth can show a good deal of finesse when it suits him. But today is one of those days that call for impassioned argument, which he gladly provides. The temperature rises, like a fevered trance taking hold of dancers swaying to primordial drumbeats in the sweltering night. Kar Savuth, intoxicated by his own words, grows heated and provocative; he finds it appropriate to invest Pol Pot’s murder of Son Sen with some gravity; he deplores the Spartan conditions in which Brother Number One spent the last months of his life. Those crimes ought to have been punished, he says. The notion is so noxious that it is immediately dismissed by everyone present. But Kar Savuth has a knack for jumbling the coarsely preposterous with sensitive truths. Amid all his nonsense, he reminds us that high-ranking Khmer Rouge cadres are still serving in the army today, some of them as generals, and none of them are fearful of being arrested. So, really, why Duch and not them? The Cambodian lawyer has been preparing for his moment for a long time, and now, at last, he takes the final step: he declares that Duch is “not guilty” and that all charges against him should be dropped. Nobody finds this funny anymore. The atmosphere in the courtroom is electrified.
The Master of Confessions Page 28
