Guek Eav Kaing

Duch has been detained in a Cambodian military prison since May 1999 when a military court in Cambodia charged him with murder, torture and membership of an outlawed group.

Since the death of Ta Mok, and before the provisional detention of Nuon Chea dating back to 19 September 2007 Duch was the only person of importance imprisoned in Cambodia. He was put under trial on 30 March 2009 before the Extraordinary Chambers in the Courts of Cambodia (ECCC).

On 31 July 2007 Duch was the first suspect to be provisionally detained by the Co-investigating judges of the ECCC.

The Co-investigating judges of the ECCC informed him of the charges against him, namely Crimes against Humanity, under articles 5, 29 (new) and 39 (new) of the Law on the establishment of the ECCC dated 27 October 2004 and grave breaches of the 1949 Geneva Convention. He was ordered to be provisionally detained for a period not exceeding one year.

On 19 September 2007, the Co-Investigating Judges decided, in order to ensure good administration of justice, to separate the case of Duch regarding the alleged crimes attributed to him in connection with the S-21 detention centre on the one hand and the other alleged crimes referred to in the Introductory Submission (dated 18 July 2007) by the Co-Prosecutors on the other hand.

In addition to the crimes alleged to have been perpetrated in connection with the S21 detention centre, the ongoing judicial investigation covers three broad categories of alleged crimes: forced movements of the population; killings, torture and other abuses; and forced labour, unlawful detention and inhuman living conditions perpetrated alleged to have taken place in S-21 detention centre and in other locations.

On 20 November 2007 Duch’s lawyers appealed the Co-investigating judges’ order of provisional detention on the grounds that he was held without charge under the jurisdiction of another court for eight years. The Pre-Trial Chamber rejected this appeal in its decision dated 3 December 2007.

The office of the Co-investigating judges of the ECCC announced on 15 May 2008 that it had completed its investigations against Guek Eav Kaing with regard to his responsibility for the crimes allegedly committed in S-21.

On 8 August 2008, the ECCC issued a closing order to officially indict former Kaing. He is the first suspect to be charged since the establishment of the tribunal in 2006.

On 5 September 2008, the Co-Prosecutors of the ECCC appealed the Co-Investigating Judges’ Closing Order on the grounds that they failed to indict Duch to offences provided for in the Cambodian Penal Code; and that it did not indict him for commission of crimes through participation in a Joint Criminal Enterprise.

On 5 December 2008, the Pre-Trial Chamber of the ECCC decided that Duch should be indicted on certain grounds relating to Cambodian national Law. It also provides that the Co-prosecutors did not have a sufficient factual basis for indicting Duch for commission of crimes through participation in a Joint Criminal Enterprise.

His trial opened on 30 March 2009.

On 31 March 2009, Duch formally accepted responsibility and apologized for the torture and murder of an estimated 12'000 Cambodians.

On 27 November 2009, Duch completely departed from his defense strategy by pleading not guilty and requiring to be released at the close of his trial.

On 26 July 2010, the Trial Chamber of the Extraordinary Chambers in the Court of Cambodia found Kaing, guilty of crimes against humanity and grave breaches of the Geneva Conventions of 1949 and sentenced him to 35 years in prison. The Chamber declared Duch guilty of:

- Crimes against humanity (persecution on political grounds) (subsuming the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture (including one instance of rape), and other inhumane acts);

- Grave breaches of the Geneva Conventions of 1949 (wilful killing, torture and inhumane treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving a prisoner of war or civilian of the rights of a fair and regular trial, and unlawful confinement of a civilian).

In deciding on an appropriate sentence, the Chamber took into account a number of aggravating circumstances, including the shocking and heinous character of the offences, but also found there were significant mitigating factors (cooperation with the Chamber, admission of responsibility, limited expressions of remorse, the coercive environment in Democratic Kampuchea, and the potential for rehabilitation) which mandate the imposition of a finite term of imprisonment rather than one of life imprisonment.

The Chamber considered that a reduction of 5 (five) years to the sentence is appropriate given the violation of Duch’s rights occasioned by his illegal detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007. Duch is also entitled to credit for the entirety of his time spent in detention, that is from 10 May 1999 to 30 July 2007 (under the authority of the Cambodian Military Court) and from 31 July 2007 until the judgment becomes final (under the authority of the ECCC).

In its judgment, the Trial Chamber admitted 66 of the 90 civil party applications. With regards to collective and moral reparations, the Trial Chamber granted (1) the inclusion of civil parties’ names in the judgement and (2) the compilation and publication of all statements of apology and acknowledgments of responsibility expressed by Duch over the trial. All other civil party claims for reparations were rejected.

The judgement was appealed by all parties (defence, prosecution and the civil parties).

On 30 March 2011, the Supreme Court Chamber heard submissions from Duch himself asking for his acquittal and release. Duch’s defence argued that the ECCC lacks jurisdiction to try him as the Court’s mandate only covers the trial of top leaders of the Khmer Rouge. The Defence submitted that Duch lacked such authority within the regime and was implementing orders sent from above him.

The Prosecution rebutted the defence’s arguments arguing that these issues should have been raised during the original trial. The prosecution also appealed the 35 years sentence and argued that Duch should be given life imprisonment for his actions.

In total, 41 civil parties lodged appeals on their admissibility and/or claims for reparations.

On 3 February 2012, the Supreme Court Chamber sentenced Duch to life imprisonment for crimes against humanity and grave breaches of the 1949 Geneva Conventions.

The Supreme Court Chamber (SCC) held that the Trial Chamber had attached “undue weight to mitigating circumstances and insufficient weight to the gravity of the crimes and aggravating circumstances”. The SCC found that the “high number of deaths for which [Duch] is responsible, along with the extended period of time over which the crimes where committed (more than three years), undoubtedly place this case among the gravest before international criminal tribunals.” As to aggravating factors, the SCC indicated Duch’s “leadership role and particular enthusiasm in the commission of his crimes” at S-21, a “factory of death”.

By supermajority (with two international judges dissenting), the SCC then quashed the Trial Chamber’s decision to grant a remedy for the violation of the Accused’s rights occasioned by his illegal detention under the authority of the Cambodian Military Court. The SCC unanimously held that Duch is entitled to credit for the entire time spent in detention as from 10 May 1999, and decided to apply such credit by finding that he has already served 12 years and 269 days of his sentence of life imprisonment.

The SCC also held that the Trial Chamber erred in law by subsuming specific crimes against humanity under the crime of persecution. The SCC affirmed the conviction for the crime against humanity of persecution, and entered additional convictions for the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture, and other inhumane acts.

Finally, the SCC granted the appeals of 10 civil party applicants whose applications had been rejected by the Trial Chamber. With regards to reparations, the SCC affirmed the Trial Chamber’s ruling and dismissed all other claims for reparation on the grounds that they implied an order against the Cambodian state or required lacking financial means.