Earlier this year I sat in a room with a man who oversaw the deaths of 15,000 people. With no more than 10 metres and a glass divider between us it was easy to get a good look at him. Kaing Guek Eav, commonly know as “Duch”, was chief of the Tuol Sleng prison in Phnom Penh during the Khmer Rouge regime. He was dressed in run-of-the-mill khaki trousers and a collared shirt, which looked one size too big for him, like he had shrunk, like grandpas sometimes look. I didn’t want him to look like a grandpa. I wanted him to look like a homicidal maniac with bloodshot eyes, devil’s horns and the word MONSTER tattooed across his forehead in big red capital letters. exclamation mark. exclamation mark. Of course I knew he wouldn’t look like that (damn you rational brain) but I so badly wanted his external appearance to match what I thought his soul must look like, eeeevil.

At the time I wasn’t sure why I went to Duch’s appeal hearing. I mean, I knew the surface motivations. My housemate had been interning at the court for the past two months and we had had some interesting discussions about the trial; I cared about the country I was living in and wanted to learn more about the genocide; and from an intellectually curious perspective I wanted to know how the international criminal court worked. The thing is, I didn’t really need to go there to discover all those things. I could have read about it, or just talked to my housemate more. I think, in retrospect, the reason I wanted to go there was to make it real. There has always been a part of me that just cannot believe that a human being is capable of mass killings. I’ve read history books, watched documentaries of survivors recounting their experiences and even been to mass-killing sites at Auschwitz and Tuol Sleng, but it’s not the same. I wanted to see what a killer looked like in person.

The experience itself was bizarrely theatre-like. The court is in a specially-built complex about 20 minutes drive from the centre of Phnom Penh. After security you hang around in a glorified chook-pen until the court opens and you pass through another security check to get into the main gallery. About 400 seats are laid out amphitheatre-style facing the court room with large panes of glass rising to the ceiling to separate the two areas. When I arrived there were thick blue curtains drawn across the dividing glass, which opened dramatically to reveal the empty courtroom before the legal players entered from stage left. 95% of the audience were Cambodian. I wondered if their mothers, fathers, brothers, sisters, cousins or children had been murdered, what it must be like for them. I wondered if the glass partition was bulletproof.

The court is conducted in Cambodian and English, with each of the prosecution, defence and judges speaking thein one of the two languages and a real-time translation provided for speakers of the alternate language. In the audience we were all given headphones, which I used when Cambodian was being spoken. Unfortunately there was no ‘legalese for dummies’ translation so I wasn’t able to understand all of the proceedings. From what I gathered, the prosecution were arguing for an increase on the 35 year sentence that had been handed down in 2010 because it did not give sufficient weight to the severity of crimes committed (among other reasons).The defence were arguing for a reduction of the 35 year sentence because Duch doesn’t fit the category of “most responsible” for the mass-killings and (did I hear this correctly!?!?!?) there is a maximum 30 year jail term under Cambodian law.

After the tribunal, tired after concentrating for hours and still trying to get all the facts and arguments straight, I was making my way back toward the main road to grab a tuk-tuk into town. A 4WD pulled up and a French guy wound down his window and asked if I wanted a lift. I was walking with a friend that I had run into at the trial so we both jumped in. One of my favourite aspects of living in Phnom Penh was consistently running into really knowledgeable people and, happily, this was just such an occasion. Thierry Cruvellier was a journalist following the trials and turned out to be an expert on the workings of international criminal tribunals. He followed the Rwandan tribunal full time from 1997 to 2002 and wrote a book detailing his findings. Lucky me! Unlucky him! I’m pretty sure he regretted picking us up the minute we unleashed our volley of questions. Poor guy.

Our discussions with Thierry revealed a lot about the complexity of running these tribunals. The court in Cambodia is technically what they call a hybrid court, the “Extraordinary Chambers in the Courts of Cambodia” (ECCC), with emphasis being on the “in”. It is funded by the UN but operates within the current Cambodian judicial system, which is why the defence were able to make the argument about the maximum 30 year jail term. Thierry also explained the defences 2nd argument, that Duch shouldn’t be classified as ‘the most responsible’ . You see, Tuol Sleng was one of many prison and extermination centres across the county. It just so happens that most of the other centres destroyed their evidence more effectively as the Khmer Rouge retreated to the northern border with Thailand. There were many more men of equal rank with Duch, he was just the one that they had sufficient evidence to persecute in a court of law. It could be argued that he might be judged more harshly in place of all those who aren’t able to be persecuted. Did that make me feel sorry for him? Not really. It made me angry that the others got away with it.

Thanks to Phnom Penh’s afternoon traffic we also had time to discuss the issue of rank and responsibility. Who are “the most responsible”? There have been many psychological investigations into the effects of power and authority on behaviour. (Milgram’s being the most famous)  In short, people are capable of doing incredibly inhumane things when ordered to do so by superiors, even when it seemingly conflicts their moral predisposition. The phenomenon is often used as an excuse for lower-ranking perpetrators whose defence is that they were merely following orders. I understand this to a degree, particularly when families are used for leverage. However, someone has to be responsible at some point, right? We can’t only ever go after the man at the top of the pyramid can we?
 
Several months after that day at the trial and the car ride with Thierry I learned that Duch’s sentence was reduced to 19 years. In his late 60s now, he could still live long enough to be released! I am definitely in favour of reformist jail systems and I really want to trust the court’s decision but it’s really hard to believe that justice has been done in this case.

My housemate said that in some regards Duch’s trial was a test-run of the ECCC for the much bigger second trial of four of the head honchos of Pol Pot’s regime, including the former Khmer Rouge head of state Khieu Samphan. However, things have had a rough start and don’t bode well for that trial. I read a recent report in the Sydney Morning Herald that the ECCC is in disarray; there have been paralysing disagreements, accusations of corruption and malpractice, in fact the investigating judges’ entire UN legal team has resigned. The reasons for resignation will be of no surprise to anyone who is familiar with the decidedly bent nature of the Cambodian government. As the SMH reporter says “The German co-investigating judge Siegfried Blunk quit the trials on Monday, citing interference by the Cambodian Prime Minister, Hen Sen, and other government officials.”

I can’t imagine how frustrating it must be to work at the tribunal. I went for one day and found it annoying that I couldn’t be like Wile E Coyote and just throw an oversized anvil at Duch and be done with it (again, if only cartoons were real). The whole experience was just so aggravatingly civilised and formal and devoid of emotions. That’s the legal system for you though, and I know that’s how it has to be and that’s how it should be. I achieved what I hoped to achieve by going to the tribunal; the Khmer Rouge atrocities became much more real to me by seeing Duch in the flesh. It’s utterly mindboggling to think that I could potentially see him in the flesh again someday, no longer behind the glass divider of the tribunal court, but out on the street. Is that justice? I don't know, but I think any experience that makes you think about philosophy in more 3D terms is probably an experience worth having.

Info:
Photo credit for public gallery photo - ECCC gallery on Flickr
Website of the ECCC -  including visitor information for Khmer Rouge Tribunal public hearings