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The Prosecutor v. Kaing Guek Eav alias Duch

Court Extraordinary Chambers in the Courts of Cambodia, Cambodia
Case number 001/18-07-2007/ECCC/TC
Decision title Judgement
Decision date 26 July 2010
  • The Prosecutor
  • Kaing Guek Eav alias Duch
Other names
  • Case 001
  • Duch
Categories Crimes against humanity, War crimes
Keywords crimes against humanity, enslavement, extermination, grave breaches of the Geneva Conventions, inhuman treatment, other inhumane acts, persecution, prisoner of war, rape, torture, unlawful confinement, war crimes, wilful killing
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After the fall of the Cambodian government in 1975, the Communist Party, under the leadership of Pol Pot, came to power and renamed the state the Democratic Kampuchea. An armed conflict broke out with Vietnam, which lasted until 1979. From 1975 until 1979, Pol Pot and the Communist Party of Kampuchea sought to establish a revolutionary state and introduced a policy of ‘smashing’ their enemies, a form of physical and psychological destruction that consisted of arbitrary detention, torture and execution. This policy was implemented at a number of interrogation centres, one of which was S21. Duch, a former mathematics teacher, was the Chairman of S21 responsible for extracting confessions and information, and teaching interrogation techniques.

In the first ever judgment of the Extraordinary Chambers in the Courts of Cambodia, the Trial Chamber convicted Duch of multiple counts of war crimes and crimes against humanity. He was sentenced to 35 years’ imprisonment, minus five years as a result of his unlawful detention by the Cambodian Military Court for eight years prior to his transfer to the ECCC. This was also the first case before an international tribunal to allow victims of the crimes to participate in proceedings as civil parties and claim reparations for the harm they have suffered. 

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Procedural history

On 18 July 2007, the Co-Prosecutors of the ECCC opened a judicial investigation into five persons, including Kaing, alias Duch.  The Accused was transferred from military detention and placed in the Court’s detention centre on 31 July 2007.

On 8 August 2008, Duch was indicted for multiple counts of crimes against humanity and war crimes, committed in his role as Deputy Secretary or Secretary of Office S21, the headquarters of the Communist Party of Kampuchea’s Special Branch of the Secret Police. The indictment was confirmed and partially amended by the Pre-Trial Chamber on 5 December 2008. The trial commenced on 30 March 2009. 90 victims were joined as Civil Parties to the proceedings grouped into four Civil Party groups. Closing statements were heard from 23 to 27 November 2009.

The Trial Chamber rendered its verdict on 26 July 2010. 

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Related developments

The Accused and the Co-Prosecutors, as well as 41 Civil Parties, appealed the decision of the Trial Chamber to the Supreme Court Chamber.

Oral hearings were held on 28-30 March 2011. The Supreme Court Chamber handed down its verdict on 3 February 2012. The Chamber quashed the 35-year sentence decided by the Trial Chamber and replaced it with life imprisonment.

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Legally relevant facts

In April 1975, an international armed conflict broke out between the Democratic Kampuchea (DK) and Vietnam. The former had come into being as a result of Pol Pot and the Khmer Rouge’s entry into power following the fall of the governemnt of the Khmer Republic. The conflict lasted until at least January 1979 (paras. 62-63).

The ruling Community Party of Kampuchea (CPK) exercised effective authority over the territory and intended to create a new revolutionary state power (para. 82). Their period in power was characterised by a policy of ‘smashing enemies’, which included arbitrary detention, interrogation by torture and secret execution (para. 100).

The Accused was the Deputy and then Chairman of S21, a security centre tasked with interrogting and executing perceived oppoenents of the CPK (para. 111). His tasks included teaching interrogation methods to subordinates and reporting detainee’s confessions (para. 127). As Chairman, he had full authority over all S21 staff (para. 132). It is in this capacity that he is alleged to have planned, instigated, ordered, committed or aided and abetted crimes against humanity and war crimes (para. 11).

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Core legal questions

  • Is joint criminal enterprise (JCE) as a mode of liability resulting in individual criminal responsibility applicable before the ECCC? In the affirmative, is it in accordance with the criminal law principles of accessibility and foreseeability?
  • Can the Accused’s time spent in unlawful detention by the Cambodian Military Court prior to his transfer to the ECCC be a factor entitling him to a reduction in his sentence?

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Specific legal rules and provisions

  • Article 6 of the 1945 Nuremberg Charter.
  • Article 2 of Control Council Law No. 10.
  • Articles 5, 6 and 29 of 2001 ECCC Law.

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Court's holding and analysis

Joint criminal enterprise as a mode of liability is applicable before the Chambers on the basis of Article 29 ECCC law, which implicitly refers to participation in a JCE through the notion of ‘commission.’ This results from the analysis of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone whose relevant statutory provisions are identical (para. 511). Furthermore, the first and second forms of JCE were part of customary international law during the Indictment period, from 1975 to 1979 thus convicting an individual on this form of liability does not breach the criminal law principles of accessibility and foreseeability (para. 512).

Considering that the Accused’s detention by the Military Court was in breach of his rights to a trial within a reasonable time and in accordance with the law, he is entitled to a reduction in his sentence of 5 years on the grounds that 8 years’ unlawful detention cannot be justified by the gravity of the crimes nor the constraints of the Cambodian legal system at that time (paras. 624, 627).

The Chamber convicted Duch of persecution, enslavement, imprisonment and torture as crimes against humanity; and wilful killing, torture and inhumane treatment, wilfully causing great suffering, wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial and unlawful confinement of a civilian as war crimes (para. 677). He was sentenced to 35 years’ imprisonment, with a reduction of 5 years for his time spent in unlawful detention and with credit for time served (paras. 679-681).

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Further analysis

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Instruments cited

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Additional materials

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