Man

(OPENING ARGUMENTS)

"I wish to apologize."

Standing straight while reading a prepared statement held at eye level, Duch offered the first public apology by a high-ranking Khmer Rouge. "I do not ask that you forgive me here and now," he continued, glancing periodically at a dozen victims staring at him from across the courtroom. "I know that the crimes I committed against the lives of those people, including women and children, are intolerably and unforgivably serious crimes. My plea is that you leave the door open to me to seek forgiveness."

Duch made this apology on March 31, 2009, the second day of his trial, while standing in the court's horseshoe-shaped dock. As he spoke, he pressed the tips of the four fingers on his left hand, mangled in a hunting rifle accident in the early 1980s, against the dock's small table for balance. Sitting behind him, a security officer watched Duch with half-closed eyes, Buddha-like. The apology was part of a 20-minute statement Duch made after the prosecution had completed its opening arguments.

In the 500-seat spectator gallery, located behind the court's tall, curving glass back wall, the audience listened intently. The room was packed with a range of people: ECCC officials, Cambodian students wearing blue shirts, Muslim Chams, NGO staffers, students from abroad, and Cambodians from different walks of life who wanted to get a firsthand look at this man who had run what had become the symbolic center of the Cambodian genocide. A large contingent of domestic and international media was also covering the story.

Duch was separated from the people sitting in the front row of the gallery by just half a dozen meters and the protective glass wall. Everyone in the gallery gazed at Duch as he staked his claim to humanity, the former watcher now watched.

Day 1, March 30, 2009

BACKDROP

Duch's trial had opened the previous day to the flash of cameras as three photographers rapidly moved about the courtroom taking shots of him from different angles. Sitting in the gallery, I thought of how Duch's prisoners had their mug shots taken on arrival at S-21. But, as observers sometimes pointed out, those victims never had a trial. There were no courts during DK. The fact of arrest implied guilt, since the Party supposedly did not make mistakes. Wearing a long-sleeved dress shirt, Duch gazed back, unsmiling, at the photographers, his brown eyes lit by flashes of light.

Then Duch's trial began, as Judge Nil Nonn intoned: "In the name of the Cambodian people, and the United Nations, and pursuant to the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea ..."

The trial was to begin and end in controversy. Judge Nil, whose black hair was often disheveled, was himself involved. From the very beginning of negotiations between the United Nations and Cambodia over the creation of the trial, various parties had raised concerns about the corruption and politicization of the country's judiciary.

Judge Nil, who would efficiently lead the proceedings, had been appointed president of the Trial Chamber. His official court biography notes that he had been president of Cambodian courts in Battambang and Siem Reap province prior to joining the ECCC. A professor of law, he obtained his degree at Ho Chi Minh City University, receiving additional training in international law and human rights from organizations such as the United Nations Development Programme (UNDP).

In 2002, a PBS documentary filmmaker had interviewed Judge Nil, who complained about criticism of the Cambodian judiciary even as he admitted taking bribes while serving on the Battambang court, "but only after a case is over." The filmmaker explains: "After all, he earns only $30 a month, not nearly enough to provide for his family. What else, he asks with that toothy grin, is he supposed to do?"

While Judge Nil later denied having made these statements, he acknowledged in another interview that Cambodia's judiciary suffers from a range of problems, including lack of independence, government interference, and fair trial rights violations — even if such problems are also linked to insufficient resources, training, and experience. He noted his determination to help fix these problems.

It was precisely because of such issues that the UN had initially advocated for an international tribunal. In the same 1997 resolution that requested that the UN secretary-general respond to any Cambodian appeal for assistance in holding a tribunal, the UN Commission on Human Rights expressed "serious concern" about a recent report of its special representative that was highly critical of the "continuing problem of impunity," including the Cambodian judiciary's lack of "independence," "impartiality," and proper "due process." Such concerns about "international standards of justice" were echoed in the "Group of Experts" report, by diplomats, in subsequent UN statements, and in human rights and NGO reports and press releases.

In early 2007, the Open Society Justice Initiative sparked a major controversy by revealing that the UNDP, which oversees donor funding for the ECCC, was carrying out an audit of the tribunal's finances, in part because of allegations that the Cambodian judges at the ECCC were sending kickbacks to their political patrons, charges the Cambodian government declined to investigate. While an independent investigation found that as a result of a number of reforms undertaken during the following year, the ECCC had adequately addressed the issues raised in the UNDP report, corruption allegations continued to surface. These issues were part of the backdrop of the Duch trial.

* * *

All institutions have performative rituals through which they assert their legitimacy, and the Duch trial was no exception. Thus, in the first few moments of the hearing, Judge Nil quickly asserted the court's legitimacy by noting its foundation on international and Cambodian law and its jurisdictional mandate, which empowered him and his fellow jurists, whom he named, to oversee the proceedings.

The domestic and international composition of the judges and the use of both international and Cambodian law were just two of many signs of the hybridity of the ECCC, a point also highlighted by Judge Nil's opening remarks. At a long...