Case 001 was the first case before the Extraordinary Chambers in the Courts of Cambodia. Kaing Guek Eav alias Duch, the former Chairman of the Khmer Rouge S-21 Security Center in Phnom Penh was the defendant in Case 001. The actions under scrutiny in this case relates to CPK policy of “smashing” their enemies in these prisons. This policy was introduced with the intention to condemn acts that violated and opposed the laws of the people’s state. This smashing mean to arrest secretly, interrogate through torture, and then to execute.
Most people interrogated at S-21 were intentionally subject to severe interrogation methods and torture which resulted in severe physical and mental harm to the detainees. There is only one instance of rape that has been proven by the chamber. This instance of coercive sexual penetration is said to have occurred when an interrogator inserted a stick into the genitals of a female detainee in order to extract a confession from her. Although this was the only instance of rape that the accused spoke about, witnesses recount another incident. However, the chamber proved that this instance of rape was not could not be proven to the required standard. The chamber considered that the instance of rape at S-21 satisfied the legal requisites for rape and torture. The chamber also considered that the rape was a component of the prolonged and brutal torture inflicted upon the victim prior to her execution.
After the fall of the Cambodian Government in 1975, the Communist Party of Kampuchea (CPK) came to power with Pol Pot as its leader, and renamed the state the Democratic Kampuchea (DK). During the period between April 1975 to December 1977, the DK was embroiled in armed conflict with Vietnam. Once the CPK came into power, it did away with administrative and legal structures that existed in the Khmer Republic and replaced them with re-education, interrogation and security centres (i.e prisons/detention centres) where former Khmer Republic officials and supporters as well as others were detained and executed. These included, S-21, M-13, S-24, Takmao Prison and Choeung Ek.
The actions under scrutiny in this case relates to CPK policy of “smashing” their enemies in these prisons. This policy was applicable to S-21, the entire party, the military, the state authority in the bases and police offices throughout the country. This policy was introduced with the intention to condemn acts that violated and opposed the laws of the people’s state. It should be clarified that to “smash” meant more than to kill. This smashing mean to arrest secretly, interrogate through torture, and then to execute. Moreover, smashing was not merely physical but also psychological.
The accused in this case is Kaing Guek Eav alias DUCH - the then Deputy Secretary/ Secretary of S-21. As chairman of S-21, his role consisted of oversight of the entire operations at S-21 including annotation of confessions and the ordering of executions. In his role as Deputy of S-21, he also permitted S-21 interrogators to use torture to extract confessions from detainees.
Charges Of The Accused
The accused was indicted as the person - at the helm of operations at S-21- for being one of the most responsible for the following offences:
Planning, instigating, ordering, committing, aiding and abetting crimes against humanity including persecution on on political grounds, extermination (encompassing murder), enslavement, imprisonment, torture( including one instance of rape) and other inhumane acts.
Grave breaches of Geneva Convention including wilful killing, torture, and inhumane treatments, wilfully causing great suffering or serious injury to body or health, wilfully depriving a prisoner of war or civilian of the rights of fair, regular trial, and unlawful confinement of a civilian.
National crimes of premeditated murder & torture
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
Observations of the Chamber on Torture and Rape
Most people interrogated at S-21 were intentionally subject to severe interrogation methods and torture which resulted in severe physical and mental harm to the detainees. Institutions within the DK operated within a vertical administrative system that functioned based on orders from those at the top of the hierarchy. As deputy secretary of S-21, orders for interrogation and torture came from Duch, although witnesses have stated that he personally never tortured anyone. Reports regarding each detainee and the confessions extracted from them had notes from Duch regarding the level of torture that is to be inflicted.
Some examples include : “Not yet confessed. To be tortured” or “[t]his female spoke quite little! beat her 40 times with the rattan stick and force her to keep writing”.
The torture techniques employed included - but was not restricted to: severe beating, electrocution, water-boarding, puncturing, inserting needles under or removing finger and toe nails, cigarette burns, direct or indirect threats to torture or kill the detainees or members of their family, the use of humiliating language, and one proven instance of rape.
Women, some of whom were pregnant were held together in specific common cells, but were not chained or shackled. However, the living conditions that were imposed on them were detrimental to their health, independent of the torture. Excretion of bodily fluids were to be carried out in ammunition boxes within their cells, and those who were injured or had died were left in the cells unattended for prolonged periods of time.
As mentioned earlier, there is one instance of rape that has been proven by the chamber. This instance of coercive sexual penetration is said to have occurred when an interrogator inserted a stick into the genitals of a female detainee in order to extract a confession from her.
While the accused acknowledged that he permitted S-21 interrogators to use torture, Kaing claimed that at the time, he was unaware that such an action committed a crime, and that he considered it to be yet another deviation from approved torture techniques he had set for his subordinates. He claims to have to have reported the incident to his superiors, who paid no heed to it either. The accused ultimately decided to reassign the interrogator, and he was no longer allowed to interrogate female detainees. No other action was taken against the perpetrator at the time.
Although this was the only incident that the accused spoke about, and was debated during the proceedings of this case, most witnesses also spoke about another incident where a female detainee was raped by an interrogator named Touch. Touch was subsequently arrested and detained, however, it is unclear whether this was in response to the rape. However the Chamber declared this allegation was not proven to the required standard.
Crimes Against Humanity and Torture
Article 5 of the ECCC law states that the chambers shall have the power to bring to trial suspects who committed crimes against humanity from 17 April 1975 to December 1979. Crimes against humanity have no statute of limitations and include any act committed as a part of a widespread systemic attack directed against any civilian population. These acts span across murder extermination, deportation, imprisonment, torture, rape, persecutions on national, political, ethical, racial or religious grounds and other inhuman acts.
Torture is defined as the infliction of pain and physical and or mental suffering wither through a specific act or omission. In order to decide whether an act constitutes torture or not, the Chamber is required to consider all subjective and objective factors with regard to the severity of the harm inflicted, and the victim in question. Objective factors focus on the severity of the harm inflicted while subjective factors include the age, sex and the physical and mental health of the victim.
Based on this definition, the following acts are often ruled as torture: beating, sexual violence, prolonged denial of sleep, food, hygiene, medical assistance, threats to torture, rape etc . Certain acts, like rape are considered to constitute severe pain and suffering by nature. The crime of torture requires that it is inflicted in order to fulfil a certain purpose - punishment, obtaining a confession, etc. It is also necessary that this infliction of pain and torture must be intentional.
Findings and Discussions on Rape
Within the arena of international law, rape has been described as “one of the worst suffering a human being can inflict on another”. An act of rape is defined as one that constitutes - even the slightest - sexual penetration by of the vagina and anus of the victim by the penis or any other object; or the mouth of the victim by the penis of the perpetrator, where such penetration is carried out without the consent of the victim.
It has been acknowledged that rape as a crime against humanity would be committed in circumstances that are inherently coercive, and true consent is not possible. While consent may be evidenced by the use of force, it is also true that there are other factors apart from force that may render an act of sexual penetration non-consensual. Hence it is not required that there be resistance on the part of the victim. Additionally, social stigma might make it difficult to present concrete evidence of rape. Therefore, international jurisprudence has accepted that circumstantial evidence be used to prove rape.
The requisite intention for rape is that : a) the perpetrator acted with intent to “affect sexual penetration” b) the knowledge that it occurred without the consent of the victim.
While rape is a separate and recognised offence within ECCCC Law and International Criminal Law, it also constitutes torture where other elements of torture are established.
The chamber considered that the instance of rape at S-21 satisfied the legal requisites for rape and torture. The chamber also considered that the rape was a component of the prolonged and brutal torture inflicted upon the victim prior to her execution.
Conclusions on the Criminal Responsibility of the Accused
The Chamber has found the Accused individually criminally responsible pursuant to Article 29 (new) of the ECCC Law for the following offences as crimes against humanity: murder, extermination, enslavement, imprisonment, torture (including one instance of rape), persecution on political grounds, and other inhumane acts; as well as for the following 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 fair and regular trial, and unlawful confinement of a civilian.