Kaing Guek Eav, known to the movement he served as Duch, ran S-21, the central security office of the Khmer Rouge state in Phnom Penh. Between 1975 and the first week of January 1979, the people brought through its gates were held, questioned until they signed confessions, and then killed. The prison lists that survived the regime name at least 12,272 of them, and the judges who tried him believed the true number was considerably larger. Almost no one who entered came out alive.
On July 26, 2010, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia convicted him of crimes against humanity and grave breaches of the Geneva Conventions of 1949 and sentenced him to 35 years. It was the first judgment the UN-backed court had ever delivered, and he was the first official of the Khmer Rouge regime to be held to account in a court that met international fair-trial standards. On February 3, 2012, the court's Supreme Court Chamber rejected his appeal, rewrote the list of crimes against humanity on which he stood convicted, and replaced the 35 years with life imprisonment. He was still serving that sentence when he died in Phnom Penh on September 2, 2020, at the age of 77.
He stood apart from the other men the tribunal tried. He was not one of the regime's ruling circle, and he was the only one of its accused to admit what he had done and to apologize for it in open court. He was also the only one to ask, on the last day of his trial, to be acquitted and set free.
Kaing Guek Eav was born on November 17, 1942, in Kampong Thom province, in central Cambodia. He did well at school and rose through the country's best institutions, taking a baccalaureate in mathematics at the Lycée Sisowath in Phnom Penh. A monk who befriended him in 1962 at a pagoda in the capital later remembered him as a very bright pupil, and as an idealist who felt for the poor.
He became a mathematics teacher. His first contact with communist ideas came through a circle of Chinese exchange students at the University of Phnom Penh. The name by which he would be known for the rest of his life was taken from a schoolbook of his childhood, which told the story of an obedient, model pupil named Duch.
He joined the Communist Party of Kampuchea's movement in 1967, when it was still a small insurgency in the forests. In the late 1960s the police of Prince Norodom Sihanouk's government arrested him for communist activity and held him without trial for several months. When Sihanouk was overthrown in 1970, he went to the mountains near the Thai border and joined the armed movement that became the Khmer Rouge.
From 1971 to 1975 he headed a security office in the forest known as M-13, run by the insurgents while they were still fighting the American-backed government in Phnom Penh. It was one of two prisons he ran in the territory the movement held, and it was in that work, first as a prison commandant and then in charge of security, that he sharpened the methods of interrogation he would carry to the capital.
One of the few people to leave M-13 alive was a French scholar who was researching Buddhism in the countryside when the guerrillas seized him on suspicion of working for the CIA. He was held for about three months, made to write several statements of his innocence, and released. He was one of only about ten people known to have survived the camp. Decades later, as the first witness at Duch's trial, he told the judges that fear and death filled the place and that the young commandant embodied both, but he also described a man who had given himself to a cause he believed was just, and who resembled many of his own Marxist friends. He said he did not know what to make of the sympathy he still felt.
The Khmer Rouge took Phnom Penh on April 17, 1975, and emptied the city. Under the regime that followed, which called the country Democratic Kampuchea, the Communist Party's standing committee directed the state, and the party pursued what the court later described as a policy of "smashing" its enemies: arbitrary arrest, interrogation and secret killing. The trial judges also found that a state of international armed conflict existed between Democratic Kampuchea and Vietnam from April 1975 until at least January 1979, a finding that brought the crimes within the law of war.
S-21 was set up in a former secondary school in the capital. The earliest documents connecting Kaing Guek Eav with it date from October 1975. He served first as its deputy chairman and then as chairman, with complete authority over its staff, and he also came to head the Santebal, the party's internal security and prisons branch. The judges found that he taught interrogation to his subordinates, reported the detainees' confessions to his superiors, and signed off on the killings. They also found that he did not merely carry out the party's policy at S-21 but actively helped to develop it, and that he worked tirelessly to make the prison run as efficiently as possible.
Most of those sent there were suspected enemies from within the party itself, mostly its own cadres, and their families were taken with them, children among them. Every prisoner who arrived was treated as already condemned, and the questioning existed to produce a signed confession. Prisoners were held in inhumane conditions, forced to labor and subjected to torture, and almost all were killed. Only a handful are thought to have survived until the regime fell.
The office kept meticulous records. What was done there was routinely photographed and written down, and the confessions and prisoner lists were filed. Nearly 6,000 photographs and some 8,200 complete prisoner files have been recovered. When the regime collapsed, the archive was left behind, and the papers and film negatives that had been made to serve the party became the evidence against the man who had supervised them.
Vietnamese forces invaded at the end of 1978 and drove the Khmer Rouge out of Phnom Penh in the first days of January 1979. Before he left, Kaing Guek Eav oversaw the killing of the prisoners who remained. He fled the city only hours ahead of the Vietnamese army, and he did not destroy the archive. That failure is said to have angered Nuon Chea, the party's second-ranking leader, who demoted him.
Many people assumed he had died. In fact he stayed with the movement for more than ten years after its fall, as it fought on against the Vietnamese-backed government from the borderlands. He held posts in the insurgency and spent the years from 1986 to 1988 teaching in China. In the 1990s he lost touch with the Khmer Rouge commanders and made a quiet living in the northwest, teaching school, raising pigs and trading rice. He also taught English and mathematics in at least one refugee camp.
In 1996, after meeting American missionaries, he converted to Christianity. When fighting flared again in the area he crossed into Thailand, and later he went to work for an international aid organization run by Christians. He taught himself English and lived under an assumed name, Hang Pin.
In 1999 a photojournalist who had been carrying a photograph of the S-21 chief, came across him by chance in Battambang province while working on another assignment. Soon afterward, he and another journalist interviewed him. Kaing Guek Eav did not deny who he was. He told them he wanted to confess, so that no one could say S-21 had not existed, and he said that under the party's rule anyone arrested had to die. He told them it was God's will that he had been found and that his future was in God's hands.
After the interview was published he gave himself up to the authorities in Phnom Penh, and in May 1999 the Cambodian military took him into custody. A military court charged him with murder, torture and membership of an outlawed group, and he was held in military detention for the next eight years without trial. The UN-backed court would later find that this detention, from May 1999 to July 2007, breached his right to be tried within a reasonable time and in accordance with the law.
The Extraordinary Chambers in the Courts of Cambodia grew out of an agreement between the United Nations and the Cambodian government reached in 2003, and the court began work in 2006. On July 18, 2007, its two co-prosecutors, one Cambodian and one international, opened a judicial investigation into five people, Kaing Guek Eav among them. On July 31, 2007, he was transferred from military custody to the court's detention center, and his case was separated from the others and given the number 001.
He cooperated fully with the investigating judges and admitted responsibility for many of the crimes under investigation. On August 8, 2008, the co-investigating judges issued their closing order, which indicted him for crimes against humanity and grave breaches of the Geneva Conventions committed while he was deputy secretary and then secretary of S-21. The crimes against humanity charged were imprisonment, enslavement, torture, rape, murder, extermination, persecution and other inhumane acts. The war crimes were willful killing; torture or inhumane treatment; willfully causing great suffering or serious injury; willfully depriving prisoners of war or civilians of the right to a fair and regular trial; and unlawful confinement of civilians. On December 5, 2008, the Pre-Trial Chamber confirmed the indictment, amending it in part and adding two crimes under Cambodia's 1956 penal code, murder and torture. He was not charged with genocide.
The court's procedure, borrowed from the French civil-law tradition, made no provision for a guilty plea. However much he admitted, the judges would have to hear the evidence and decide every charge on it.
The first hearing took place on February 17, 2009. He sat behind a protective screen and did not speak, while the judges dealt with the list of witnesses. His international lawyer told the court that his client acknowledged the facts with which he was charged and wished to ask forgiveness from the victims and from the Cambodian people.
The substantive trial opened on March 30, 2009, before five judges, three Cambodian and two international. Ninety victims had been joined to the case as civil parties, organized into four groups, the first time an international tribunal had allowed victims to take part in a trial as civil parties and to claim reparations. On the second day he stood and addressed the survivors. "May I be permitted to apologize to the survivors of the regime," he said, and he told them he was not asking them to forgive him then, but would try to earn it later.
The hearings ran for 77 days, through most of 2009. The chamber heard 24 witnesses, 22 civil parties and nine experts and examined about 1,000 documents. More than 28,000 people watched from the public gallery, and many more followed the proceedings on television. The French scholar held at M-13 was the first witness, on April 8 and 9. Others included survivors of S-21, relatives of the dead, and men who had worked under the accused.
Kaing Guek Eav was an attentive, well-prepared defendant. He corrected the interpreters, criticized the judges' questions, and argued points of detail with the witnesses. He accepted that he had run S-21 and that its prisoners were presumed dead from the moment they arrived, and he called himself criminally responsible for the deaths of the children who died there. His main defense was that he had acted on the orders of his superiors and would have been killed had he refused. He estimated that most of the confessions extracted at S-21 were only about 40 percent true, and he described the system he had run as "evil eating evil." He disputed some of the evidence: he denied that he had personally tortured anyone and contested whether he had attended killings.
For nine months the defense had been built on a single strategy: accept responsibility, show contrition, cooperate with the court, and ask for a reduced sentence. His international lawyer had conceded that his client could not credibly deny guilt, given his signature on thousands of the prison's death orders and his leadership of S-21, and he argued that remorse offered the accused his best chance of one day living free.
Closing statements were heard from November 23 to 27, 2009. The co-prosecutors asked for a sentence of 45 years, reduced by five to take account of the time he had already served, his contrition and his limited cooperation, for a term of 40 years. That week the accused told the chamber, "I am solely and individually responsible for the loss of at least 12,380 lives."
Then the defense came apart. His Cambodian lawyer told the court that the tribunal had no jurisdiction over his client, that international criminal law did not apply, and that he had only followed orders. The next day his international lawyer said that this argument had forced him to rewrite his own, that the two men disagreed, and that his client was of course guilty. The prosecution accused the defense of trying to ride two horses at once.
On November 27, the last day of the trial, Kaing Guek Eav spoke for the final time. He apologized again, and then he asked the judges to free him. "I would ask the chamber to release me. Thank you very much," he said. When the judges asked his Cambodian lawyer what he meant, the lawyer said his client wanted to be acquitted: he was not a senior member of the regime, he had already served ten years, and he had cooperated with the court. The international co-prosecutor said the request reinforced the prosecution's view that his remorse was limited. In the months that followed, the accused dismissed his international lawyer, citing a loss of confidence, and his defense became wholly Cambodian.
More than a thousand people gathered at the court on the outskirts of Phnom Penh on the morning of July 26, 2010. The 500 seats of the public gallery were full, with survivors and relatives of the dead, villagers from across the country, Buddhist monks and foreign diplomats among them, and others watched on screens in the courtyard and at screenings in the provinces. The accused, in a light blue shirt, sat without expression as the president of the Trial Chamber read a summary of the judgment.
The chamber found that the party's standing committee had directed the state of Democratic Kampuchea, that the country had been at war with Vietnam throughout the regime's rule, and that at least 12,272 people had been detained and killed at S-21. It found that Kaing Guek Eav had taken part in the crimes as a member of a joint criminal enterprise, a form of liability it held was part of customary international law in 1975, and that he had worked zealously within, and presided over, a system of terror. For sentencing it also found that he had planned, ordered, and aided and abetted many of the crimes, and that he would have been liable as a superior as well. It found the evidence insufficient to show that he had personally tortured victims. It rejected his defense of superior orders, which international law does not recognize, and his claim of duress, because the evidence showed he had not only taken part in the enterprise but helped to plan it.
He was convicted of the crime against humanity of persecution on political grounds, under which the chamber subsumed the other crimes against humanity proved: extermination, enslavement, imprisonment, torture, which included one instance of rape, and other inhumane acts. He was convicted of the grave breaches of willful killing; torture and inhumane treatment; willfully causing great suffering; willfully depriving a prisoner of war or civilian of the rights of fair and regular trial; and unlawful confinement of a civilian. The two crimes under the Cambodian penal code fell away: the judges could not reach the four-vote majority required to decide whether the statute of limitations had run on them, so they held that they lacked jurisdiction.
The chamber weighed his cooperation with the court, his admission of responsibility, his limited expressions of remorse, the coercive climate of Democratic Kampuchea and his potential for rehabilitation against the gravity of the crimes and the long period over which they were committed. It sentenced him to 35 years. It then deducted five years as a remedy for his unlawful detention by the military court and credited him with the eleven years he had already spent in custody, leaving him about 19 years to serve. The prosecution had asked for 40. Many in the gallery wept; many survivors said publicly that the term was far too light and feared he would one day walk free.
Of the 90 civil party applicants, the chamber recognized 66. It ordered that their names, and their connection to S-21 and to the relatives who died there, be written into the judgment, and that the statements of apology and remorse the accused had made during the trial be compiled and published. It declined to order any other reparations, holding that it had no power to make the government carry them out.
The co-prosecutors, the accused and three of the four civil party groups appealed to the Supreme Court Chamber, a bench of seven judges, four Cambodian and three international. The appeal was argued from March 28 to 30, 2011. The defense argued that Kaing Guek Eav was neither a senior leader of Democratic Kampuchea nor one of those most responsible for its crimes, the two classes of person the court had been created to try, and that he should never have been before it. He told the chamber that he had survived the regime only because he had followed his orders respectfully and strictly, and that he would have died otherwise. The co-prosecutors asked for life imprisonment, reduced to 45 years to account for the unlawful detention, and for each crime against humanity to be entered as a separate conviction, rape among them.
The Supreme Court Chamber delivered its judgment on February 3, 2012. It held that the words "senior leaders" and "those most responsible" were not a strict jurisdictional requirement but a policy guide for the investigating judges and the prosecutors in the exercise of their discretion, and it dismissed the jurisdictional appeal. It agreed with the trial judges that crimes against humanity existed in 1975 in a form the accused could foresee. It held that the single instance of rape had been correctly treated as a form of torture rather than a separate crime, and it left the enslavement finding undisturbed.
On the prosecution's main ground it found that the trial judges had applied the right test for cumulative convictions but had applied it wrongly, by looking at the conduct behind each charge rather than the legal elements of each crime. It modified his convictions for crimes against humanity to consist, cumulatively, of persecution on political grounds, extermination (encompassing murder), enslavement, imprisonment, torture and other inhumane acts, and it upheld the conviction for grave breaches of the Geneva Conventions.
It then found that the trial judges had given too much weight to the mitigating circumstances and that they were outweighed by the aggravating ones: the nature of the crimes, the more than 12,000 people killed, his central role and his enthusiasm for the work. It quashed the 35-year sentence and imposed life imprisonment, the maximum the law allowed. By a majority of five judges to two, it also overturned the five-year reduction for the unlawful military detention, holding that the detention could not be attributed to the tribunal and that there was no legal basis for the remedy; the two dissenting international judges would have kept it. All seven agreed that he was entitled to credit for the time he had spent in custody since 1999. The chamber admitted ten more civil parties and rejected the remaining claims for reparation, noting among other reasons that the accused was indigent. Its judgment was final.
The question of any future parole was left to the Cambodian justice system.
Kaing Guek Eav remained in the tribunal's detention facility for a time after the appeal. In 2013 he was transferred to a provincial prison in Kandal province, outside the capital, where he was kept apart from other prisoners.
He died in Phnom Penh on September 2, 2020, at the age of 77, and a spokesman for the tribunal announced his death. By then the court had convicted only two other men, both senior leaders of the regime, in the case that followed his. One of them, Nuon Chea, had died the year before while his appeal was pending; the appeal of the other, Khieu Samphan, was still before the court. The government had made plain its opposition to any further prosecutions.
The Extraordinary Chambers in the Courts of Cambodia were a hybrid court, set up inside the Cambodian judicial system under a 2001 Cambodian law, amended on October 27, 2004, to give effect to the 2003 agreement with the United Nations. The court's reach was limited to crimes committed in the period of Democratic Kampuchea, from 1975 to 1979, and to two classes of person: senior leaders of the regime and those most responsible for its crimes. Its cases could include crimes against humanity, grave breaches of the Geneva Conventions of 1949 and certain crimes under the 1956 Cambodian penal code.
Every organ of the court had a Cambodian and an international side. There were two co-prosecutors and two co-investigating judges, one of each nationality, and the defense, too, combined Cambodian and international counsel with equal standing, an arrangement that lay behind the open split between his lawyers at the end of his trial. The Trial Chamber sat with three Cambodian and two international judges, the Supreme Court Chamber with four Cambodian and three international judges. To protect against a bench divided along national lines, a verdict required a supermajority, a majority plus one. Without that majority, the accused would be acquitted of the charge in question, and the same rule explains why the domestic crimes of murder and torture fell away at his trial.
Cambodia has no death penalty. Article 39 of the court's founding law allowed sentences from five years to life imprisonment, and the court could also order confiscation of property. Victims could join the proceedings as civil parties, with their own lawyers, but the only reparations open to them were moral and collective ones. His case was the first test of each of these rules. It decided how far the court could look into the reasons a suspect was brought before it, whether a defendant could be convicted through a joint criminal enterprise, how cumulative convictions were to be entered, what a remedy for unlawful detention by another authority required, and who could qualify as a civil party.
The number of people who died at S-21 is not settled. The court's figure of 12,272 is a minimum, drawn from the surviving prison lists, and both chambers said the true total was higher. He himself acknowledged at least 12,380 deaths in his closing statement, and he had at other times admitted overseeing as many as 16,000; historians' estimates run higher still.
The trial judges did not find that he had personally tortured anyone, and he denied it throughout. They found him responsible as a member of the joint criminal enterprise, and as the man who planned, ordered and oversaw the crimes, not as a hands-on participant. He also disputed whether he had attended killings and some of the evidence about specific practices at the prison.
His claim that he acted only under duress, out of fear for his own life, was rejected by both chambers. So was his late argument that he was neither a senior leader nor one of those most responsible, and therefore outside the court's reach.
The sincerity of his remorse was contested from the beginning. The co-prosecutors said his request for acquittal showed that his remorse was limited, and the trial judges described it the same way, though they still gave it weight in mitigation. The Supreme Court Chamber held that they had given it too much.
November 17, 1942: Kaing Guek Eav is born in Kampong Thom province.
1967: He joins the Communist Party of Kampuchea's movement.
Late 1960s: He is arrested for communist activity and held without trial for several months.
1971 to 1975: He heads the security office M-13, where a French scholar is held for about three months.
April 17, 1975: The Khmer Rouge take Phnom Penh.
October 1975: The earliest documents linking him to S-21 date from this month.
January 1979: Vietnamese forces take Phnom Penh; he leaves the city.
1986 to 1988: He teaches in China.
1996: He converts to Christianity.
1999: He is identified in Battambang province and interviewed.
May 1999: He is taken into custody by the Cambodian military.
July 18, 2007: The co-prosecutors open a judicial investigation into five people, including him.
July 31, 2007: He is transferred to the custody of the Extraordinary Chambers.
August 8, 2008: He is indicted.
December 5, 2008: The Pre-Trial Chamber confirms the indictment.
February 17, 2009: The first hearing in his case is held.
March 30, 2009: His trial opens.
March 31, 2009: He apologizes to the survivors in court.
November 23 to 27, 2009: Closing statements are heard; on the last day he asks to be released.
July 26, 2010: The Trial Chamber convicts him and sentences him to 35 years.
March 28 to 30, 2011: The Supreme Court Chamber hears the appeals.
February 3, 2012: The Supreme Court Chamber imposes life imprisonment.
2013: He is transferred to a provincial prison in Kandal province.
September 2, 2020: He dies in Phnom Penh, aged 77.