Duch found guilty of war crimes and crimes against humanity 26 Jul 2010
Former prison guard sentenced by Cambodia's UN-backed war crimes tribunal in its first ever trial.

On 26 July 2010, Kaing Guek Eav (alias “Duch”) was found guilty of war crimes and crimes against humanity by the Extraordinary Chambers in the Courts of Cambodia (ECCC), a UN-backed court established to try senior leaders of the Khmer Rouge.

The ECCC sentenced Duch to 35 years’ imprisonment, although prosecutors had requested a 40 year sentence. The sentence was reduced by five years due to the accused’s illegal detention in the Cambodian Military Court between 1999 and 2007. The sentence is also reduced for the time Duch has remained in detention. In addition to sentencing, the Chamber also addressed claims on behalf of victims, who were civil parties to the dispute.

The trial proceedings commenced on 17 February 2009 and concluded on 27 November 2009. The trial was the first before the specially-constituted ECCC.

 Duch had pleaded guilty to the charges, however, under the rules of the ECCC, the Chamber could not accept a guilty plea from the accused. He was found guilty of committing crimes against humanity, namely murder, extermination, enslavement, imprisonment, torture, rape, persecution on political grounds, and other inhumane acts. He was found guilty of grave breaches of the 1949 Geneva Conventions, including wilful killing, torture or inhumane treatment. The Chamber did not rule on the accused’s responsibility under domestic law, including the 1956 Penal Code of Cambodia. The Chamber was divided on the question of whether responsibility for these crimes had been extinguished before the ECCC investigation commenced and therefore did not exercise jurisdiction over domestic crimes. The Chamber held that the relevant international crimes existed under international law at the time of their commission.

The Chamber held that an international armed conflict between Democratic Kampuchea and Vietnam took place at the time the crimes were committed. The Chamber found that the necessary preconditions for conviction under Article 6 of the ECCC Law, which concerns grave breaches of the Geneva Conventions of 1949, were satisfied.

The Chamber held that there were insufficient grounds to find Duch personally responsible for acts of torture committed at the prison. However, the Chamber found Duch responsible for taking part in a joint criminal enterprise, whereby he substantially contributed to a concerted system of ill treatment and torture at the prison. The Chamber made additional findings establishing Duch’s responsibility for having planned, instigated, ordered, and aided and abetted the crimes committed, as well as criminal responsibility on the basis of superior responsibility.

The Chamber rejected Duch’s arguments in that he had acted under superior orders and had been subject to duress, rejecting superior orders as a legitimate defence for crimes against humanity.

Duch is the first accused to be put on trial at the ECCC. Other senior figures remain awaiting trial, including Nuon Chea ("Brother Number Two"), former head of state Khieu Samphan, former foreign minister Ieng Sary and his wife Ieng Thirith, former minister of social affairs.

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