First Comprehensive Summary of the IHT Merchants Case now available from Grotian Moment Blog

We are pleased to post Judge Ra’id Juhi’s comprehensive English summary of the Iraqi High Tribunal's Merchants Case, the third case to be tried by the Tribunal. Little has so far been written about the case and its judgment has not yet been translated into English. Judge Ra’id, who served as the IHT’s Chief Investigative Judge for the previous Dujail and Anfal cases, is currently Distinguished Jurist in Residence at Case Western Reserve University School of Law (home of the Grotian Moment Blog). The Merchants Case featured former Iraqi Foreign Minister Tariq Aziz as a defendant, along with Al Hassan al-Majid (“Chemical Ali”), Watban Ibrahim (Saddam’s half brother and chief adviser), and Sabawi Ibrahim (Saddam’s half brother and former intelligence chief) and several others who faced charges stemming from the 1992 executions of 42 merchants accused by the Ba’athist Regime of being behind a sharp increase in food prices when the country was under strict UN sanctions following the invasion of Kuwait. The presiding judge of the Merchants trial, Raouf Abdul-Rahman, had previously presided over the Dujail trial which was the subject of the award-winning book “Enemy of the State” (St. Martin’s Press, 2008) by Grotian Moment Expert Bloggers Michael Scharf and Michael Newton ( see http://www.enemyofthestatebook.com ). In March 2009, the Iraqi High Tribunal issued its verdict in the Merchants case: Taraq Aziz and Al Hassan al-Majid were each found guilty and sentence to fifteen years, while Watban Ibrahim and Sabawi Ibrahim were sentence to death. As described in Judge Ra’id’s detailed analysis, the judgment raises a host of novel issues which are sure to be of interest to scholars and practitioners of international criminal law.

Posted @ 4:00 PM | Other IHT Cases | 5 Comments | 0 Trackbacks

A Preview of the Karadzic Case

In the first major development of the Radovan Karadzic case before the International Criminal Tribunal for the Former Yugoslavia, the Defense team (led by Attorney Peter Robinson) has filed a Pre-Trial Brief (under Karadzic's name). The brief, which can be read here, details the defenses Karadzic will rely on at trial and provides a comprehensive preview of the defense case. A recent one-hour radio discussion with Peter Robinson, Prof. Michael Scharf (Case), and Prof. Mike Newton (Vanderbilt) about the defense of Radovan Karadzic can be heard here.

Posted @ 10:35 AM | Experts Debate the Issues: The Radovan Karadzic Trial | 0 Comments | 0 Trackbacks

The Post-Dujail Trials Before the Iraqi High Tribunal

By Michael Scharf

On December 4, 2008, Salem Chalibi and I led a discussion (moderated by Elizabeth Wilmshurst) at Chatham House in London about the post-Dujail trials before the Iraqi High Tribunal. There have been five trials in all, three of which have concluded. After Saddam’s execution, the international media stopped covering the trials, so that few people are aware that without Saddam as a defendant, the subsequent trials were conducted much more efficiently, without the chaos and theatrics that marked the earlier proceedings. Nor have there been any more assassinations of trial participants or allegations of government attempts to remove judges or otherwise influence the proceedings. Meanwhile, the subsequent trials have established some important precedents, in particular regarding application of the crime of genocide. For the detailed summary of the Chatham House discussion of the subsequent trials, click on: http://www.chathamhouse.org.uk/publications/papers/view/-/id/692/.

Posted @ 5:24 PM | Experts Debate the Issues: The Dujail Trial | 1 Comment | 0 Trackbacks

Anfal Campaign Appeals Chamber Opinion Now Available On Grotian Moment

On September 4, 2007, the Iraqi High Tribunal Appellate Chamber issued a twenty-eight page decision in the “Anfal Campaign Case,” rejecting the various grounds for appeal and upholding the convictions of “Chemical Ali” (Ali Hassan al-Majid) and five other military leaders of Saddam Hussein’s regime of genocide, crimes against humanity, and war crimes related to their roles in a three-year crackdown of northern Iraqi Kurds known as the Anfal campaign. The Iraqi High Tribunal and Regime Crimes Liaison Office have provided the English Translation of the Anfal Campaign Appellate Chamber Opinion to Case Western Reserve University School of Law to post on the Grotian Moment Website for world wide access. This is the only place on the internet that the English Translation of the Opinion is available. The Appellate Chamber Opinion, which includes a detailed analysis of the defendant’s culpability for genocide, is of special significance because, aside from the Nuremberg Tribunal and Rwanda Tribunal, this is the only other war crimes tribunal to convict persons of the offense of Genocide, the worst crime known to humankind.

The English translation of the 900-page Anfal Campaign Trial Chamber Judgment is also available on the Grotian Moment Website. The Anfal campaign, which began in 1986 and lasted until 1989, featured the use of conventional and chemical warfare against the Kurdish population. Over 100,000 people were killed and 4,000 villages were wiped off the map. Hassan al-Majid, one of Saddam Hussein’s most feared henchmen who directed the Anfal Campaign, and two other co-defendants were sentenced to death by the Tribunal, while two others received life imprisonment. Although the Appeals Chamber has upheld the death sentences, to date they have not been carried out. Saddam Hussein himself was initially a defendant in the Anfal trial, but was executed half way through the proceedings in December of 2006 for crimes against humanity committed against the residents of Dujail.

Posted @ 1:38 AM | Experts Debate the Issues: The Anfal Trial | 0 Comments | 0 Trackbacks

The end of impunity?

The end of impunity?

By Mark V. Vlasic

Justice caught up with Radovan Karadzic Thursday, when he was formally charged with genocide, crimes against humanity and war crimes at the United Nations war crimes tribunal in The Hague. Thirteen years after the Srebrenica genocide, when Bosnian Serb forces rounded up more than 7,500 Muslim men and boys and slaughtered them in cold blood, thousands with their eyes blindfolded and their hands tied behind their backs, the former president of Serb-controlled Bosnia will find himself in the very same dock that held former Serbian President Slobodan Milosevic. Former President Karadzic is accused of presiding over the worst massacre in Europe since the Holocaust. And as he sits between two U.N. prison guards in an international tribunal, one must wonder, is the end of impunity finally coming to a close?

In 2002, I sat across from Slobodan Milosevic in the first war crimes trial of a head of state. It was a historic trial - one supported by the United Nations and the international community - and one that only a few years earlier, I thought never would happen. You see, up until April 2001, when the Butcher of the Balkans was arrested at his Belgrade villa, it was almost presumed that if you were a terrible dictator, or a head of state bent on mass slaughter and destruction, then you would never see the inside of a courtroom.

Lesser functionaries, yes - they might go to trial - but the top officials were virtually untouchable. As presidents, they probably would die in office, or escape to a well-appointed villa to live out their lives in comfortable exile. But now, in the short time I've been a lawyer, the very presumptions that have guided human history have changed ... and we've almost taken this for granted.

After the arrest and trial of Milosevic came the arrest and trial of former Iraqi President Saddam Hussein - the first war crimes trial of a Middle East leader in history - and then the arrest of former Liberian President Charles Taylor, who now also sits in the dock in The Hague. It seems that with every year, the dominoes of impunity keep falling, first Europe, then the Middle East, then Africa. And they continue to fall: Chad's exiled former president, Hissène Habré, is to stand trial at a special court in Senegal, while in Asia, another domino is falling.

Khieu Samphan, the former president of the Khmer Rouge, is facing a U.N.-sponsored court in Cambodia for his part in "the killing fields" - the slaughter of his own people - nearly 30 years ago.

Most recently, the International Criminal Court in The Hague has dropped another domino with its indictment of President Omar al-Bashir of Sudan for genocide. The question now is not if another president will ever be charged, but rather when. And who is next?

This is a fundamental change in the presumption that dictators will go unpunished. Unlike those of us who studied law and justice in the 20th century, the next generation of international prosecutors and foreign policy professionals - those graduating from universities and law schools in the 21st century - will only know a world where such terrible dictators do stand trial.

Such a presumption may empower the next generation of leaders to act - and perhaps with time - to bring an end to impunity. Sixty years after the world's experiment with international justice at Nuremberg - and after millions of lives shattered by war crimes, destruction and perverted leadership, we should be cautiously optimistic that there is some hope for humanity. But that hope is only sustained if we keep pressing the cause of justice. Let us challenge ourselves to press on, and let us hope that future dictators take notice.

Mark V. Vlasic, a senior fellow at Georgetown's Institute for International Law and Politics, served on the Srebrenica prosecution trial team at the U.N. war crimes tribunal. He helped to train the judges who tried Saddam Hussein, and worked with the President's Special Envoy to Sudan while serving as a White House fellow in 2006-07. The views expressed here are his own. This essay appeared on page B - 11 of the San Francisco Chronicle, August 1, 2008.

Posted @ 8:19 PM | Experts Debate the Issues: The Radovan Karadzic Trial | 14 Comments | 0 Trackbacks

Transcript of Anfal Trial Judges 1/29/08 Presentation at Case Western Reserve Now Available on Grotian Moment

On June 24, 2007, the Iraqi High Tribunal handed down its decision in the Anfal Campaign trial, convicting “Chemical Ali” (Ali Hassan al-Majid) and five other high ranking military leaders of the former Iraqi Regime of international crimes related to their roles in a 1980s crackdown against northern Iraqi Kurds (English version of Judgment available at http://law.case.edu/grotian-moment-blog/anfal/opinion.asp). On Tuesday, January 29, 2008, Case Western Reserve University School of Law hosted a two-hour live presentation by the President/Chief Appeals Judge of the Iraqi High Tribunal, the five judges who presided over the Anfal Campaign trial, and the Prosecutor who tried the case. This trip to the United States marked their first public appearance outside of Iraq. Through a translator, the Judges and Prosecutor discussed the challenges that they faced, the precedent that their historic judgment sets, and the question of whether the proceedings were fair. They also discussed the controversy surrounding the pending execution of “Chemical Ali” -- an issue that has been front page news this week. We have just posted the transcript of this extraordinary session (including Q and A) for world-wide viewing on the Grotian Moment Blog. (Click here).

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No Chaos in this Courtroom!

By Michael P. Scharf

This essay was originally posted on the Trial of Charles Taylor Blog:
http://charlestaylortrial.org/expert-commentary-2/professor-michael-p-scharf-no-chaos-in-this-courtroom/


After the conclusion of the Saddam Hussein trial, which was perhaps the messiest trial in legal history, I was invited by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to make a presentation to his staff about the best ways an international criminal court can maintain control of a war crimes trial in the face of a defendant or defense counsel who seeks to disrupt the proceedings. I subsequently was invited to speak about this important issue to the judges and prosecutors of the Rwanda Tribunal and Cambodia Tribunal. The text of my presentation is available on the ICC’s website: http://www.icc-cpi.int/otp/otp_guest_lectures.html and has subsequently been published as: Michael P. Scharf, Chaos in the Courtroom: Controlling Disruptive Defendants and Contumacious Counsel in War Crimes Trials, 39 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 155-170 (2007).

Because of the political context and widespread publicity, former leaders on trial such as Charles Taylor, Saddam Hussein, Slobodan Milosevic, and Vojislav Seselj, are more likely than ordinary defendants to perceive that they do not stand a chance of obtaining an acquittal by playing by the rules. Instead, such individuals will often attempt to derail the proceedings, hoping for a negotiated solution such as a pardon or amnesty. They may try to hijack the trial, hoping to transform themselves through their political diatribes into heroic martyrs in the eyes of their followers. And at the same time, they may seek to discredit the tribunal, hoping to provoke the judges into inappropriately harsh responses which will make the process appear patently unfair. For this reason, major war crimes trials are often perceived as extremely messy or worse, completely out of control. When the Charles Taylor trial began last summer, there were indications that it would follow that pattern, as Taylor made inflammatory speeches, fired his lawyer, and sought to represent himself at the trial’s first session.

As Robert Jackson, the Chief Prosecutor at the Nuremberg trial, observed sixty years ago, war crimes trials, whether before international tribunals or domestic courts, seek to establish a credible historic record of abuses and elevate the rule of law over the force of might, thereby facilitating the restoration of peace and the transition to democracy. While tolerating dissent is a healthy manifestation of a democratic government, a courtroom is not an arena in which dissension, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice. Unlike other forms of acceptable political expression, a disruptive defendant or defense lawyer who interferes with the “grandeur of court procedure” (as Hannah Arendt once described the judicial process) threatens the proper administration of criminal justice in several fundamental ways. First, disruptive conduct renders it more difficult for the defendant and any co-defendants to obtain a fair trial. Second, it hampers the court’s ability to facilitate the testimony of victims and other witnesses. And third, it undermines the public’s confidence in and respect for the legal process.

With this in mind, the Special Court for Sierra Leone wisely held in Prosecutor v. Norman (2005) that the defendant’s right to employ disruptive tactics which seek to discredit the judicial process must give way to the tribunal’s obligation to protect “the integrity of the proceedings” and “to ensure that the administration of justice is not brought into disrepute.” Following the recipe outlined in my presentation/article, the Special Court for Sierra Leone has taken appropriate actions to make sure that the Charles Taylor trial avoids the missteps of the messy war crimes trials of the past. For example, the Tribunal has required that Taylor be represented by counsel, rather than allow him to use self-representation to turn the trial into a circus. And it has provided Taylor and his counsel detailed warnings of the incremental and calibrated Judicial responses they can expect to encounter if they engage in disruptive conduct.

Based on my impressions from watching the live feed of the Taylor trial at http://www.sc-sl.org/ it appears that the Tribunal has succeeded. Defendant Charles Taylor is behaving himself quite admirably in the courtroom, and at the same time is taking a constructive part in his own defense. He is seen constantly writing and often passing sticky notes to his lawyer, Courtenay Griffiths, who uses them during cross-examination. Taylor stands respectfully when the judges enter the courtroom, and has done nothing remotely disruptive – though his very presence is of course intimidating to witnesses who fear for their lives and are under the heaviest security imaginable. The press made a big deal that Taylor blew a kiss to his daughter sitting in the public gallery viewing to the trial on the first day, and he occasionally stares people down in the public gallery, but for the most part he seems to be quietly paying attention to what's going on in the court.

Taylor’s new legal team has been doing an impressive job. British Barrister Courtenay Griffiths is quite tough on the witness, he grandstands from time to time, he tries to induce the witnesses into making exculpatory statements about his client, and he does his best to generate inconsistencies in their stories -- basically he's doing exactly what an outstanding defense attorney should be doing, which in turn bumps up the credibility of the entire process. The Taylor trial is animated - but within the ground rules of the court. This is a far cry from the Milosevic, Seselj and Saddam Trials, where the defendants and their counsel regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross-examination into political diatribes, and staged frequent walk-outs, hunger strikes, and boycotts. It remains to be seen whether things will continue to go so well, but for now it does appear that the SCSL has learned from the lessons of the past and is setting a good precedent for the future.

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Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law in Cleveland, Ohio (USA).

Posted @ 7:46 PM | Experts Debate the Issues: The Charles Taylor Trial | 11 Comments | 0 Trackbacks

Anfal Trial Judgement Now Available On Grotian Moment

On June 24, 2007, the Iraqi High Tribunal convicted “Chemical Ali” (Ali Hassan al-Majid) and five other military leaders of Saddam Hussein’s regime of international crimes related to their roles in a three-year crackdown of northern Iraqi Kurds known as the Anfal campaign. The Tribunal’s judgment marks one of the only times in history individuals have been convicted of genocide - the worst crime known to humankind.

The Iraqi High Tribunal and the US Regime Crimes Liaison Office have provided Case Western Reserve University the just-completed English translation of the Anfal Trial Judgment for us to post on the Grotian Moment Website. Click on Iraq High Tribunal Trials, Documents. This is the only place in the world where researchers can read the English translation of the historic opinion, whose 900 pages detail the legal and factual conclusions of the Tribunal. Note, at the request of RCLO all witness/victim/family names have been redacted for their safety.

The Anfal campaign, which began in 1986 and lasted until 1989, featured the use of conventional and chemical warfare against the Kurdish population. Over 100,000 people were killed and 4,000 villages were wiped off the map. Hassan al-Majid, one of Saddam Hussein’s most feared henchmen who directed the Anfal Campaign, and two other co-defendants were sentenced to death by the Tribunal, while two others received life imprisonment. Saddam Hussein himself was a defendant in the Anfal trial, but was executed half way through the proceedings in December of 2006 for crimes against humanity committed against the residents of Dujail.

The judges who presided over the Anfal trial will be making a live presentation at Case Western Reserve University School of Law on January 29, 2008. Through translators, the judges and other officers of the Iraqi High Tribunal will discuss the challenges faced, the precedent that their historic judgment set and the question of fairness in the proceedings. This will mark the judges’ first public appearance outside of Iraq. A transcript of the session will be posted on the “Grotian Moment” website after the event.

Posted @ 12:43 PM | Experts Debate the Issues: The Anfal Trial | 3 Comments | 0 Trackbacks

Why the Cambodia Tribunal Matters to the International Community

Why the Cambodia Tribunal Matters to the International Community

By David Scheffer

This essay was originally posted on “The Cambodia Tribunal Monitor" (www.cambodiatribunal.org) -- an independent professional web site that covers the Extraordinary Chambers in the Courts of Cambodia with webcasts of the trial proceedings and of interviews with Cambodians, documents pertaining to the history and constitutional structure of the Chambers, the pleadings, orders, decisions, and judgments of the Chambers, expert commentaries, and relevant news articles. CTM is operated by the Center for International Human Rights at Northwestern University School of Law and by the Documentation Center of Cambodia.

After a decade of turbulent negotiations, which often appeared so futile and yet so vitally important to keep alive, the Extraordinary Chambers in the Courts of Cambodia (ECCC) are now a fact. Lawyers and judges are pursuing justice for the estimated 1.7 million Cambodians who perished during the rule of the Khmer Rouge from April 1975 to January 1979. But it has been thirty years since the killing fields of Cambodia were first littered with their corpses and tilled by the millions of other Cambodians forced into slave labor by the Pol Pot regime. Why should the international community care, especially when so many years have passed, the surviving senior Khmer Rouge leaders are few in number, and Cambodia is at peace? Why invest in a hybrid judicial process fraught with risk and so uncertain in its ultimate outcome? The answers lie in the relentless quest to defeat impunity for the atrocity crimes (genocide, crimes against humanity, and war crimes) that define our collective past and present and that must not shape the future.
My colleague in Phnom Penh, Youk Chhang, who is the Executive Director of the Documentation Center of Cambodia, has written a companion essay explaining why the ECCC matters so much to the Cambodian people. In this essay I briefly explore why the ECCC should matter to the international community. With so many other judicial challenges in the realm of atrocity crimes elsewhere in the world, and with so many other war crimes tribunals requiring the financial and political support of nations, can the international community appreciate and sustain its initial support for the ECCC? Let me offer some answers to that question:

During the years of negotiations which began in 1997, I was often confronted with the cynical view that the pursuit of justice for the atrocity crimes of the Pol Pot regime was a hopelessly flawed endeavor. I reminded the cynics (and there were so many of them) that we have a supreme responsibility to those who perished in Cambodia to bring the leading perpetrators to justice. I could not in good conscience negotiate the creation of tribunals for the Balkans conflict of the early 1990’s, the Rwandan genocide of 1994, the Sierra Leone atrocities of the late 1990’s, or the permanent International Criminal Court and at the same time ignore what happened in Cambodia in the late 1970’s. Nor should the international community abandon the judicial challenge arising from that horrific assault on the citizens of Cambodia while the world held itself aloof in the aftermath of the Vietnam War. For Americans in particular, the secret bombing of Cambodia during the Nixon presidency, which helped to destabilize that country as the Khmer Rouge were gaining power, leaves us no moral choice but to make every possible effort to achieve some measure of credible accountability for the slaughter that ensued.

If the futile message after World War II was “never again,” the more hopeful lesson from Cambodia that the ECCC embodies is, “never forget.” Perhaps the most fundamental purpose of the ECCC from an international perspective is that it demonstrates, provided it continues to function pursuant to its constitutional design, that impunity will not prevail in Cambodia for surviving senior Khmer Rouge leaders or others most responsible for the atrocity crimes of the Pol Pot regime. That fact alone sends a powerful signal throughout the world that the international community is getting serious, indeed very serious, about accountability for atrocity crimes and that there is no stopwatch for justice. If the ECCC can administer fair trials, fully respectful of international standards of due process, the judgments of guilt or innocence that emerge will stand as beacons of hope for all victims of such assaults on humankind. They will know that if justice could be rendered in Cambodia—three decades after that nation’s apocalypse-then there must be hope that they too can build or find the courtroom that renders credible justice, if not immediately then within the lifetimes of the atrocity lords who must face their reckoning.

The ECCC is such a uniquely crafted court that the international community will focus on whether it fulfills its mandate with objectivity and integrity or whether it succumbs to political influence and manipulation. The ECCC is not an international criminal court. Rather, it is a special domestic Cambodian court that functions in partnership with the United Nations (pursuant to a treaty and a specially designed Cambodian law) and that embraces a great deal of international criminal law and international standards of due process. While the Special Court for Sierra Leone, which was created by treaty between the Government of Sierra Leone and the United Nations, is an international criminal court, the ECCC was designed somewhat differently as a national court of “extraordinary” international character. Many international observers will watch and monitor how the ECCC will go about its daily tasks of investigation, prosecution, adjudication, and sentencing without falling prey to political intrigues that seem to define every aspect of Cambodian society. There is no question that the ECCC is an experiment, but one for which there really was no viable alternative after years of negotiations. If the ECCC succeeds in achieving credible justice within the Cambodian judiciary, it will demonstrate that international justice can be distributed among national and international courts with greater confidence that we could have imagined a decade or so ago.

Finally, the ECCC is an important test for the United Nations, which is partnered so closely with the Royal Government of Cambodia in thestaffing, financing, and administration of the Chambers. The international community would expect nothing less than the high standards of performance for the ECCC and the Cambodian government that are required by U.N. officials. How the United Nations handles this delicate relationship, which at all times requires patience, perseverance, diplomatic tact, and the defense of the rule of law, will say a lot about the international organization and its ability to manage novel but essential mechanisms of domestic and international justice.

The Cambodia Tribunal Monitor web site is also a unique international venture. It will webcast the trial proceedings of the ECCC and interviews with Cambodian citizens reacting to the trials. By bringing the trials to the forefront of the international audience and to the growing number of Cambodians with access to the internet, the Cambodia Tribunal Monitor serves the larger purpose of ending impunity through education and awareness of the atrocities of the past. It will serve that purpose well if succeeding generations across the globe never forget what happened in Cambodia.

Posted @ 3:48 PM | Experts Debate the Issues: Khmer Rouge Genocide Trials | 9 Comments | 0 Trackbacks

Playing The Defence Game - The Trial of Charles Taylor

Mark Ellis

The start of Charles Taylor’s trial provides a compelling reason why newly established international and domestic courts should focus on the issue of assignment of defence counsel. The trial of Charles Taylor began in The Hague (International Criminal Court) on 4 June 2007, under the auspices of the Special Court of Sierra Leone. On this first day, Taylor refused to appear in court, choosing instead to pass along a letter to his counsel, Karim Khan. Asked to explain the absence of his client, Mr. Khan read the letter aloud. In relevant parts, the letter noted concerns with the execution of justice and fairness, expressing particular concerns for the imbalance of resources as between the defence and the prosecution. Mr. Taylor also used the letter to terminate Mr. Khan as his legal representative, noting the following:

I am driven to the conclusion that I will not receive a fair trial before the Special Court at this point. It is therefore with great regret that I must decline to attend any further hearings until adequate time and facilities are provided to my Defence team and until my other long-standing reasonable complaints are dealt with. It follows that I must terminate instructions to my legal representatives in this matter. Despite my complete confidence in their ability and competence, I must ask that they cease to represent me before the Special Court and instruct them accordingly.

If representation by Defence Counsel is to be terminated or withdrawn, unless otherwise ordered by a Chamber such termination or withdrawal shall not take effect until a replacement Defence Counsel is engaged by the client or assigned by the Principal Defender, or the client has notified the Registrar in writing of his intention to conduct his own defence.

The Registrar is directed to immediately facilitate the Principal Defender to travel to The Hague for the purpose of speaking with Mr Taylor and sorting out his defence problems. The Registrar is further directed to ensure that logistically the accused has adequate facilities, in accordance with Article 17 of the Statute, without further delay.

One lead counsel of the qualities described or mentioned in Rule 45(C) of the rules, two co-counsel of the quality described in Rule 45(C) of the rules, and one senior investigator at a P4 level. These will supplement the residual members of the team of Charles Taylor as they now exist, the various assistants.

The Chamber agrees that to compel Duty Counsel to represent the accused during this one week, without affording him adequate administrative support or time to prepare, would indeed amount to a violation of Mr Taylor’s fair-trial rights in as far as counsel could not be expected to effectively cross-examine the witnesses, Prosecution witnesses, nor effectively challenge the Prosecution evidence.

It will be remembered that the Trial Chamber did, as early as March 2007 and on several occasions after that, warn of unlikely due delay emanating from the failure of the Registry to address and resolve Mr Taylor’s representation and investigative requirements in good time before the start of the trial. Thus, while the Chamber generally frowns upon undue delay of these proceedings, we are mindful of our overriding obligation to conduct a fair trial and to guarantee the statutory rights of Mr Taylor, who, in this case, should not be penalised for the laxity of the Registry.

Furthermore, the Trial Chamber is of the view that the alternative proposed by the Prosecutor; namely, that of calling the experts today to give their evidence in-chief and then to postpone their cross-examination until August when a new Defence team is in place, would also not be in the interests of justice or of a fair trial…

Posted @ 4:24 PM | Experts Debate the Issues: The Charles Taylor Trial | 13 Comments | 0 Trackbacks

Into the Dark Heart of the Khmer Rouge Tribunal

EDITORIAL NOTE: THIS IS THE INAUGURAL ESSAY FOR THE "GROTIAN MOMENT: CAMBODIA GENOCIDE TRIALS BLOG." OUR PANEL INCLUDES EXPERTS, LIKE PROFESSOR JOHN HALL, WHO ARE HIGHLY CRITICAL OF THE CAMBODIA TRIBUNAL, AND THOSE WHO SUPPORT THE PROJECT, BELIEVING THINGS ARE PROGRESSING AS WELL AS COULD BE EXPECTED IN LIGHT OF THE MANY CHALLENGES. IT IS OUR HOPE THAT THIS INITIAL ESSAY WILL LAUNCH A SPIRITED DEBATE, BOTH AMONG OUR "GROTIAN" BLOGGERS AND THE PUBLIC AT LARGE -- TO APPEAR IN THE COMING DAYS AND MONTHS ON THIS WEBSITE.

John A. Hall

As I noted in my Wall Street Journal op-ed on September 21 (“Yet Another U.N. Scandal,” A.15), the co-investigating judges at the U.N.-sponsored Khmer Rouge tribunal in Phnom Penh have now formally detained Nuon Chea, “Big Brother Number Two.” Nuon Chea joins Duch, the former head of the prison at Tuol Sleng, who has been in the custody of the tribunal since August. These steps indicate that the Khmer Rouge tribunal is, at some level, moving towards a successful resolution of its mandate. Despite many concerns, the prosecutors and co-investigating judges are clearly achieving something quite significant. Most observers with any semblance of humanity are, of course, delighted by the prospect that perpetrators of some of the worst human rights abuses of the Twentieth Century are – after a long and shameful delay– finally going to be brought to justice.

Unfortunately, this optimism – though understandable - may be somewhat premature. Indeed, the Cambodian side of the tribunal in Phnom Penh has been found to be so flawed, so hopelessly corrupt, and human resource management so untrustworthy, that OAPR and independent auditors have even recommended that serious consideration should be given to the U.N. withdrawing from the tribunal unless significant procedural and managerial changes are adopted by the Cambodians.

As is well known, after nearly a decade of acrimonious negotiations, the U.N. and the Cambodian government established a hybrid tribunal within the Cambodian court system – “hybrid” because it combines international and Cambodian law, and employs a mix of Cambodian and international judges, lawyers, and staff (resulting in what has come to be seen in terms of almost competing camps: the “Cambodian side” and the “international side” of the ECCC). Unfortunately, the U.N. agreed to demands made by the Cambodian government that Cambodian judges play a decisive and indeed dominant role. This is in sharp contrast to other U.N.-sponsored hybrid tribunals, where the negotiated structure ensured that it would be the international judges, rather than the local jurists, who would have the upper hand. Further, overall management of the tribunal is largely the responsibility of the Cambodian side.

Critics of the Khmer Rouge tribunal’s hybrid nature have expressed reservations as to the wisdom of establishing a tribunal that gives a dominant role to Cambodian judges, lawyers and administrators. These concerns stemmed, of course, from the belief that the Cambodian government is not to be trusted, and that the Cambodian judiciary and legal system are corrupt, inefficient, and poorly administered. Perhaps the greatest threat to the legitimacy of the tribunal is the lack of independence of the Cambodian judges. There are worrying signs of governmental intrusion into the inner-workings of the ECCC: in August the Cambodian co-investigating judge, You Bun Leng was elevated by the Cambodian government to become president of the Cambodian Court of Appeals. This was in explicit violation of the rules governing the tribunal, which require that judges appointed to the tribunal must serve until their duties at the tribunal are completed, a rule intended to limit interference by the Cambodian government. Only after an aggressive lobbying campaign by the international side did You Bun Leng agree to remain at the tribunal. How this will play out in the future remains unclear.

As I noted in my op-ed, there are other reasons to believe the tribunal may be seriously flawed. New York-based Open Society Justice Initiative (OSJI) has raised allegations of a lack of transparency in the hiring practices for Cambodian appointees to the tribunal, and reported that the Cambodian employees – including the judges - are required to kick-back part of their salaries to senior Cambodian tribunal personnel. In response to OSJI’s allegations, the Cambodian management of the tribunal attempted to unilaterally ban OSJI lawyers from any contact with the tribunal, its staff, and its facilities.

OSJI’s allegations were an embarrassment to UNDP, which is responsible for administering a significant portion of the three-year $13.3 million national program budget for the Cambodian side of the tribunal. In response to OSJI’s allegations, UNDP brought in outside auditors to work with OAPR to assess human resources management in the Cambodian side of the tribunal. The resulting Special Audit has not been publicly released by UNDP. Indeed, journalists and observers noted to me that while the tribunal is typically highly porous, this particular document was impossible for them to obtain. This lack of transparency on an issue of such key importance to the tribunal is deeply worrying. Indeed, one U.N. appointee indicated to me that UNDP’s determination to suppress the report is likely to become “a massive public relations fiasco.” Indeed.

As I noted in my op-ed, the draft special audit which I saw makes for grim reading. The auditors found unreasonably inflated pay scales; lack of transparency in hiring practices, and the appointment of Cambodian staff lacking the qualifications required for their positions, while at the same time the international managers appointed by the U.N. have been restricted from participating in the performance evaluations of the Cambodian staff who work under them. The independent auditors concluded that the hiring process was so deeply flawed that all the Cambodian appointees to the tribunal should be fired, and a new, transparent and rigorous recruitment process initiated. This is an extraordinary recommendation given that the tribunal is half-way through its 3-year mandate, and reflects the seriousness of the auditors’ concerns. Even more shocking was the fact that the auditors recommended that serious consideration should be given to withdrawing entirely from the tribunal unless the Cambodian side agrees to specific measures essential to the future integrity of the tribunal.

It will be interesting to see how the ECCC, the U.N., donor nations, and the broader diplomatic community react to the problems surfacing at the tribunal. It will also be interesting to see what else may emerge in the coming weeks and months. We are all, of course, now paying careful attention to the events unfolding in Phnom Penh. Hopefully, through thoughtful participation in this Blog, we can participate in an on-going conversation that will include the various stakeholders as well as scholarly commentators. In this way we can not just comment on, but also perhaps positively influence, the future of the tribunal.

Posted @ 1:45 AM | Experts Debate the Issues: Khmer Rouge Genocide Trials | 6 Comments | 0 Trackbacks

Grotian Moment Update

As the Iraqi High Tribunal trials proceed, this website will continue to post breaking news and expert commentary. We have plans to expand the Grotian Moment Blog to cover the proceedings of the Extraordinary Chambers in the Courts of Cambodia when the Cambodia Tribunal's Rules are promulgated, indictments are issued, and pre-trial proceedings commence in coming months. Meanwhile, several of our expert bloggers ("the Grotians") are also participating in the newly launched International Association of Penal Law's "AIDP Blog," which focuses on current developments in international and comparative criminal law. We hope you will continue to post your comments on the Grotian Moment, and also visit the new AIDP Blog: www.aidpblog.org.

Posted @ 10:56 PM | Experts Debate the Issues: The Anfal Trial | 2 Comments | 0 Trackbacks

Ten Lessons from the Saddam Trial

Posted @ 1:10 AM | Experts Debate the Issues: The Anfal Trial | 96 Comments | 0 Trackbacks

UN High Commissioner for Human Rights Louise Arbour's amicus brief on the issue of capital punishment

United Nations High Commissioner for Human Rights Louise Arbour's amicus brief in the Matter of Sentencing of Taha Yassin Ramadan.

http://law.case.edu/saddamtrial/documents/arbour_amicus_curiae_brief_en.pdf

Posted @ 4:18 PM | Experts Debate the Issues: The Anfal Trial | 15 Comments | 0 Trackbacks