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 | 5 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 | 46 Comments | 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 | 33 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 | 22 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 | 26 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 | 5 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 | 18 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 | 24 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 | 42 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 | 11 Comments | 0 Trackbacks

Ten Lessons from the Saddam Trial

Posted @ 1:10 AM | Experts Debate the Issues: The Anfal Trial | 102 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

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Grotian Moment First Website in World to post English Translation of Appeals Chamber Opinion

On January 3, 2007, the "Grotian Moment Website" became the first place in the world for the public to review an English Translation of the 24-page Opinion issued by the Iraqi High Tribunal Appellate Chamber in the Dujail Trial. The opinion is now available at http://law.case.edu/saddamtrial/content.asp?id=88. The English Translation of the 298-page Opinion issued by the Iraqi High Tribunal Trial Chamber in the Dujail Trial is also available from the Grotian Moment Website at http://law.case.edu/saddamtrial/dujail/opinion.asp.

Posted @ 12:30 PM | Experts Debate the Issues: The Anfal Trial | 74 Comments | 0 Trackbacks

Dujail Issue #46: Saddam's Execution

Why Saddam’s Execution Was Unlawful
by Kevin Jon Heller

Cite as: Michael P. Scharf, Gregory S. McNeal & Brianne M. Draffin, A Teacher's Guide and Supplement to Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 29 (2007).

Two days before Saddam was executed, Iraq's deputy justice minister, Bosho Ibrahim, told the Associated Press that executing Saddam within 30 days of the Cassation Panel’s decision to uphold his death sentence would violate Iraqi law. “The law does not say within 30 days,” he said, “it says after the lapse of 30 days.” The Cassation Panel rejected Ibrahim’s claim, insisting “that the law stipulated the sentence be implemented within 30 days.”

Ibrahim, however, was absolutely right.

The key is Article 27(Second) of the IHT Statute, which provides that “The punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.” The Cassation Panel obviously assumed that Saddam’s death sentence became “final and non-appealable” when it issued its decision upholding the sentence.

That assumption is incorrect. According to Paragraph 266 of the Iraqi Code of Criminal Procedure, “the convicted person… may request the correction of a legal error in the decision issued by the Court of Cassation, provided the request is submitted within 30 days, counted from the date a convicted, imprisoned or detained person is notified of the Court of Cassation decision.” The Court of Cassation (what the IHT calls the Cassation Panel) must then accept or reject that request. At that point – and only at that point – does its previous decision become final and non-appealable, triggering the 30-day execution window established by Article 27(Second).

Paragraph 266 – to which Ibrahim was clearly referring in his comments to the Associated Press – was binding on the Cassation Panel in Saddam’s trial. Rule 66(First) of the IHT Rules of Procedure and Evidence explicitly provides that “the judgment shall be implemented in accordance with these rules and the provisions of Iraqi Criminal Procedure law No.23 of 1971.”

Because the Cassation Panel upheld Saddam's death sentence on December 26, Saddam had the legal right until January 25 to ask the Panel to correct legal errors in its decision. At the time of his execution, therefore, his death sentence was neither final nor non-appealable – making the execution a blatant violation of Iraqi criminal procedure.

To many, such arcane legal considerations may seem trivial. There was, of course, little if any chance that the Cassation Panel would grant a request for correction. Regardless, the Panel’s failure to understand its own law – or, more likely, its decision to intentionally disregard it – should trouble anyone who is concerned with the future of the Iraqi judiciary, which is struggling to emerge from its long slumber under Saddam’s regime. The IHT has already buried Saddam. We can only hope that it does not bury the rule of law along with him.

Posted @ 12:01 PM | Experts Debate the Issues: The Anfal Trial | 40 Comments | 0 Trackbacks

Dujail Issue #45: Analysis of the Dujail Judgment and Opinion

Grotian Moment First Website in World to Host English Translation

On December 4, 2006, the "Grotian Moment Website" became the first place in the world for the public to review an English Translation of the 298-page Opinion issued by the Iraqi High Tribunal in the Dujail Trial -- the first case against Saddam Hussein. The opinion is now available at: http://law.case.edu/saddamtrial/dujail/opinion.asp

In the next few days, our Saddam Trial Expert panel will be posting several new essays analyzing and critiquing the Dujail Opinion. Earlier this year, the award-winning Grotian Moment Website was also the first to post the documents and exhibits admitted into evidence during the trial.

Essays from the Website appear in the first published book about the Dujail Trial, Michael P. Scharf and Gregory S. McNeal's "Saddam on Trial," available from Amazon.com HERE.

1- Statement of the type of charges brought by the tribunal against each defendant, in addition to stating the elements of the crime or crimes ascribed to him.
2- Summary of the statements of the complainants and witnesses who testified against the defendant during the investigation and trial.
3- Summary of the pleas by the defendant during the investigation and trial.
4- Summary of the statements of the witnesses that testified for the defendant.
5- The questions brought up by the above paragraphs which require responses from the tribunal.
6- Verifying whether evidence against the defendant exists and revealing same in case these are available.
7- Specifying the legal description of the action/actions on the basis of which the defendant shall be incriminated in case sufficient evidence exists, and the reasons that call for discharging the defendant in case there is no sufficient evidence to convict the defendant, or there is adequate reason to declare his innocence, in case the defendant could not be proven guilty of committing a certain crime that falls within the jurisdiction of the tribunal, or in case no evidence or inference is established to prove his guilt in committing a crime.

Posted @ 11:02 AM | Experts Debate the Issues: The Anfal Trial | 25 Comments | 0 Trackbacks

Dujail Issue #44: What to Look for in the Dujail Trial Judgment

What to Look For in the Dujail Trial Judgment
By Professor Michael P. Scharf

Cite as: Michael P. Scharf, Gregory S. McNeal & Brianne M. Draffin, A Teacher's Guide and Supplement to Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 12 (2007).

The long-awaited first judgment of the Iraqi High Tribunal (IHT) is scheduled to be issued on Sunday, November 5, 2006. According to Article 23 of the IHT Statute, the Trial Chamber’s judgment must reflect a majority decision of the five Trial Chamber judges, it must be issued in writing, and dissenting opinions shall be appended. Whether the IHT process is ultimately viewed as legitimate will be determined largely by the quality and substance of this historic legal opinion. This piece previews the most important issues that are likely to be resolved in the Dujail judgment.

1. Look for the IHT’s disposition of the pre-trial motions challenging the jurisdiction and legitimacy of the Tribunal.

The IHT has been severely criticized for neither conducting preliminary hearings on procedural matters nor producing written opinions on such matters. Presumably these will be dealt with in the judgment of the Tribunal in accordance with Iraqi legal tradition. It will be extremely interesting to see how the Tribunal responds to the Defense arguments that the IHT is not a legitimate judicial body. In particular, the Defense has asserted that the creation of the IHT by an Occupying Power (the United States) violates the Geneva Conventions, while the Prosecution responded by arguing out that Iraqi’s democratically-elected National Assembly subsequently approved the Tribunal’s Statute in August 2005, thereby giving the Tribunal legitimacy. The defense also argued that the prosecution of Saddam Hussein in an Iraqi Court is barred by head of state immunity under Iraqi law, while the Prosecution countered that the Iraqi National Assembly legitimately revoked such immunity by approving the Statute of the IHT in August 2005.

It will also be interesting to see if/how the judgment deals with defense complaints that the Presiding Judge, Ra’uf Abdel-Rhaman, was biased due to alleged past membership in an anti-Ba’athist organization and should have been removed. Similarly, it will be interesting to see if/how the judgment addresses the defendants’ claims that they were physically abused while in custody, as under international precedent such abuse could constitute a ground for dismissal of the case.

The judgment may also address Defense arguments that certain rulings by the IHT denied the defendants a fair trial. Specifically, the judgment is likely to address the propriety of waiting until half-way through the trial to announce the detailed charges, the practice of frequently expelling defense counsel and defendants from the courtroom for disruptive behavior, the use of court-appointed counsel when the Defense Counsel were boycotting the proceedings or were expelled from the courtroom, and the Tribunal’s refusal to permit the Defense to call a number of their remaining witnesses.

2. Look for the IHT’s findings of fact and conclusions of law related to the charges against the eight co-defendants

The Tribunal’s judgment will analyze whether the various acts carried out by the Ba’ath Regime, which were described in the testimony and documents admitted into evidence during the trial, constitute crimes against humanity. These acts included the shelling and strafing of the town of Dujail by helicoptor gunships; the destruction of the town’s homes, water supplies, and orchards; rounding up 399 townspeople, including young children, for interrogation; employing torture and causing the deaths of 50 people during interrogation; ordering 148 people summarily tried en masse before the Revolutionary Court; and ordering all of these people executed after the trial which lasted a single session. To establish crimes against humanity under Article 12 of the IHT Statute, there must be proof of widespread and systematic mistreatment, torture, and/or killings of civilians.

One of the most important aspects of the judgment may be how the Tribunal deals with the issue of document authenticity. The trial turned out to be much more document-based than was anticipated. Some of the most important documents included Saddam’s order for the execution of the Dujail townspeople, and his order that Medals of Honor be awarded to the security forces involved in their apprehension and interrogation. The Defense has challenged the authenticity of these and other documents, and argued that the court-appointed experts who affirmed Saddam’s signature on them cannot be trusted as independent because they all have links to Iraq’s interior ministry. In particular, the defense strenuously argued that the document indicating that Saddam Hussein approved the execution of people under the age of eighteen was forged. Similarly, the judgment will need to address the Defense claims that certain witnesses were offered money and/or threatened with bodily harm by the chief prosecutor to give false testimony.

3. Look for the IHT’s analysis of theories of liability

To justify a conviction, the IHT must explain how each of the eight defendants can be held criminally responsible for the alleged crimes. Under principles of direct responsibility and command responsibility, the IHT is likely to find that Saddam Hussein and his half-brother Barzan Ibrahim (former head of the Makhubarat intelligence agency) are criminally responsible either for issuing orders (to attack the city, to round up hundreds of townspeople for interrogation, to try them before the Revolutionary Court, and to order their execution), or for failing to prevent or punish subordinates for unlawful acts (such as destroying the Dujail water supply, burning down the orchards, and/or torturing and killing the DuJail detainees).

Under the precedent of the Nuremberg-era Alstoetter Case, defendant Awad al-Bandar (the head of Saddam’s Revolutionary Court) might be held responsible if the Tribunal concludes that he ordered the executions of the Dujail defendants knowing that the Dujail trial was patently unfair and that his court was being used as part of a systematic attack against the civilian population of Dujail. The IHT’s judgment will need to address the defense witness testimony that the proceedings before the Revolutionary Court were fair under the circumstances. If it convicts al-Bandar, the IHT will likely spell out in detail those attributes of a fair trial that were lacking in the Revolutionary Court case against the Dujail townspeople. The irony here is that the IHT itself has been accused of violating many of those fair trial principles in the handling of the Dujail and Anfal trials.

To warrant a conviction of the three lesser known co-defendants -- Mizhar Abdullah Ruwayyid, Abdullah Kazim Ruwayyid, Ali Dayih and Mohammed Azawi Ali – the IHT must explain how the evidence proves these informers knew or should have known that a crime against humanity would befall the neighbors on whom they informed. Many experts believe that the IHT will acquit some or all of the lesser known co-defendants.

4. Look for the IHT response to the “war on terrorism defense”

The Tribunal’s judgment will examine the Defense argument that the Defendants’ actions were lawful based on the necessity to combat/suppress the terrorists and insurgents operating in Dujail who tried to assassinate Saddam. Related to this is the question of whether comparisons between the Ba’ath Regime’s actions in 1982 and the way the United States has conducted its current war on terrorism (namely by attacking towns in Afghanistan and Iraq and imprisoning suspects at Abu Ghraib and Guantanamo Bay) are legally relevant. If the Tribunal concludes that such comparisons are legally relevant, look for its analysis of whether American actions are distinguishable from the Bath Party’s actions in terms of necessity, proportionality, and treatment of subordinates who committed crimes. This may well be the most important part of the Tribunal’s judgment. To the extent that it propounds on where the line must be drawn in what a government can legitimately do in responding to terrorism, the IHT precedent will have significance well beyond the situation in Iraq.

5. Look for how the IHT handles the question of the death penalty.

Finally, in the case of convictions, the judgment will address the issue of whether the death penalty is the appropriate sentence for any or all of the defendants, in light of the relative gravity of the crimes charged, the defendants’ position in the hierarchy of power, and their personal involvement in the crimes. Some experts are concerned that a death sentence for Saddam could ignite a full-blown civil war, while others are convinced that the sooner he is “removed from the scene” the sooner peace can take hold in Iraq. Victims groups, on the other hand, do not want to see the death penalty implemented in a way that prevents Saddam Hussein from standing trial and facing his accusers in the ongoing Anfal case and in the Marsh Arab case which is scheduled to begin in 2007. In any event, a death sentence would not be implemented until after the conclusion of the Appeals process, which is likely to take several more months.

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The Trial Chamber’s judgment will not be the last word on these issues, as both the Defense and the Prosecution are entitled to appeal the judgment to the nine-member Appeals Chamber. Under Article 25 of the IHT Statute, such appeals may be based on errors of law, procedure or fact. Notification of appeal must be made within fifteen days of the judgment. Submission of briefs and oral arguments follow thereafter. The decision of the Appeals Chamber may not be rendered until spring 2007.

For more information about the Iraqi High Tribunal, see the new book by Michael P. Scharf and Gregory McNeal, “Saddam on Trial: Understanding and Debating the Iraqi High Tribunal,” which is now available from Carolina Academic Press: http://www.cap-press.com/books/1625 ($27.95 – ships within two days).

Posted @ 11:50 AM | Experts Debate the Issues: The Anfal Trial | 4 Comments | 0 Trackbacks

"Lessons from the Saddam Trial" now available online

Posted @ 4:55 AM | Experts Debate the Issues: The Anfal Trial | 18 Comments | 0 Trackbacks

Anfal Issue #2: Will Saddam Live to Hear the Verdict in the Anfal Trial?

Maybe – by Kevin Jon Heller

Cite as: Michael P. Scharf, Gregory S. McNeal & Brianne M. Draffin, A Teacher's Guide and Supplement to Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 10 (2007).

In his excellent and provocative post on the Anfal trial (#37), Michael Scharf says that “(s)ince the Anfal case is scheduled to begin immediately after the close of the Dujail trial (while the Dujail verdict is being appealed to the Appeals chamber of the IHT), this means that whatever the Dujail verdict, Saddam Hussein will be available to face his accusers in the Anfal trial.” A close examination of the relevant Iraqi law, however, indicates otherwise. Saddam may well live to see the Anfal trial, which is scheduled to begin today, August 21st – but if he does, it will almost certainly be because of politics, not law.

The IHT Trial Chamber is expected to deliver its verdict in the Dujail case on October 16th. Assuming that Saddam is sentenced to death – a safe assumption – that verdict would be automatically reviewed by the Court of Cassation; Paragraph 254(A) of the Iraqi Code of Criminal Procedure (ICCP) specifically provides that “(i)f the Criminal Court has issued a sentence of death or life imprisonment, it must send a file on the case to the Court of Cassation within ten days of the issue of the judgement, so that it can be reviewed for cassation, even if an appeal has not been lodged.”

The Court of Cassation would thus have Saddam’s case file by October 26th. It would not, however, immediately begin its review. ICCP ¶ 254(B) provides that “(t)he Court of Cassation accepts statements submitted by the accused and those involved in the case before it issues its decision.” The ICCP is silent on how long the defense and the prosecution would have to submit those statements, but it is reasonable to assume that they would be due within 30 days of the Trial Chamber’s verdict – ICCP ¶ 252(A) requires all petitioners to the Court of Cassation (prosecution and defense alike) to file their petitions within that time-frame.

At the latest, then, the Court of Cassation would begin its review of the Dujail verdict on November 16th. It is impossible to know precisely how long the Court would take to complete its review; Iraqi criminal law does not impose a time limit. There is no reason to believe, however, that the Court’s deliberations would be protracted; indeed, the Chief Prosecutor in the Dujail case, Jaafar al-Moussawi, has told Newsweek that because the Court has no backlog of cases, the review “would only take days.”

Even if al-Moussawi is being overly optimistic, the Court of Cassation should reach a decision by the end of 2006. At that point, assuming that the Court upheld Saddam’s death sentence, the judgment would become final not long after January 31, 2007 – ICCP ¶ 266(A) gives the convicted person 30 days to request correction of a legal error in a Court of Cassation decision.

Once Saddam’s death sentence became final, it would have to be carried out within 30 days. The IHT Statute is explicit on this point: Article 27(2) provides that “(t)he punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.”

Even a generous interpretation of Iraqi criminal law, in short, leads to the conclusion that Saddam would be executed no later than March 1, 2006 – little more than six months after the Anfal trial began. That simply is not enough time to complete the Anfal trial, which Michael Newton has described as “an ambitious undertaking that would stretch the resources and capacity of almost any judicial body around the world.” His assessment is sound; the Anfal trial includes charges of genocide in addition to war crimes and crimes against humanity, and genocide – to quote Michael Scharf – is “the worst crime known to humankind, and… the hardest crime to prove.” Indeed, the much less complicated Dujail trial will have lasted more than ten months by the time the Trial Chamber hands down its verdict.

The conclusion is thus inescapable: if the IHT follows the law, Saddam will not live to see a verdict in the Anfal trial. There is more than a touch of irony in this; although ICCP ¶ 286 traditionally gave the President of Iraq the authority to commute a death sentence, that provision was superseded by Article 27(1) of the IHT Statute, which specifically provides that “(n)o authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.” By enacting Article 27, the Iraqi government not only placed Iraq in violation of its obligations under Article 6(4) of the ICCPR, which requires States to guarantee that “(a)mnesty, pardon or commutation of the sentence of death may be granted in all cases,” it eliminated the one legal mechanism that it could have used to avoid executing Saddam prematurely.

None of this, of course, means that we will never see a verdict in the Anfal trial. But it does mean that, if we do, it will be because the IHT decided that justice for Saddam’s Kurdish victims was more important than the rule of law. An understandable trade, to be sure – but one that would bode ill for the future of the Iraqi judicial system.

Posted @ 8:59 AM | Experts Debate the Issues: The Anfal Trial | 30 Comments | 0 Trackbacks

Issue #43: Lessons Learned from the Dujail Trial

Post-Conflict Justice in Iraq:
Is the Glass Half-Full, Half-Empty, or is it a Phyrric Achievement?
By M. Cherif Bassiouni

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 245 (2006).

The Iraqi High Criminal Court (IHCC), formerly called the Iraq Special Tribunal (IST), has faced many difficulties since its inception. The past instructed the present, and shaped the future of an institution that was much needed, but so far has yielded few positive results.

Prior to the establishment of the IST in 2003, there was a great deal of ambivalence in the US and among Iraqi expatriates about whether there should be an international tribunal established by the Security Council like the ICTY and ICTR, a hybrid international/national tribunal like that of Sierra Leone, or a purely national tribunal, which is part of the ordinary Iraqi system of justice. The Department of State (DoS) Future of Iraq Project’s Working Group on Justice dealt with these three options, on the basis of a study I prepared comparing the merits of the three models, including a complete statute for an international model. The National Security Council (NSC) however, for political reasons, did not circulate the DoS report, and the insights and recommendations of the Future of Iraq Project’s Working Group on Justice were unused by the Administration. This loss had something to do with the subsequent errors made in connection with the IST’s establishment and statute.

Some government and UN experts, academics, and NGOs favored the internationalized approach through the Security Council’s establishment of a tribunal to prosecute major Iraqi offenders. Others from these categories favored a hybrid tribunal which would balance international concerns and Iraqi legal tradition. Few favored the use of Iraq’s national criminal justice system because they thought that system incapable of producing fair and impartial prosecutions. I did not share these views. My reasons were that a national institution would advance the goals of the Rule of law in Iraq and help sustain a new era for the Iraqi legal system, provided the judges, investigating judges, and prosecutors received adequate training, the institution to be well-staffed and well-funded. I also thought it would be cost-effective and provide for the death penalty as the Iraqi legal system permits, because no one in that country would have tolerated the possibility of Saddam and his cronies leading a fairly comfortable life in some international prison. This was the same issue faced at Nuremberg, where it was resolved to apply the death penalty. It is noteworthy, however, to recall Winston Churchill’s argument to Franklin Roosevelt and Joseph Stalin at the Moscow Summit of 1943, when he argued against the prosecution of major Nazi war criminals, urging instead that they should be given a short summary court martial and then lined up and shot. In the end of course, the longer-lasting wisdom and beneficial effect of the Nuremberg prosecutions proved their merit and value.

The debate over which model was to apply took some time to settle, but the Administration gave it low priority though it favored the national model, if for no other reason than it felt it could control it. I also suspect that at the time, namely, between January and December 2003, some in the Administration thought that national proceedings conducted by a “special” tribunal under US control would not only work fast and efficiently, but would also emphasize the brutally repressive nature of that regime over the last 30 years, thus justifying the US invasion in the eyes of American and world public opinion. By analogy to the Eichmann trial in Israel in 1960, which established the existence and extent of the Holocaust, the prosecution of Saddam and his cronies was expected to establish the extent and scope of Saddam’s brutal regime, including the use of chemical weapons against Iran and the Iraqi people, thus implying the possibility of the use of similar weapons which the US claimed was the basis for its invasion.

The US managers of Iraqi post-conflict justice who were at the NSC, Department of Defense (DoD) and Department of Justice (DoJ) failed to see that “special” tribunals have the connotation of exceptional tribunals, which are in violation of international human rights law and thus smack of illegitimacy. Not only the name, but other aspects of the IST’s statute which remained unchanged in the modification brought about in the IHCC in 2005, are in violation of international principles of legality, which Iraqi law also embodies. This applies to the definition of the crimes within the jurisdiction of the tribunal and also to several other provisions of the statute. The statute that US drafters developed was so influenced by American thinking that it had the fingerprints of the foreign occupying power all over it. It also had glaring violations of Iraqi law. This was followed by a decision to establish the IST through the Governing Council, a politically-appointed body by the US – a foreign occupying power in Iraq. Moreover, the selection of judges, investigating judges, and prosecutors by the GC was in violation of Iraqi laws on judicial appointments. All of this cast a dark shadow on the tribunal’s legitimacy and legality, which continued even though a name change and minor modifications occurred in 2005.

Since Iraq was subject to the exclusive control of the Coalition Provisional Authority (CPA) run by US Ambassador Paul Bremer, the IST statute was promulgated by Bremer on December 10, 2003, by CPA Order No. 48, thus confirming the “made in America” label of the institution. Moreover, the IST judges, investigating judges and prosecutors were formally approved by Bremer. The US, acting through the Department of Justice and its Regime Crimes Liaison Office (RCLO), controlled the Tribunal, conducted and directed its investigative activities, collected and stored the evidence, directed its operations, funded it, and had the seat of the Tribunal within the “Green Zone.” In time, the judges, investigating judges, and prosecutors whose salaries were paid by the RCLO moved into the Green Zone where everything was concentrated under US protection. There was little doubt about who owned the IST. Some things changed after 2005, particularly, the Iraqis taking ownership of the process, but the rest remained as it was.

The choice of this post-conflict justice modality was dictated by US political considerations, supported by Iraqi expatriates. It is the right choice, though by no means should it have been limited to a tribunal, and certainly not to one whose statute had so many infirmities. The Administration and its Iraqi expatriate collaborators approached the tribunal’s drafting of the statute without enough knowledge or respect for the Iraqi legal system, and without much experience in international criminal justice precedents. More importantly, they ignored the first lesson of post-conflict justice, namely, to keep politics at a minimum and make sure the legalities are at a maximum. In the IST’s case, it was the reverse.

During the period of time in which I was involved in earlier drafts of the statute, namely 2002-3, and before the IST’s promulgation in December 2003, I had advocated the establishment of a truth commission and a victim compensation scheme. Both I thought would be indispensable support to the prosecutions, and would round out the post-conflict justice process. Taken together, these three modalities would have had synergies and produced reciprocal positive reinforcements.

The national truth commission I had contemplated was to become the rallying point for all Iraqis to join together in producing a record of the Saddam crimes. This would have been a national unifying effort, and it could have avoided turning future prosecutions into a forum for sectarian victimization politics, as it turned out to be. Moreover, experience with international and national prosecutions for international crimes evidences that such trials are not the adequate means by which to record history. A trial is against one or more persons, dealing with a certain number of facts within a limited frame of time, and its purpose is to determine the responsibility of the accused through a fair and impartial process. It cannot be artificially broadened in scope to record historic or contextual facts, or facts unrelated to the nature of the charges brought against the individual. Thus, the Dujail case, a simple, straightforward murder case without external political implications, hardly reveals the many crimes and depredations committed by Saddam and his regime against the Shi’a over the years. Similarly, the forthcoming Halabja case dealing with the use of chemical weapons against the Kurds hardly reveals the extent of the crimes and brutality that the Kurds suffered. However, because of the present Iraqi politics of victimization, there will be no cases involving crimes against the Sunni, thus omitting this category of victims. A truth commission would have filled the gaps left open by selective prosecutions, and avoided the charge that the prosecutions are selective, as they necessarily are. Critics often charge that selectivity is unfair, though in my opinion, selectively charging persons whose conduct objectively warrants prosecution is not inherently unfair.

The victim compensation scheme I proposed was a way to engender public participation and support for the prosecutions by having people come forth, record their histories, and receive some compensation. While this may have provided some measure of comfort to the victims, as well as provided them some economic support that many needed, it would have also provided a wide popular basis in support of prosecutions which now does not exist. Surely if over 100,000 persons would have come forth with their stories, it would have been difficult to criticize the establishment of the tribunal as being American or as “victor’s vengeance” by the Shi’a or the Kurds, as is now the case. Moreover, since these victims would have likely been from all Iraqi religious and sectarian groups, critics of the prosecutions would not have been able to claim that it was set up to satisfy only some of these groups to the exclusion of others, namely, the Sunni.

Since the tribunal’s work was driven by US prosecutors with experience in US federal criminal prosecution, but with little or no experience in international criminal justice, and since the NSC and others in the White House and DoD working on Iraq had other political objectives, these two mechanisms were ignored. This meant that all of post-conflict justice in Iraq was to rest on the tribunal, which would necessarily be limited to a few selected defendants and to a few cases. This left the demand for more prosecutions unsatisfied, history unrecorded, and victims’ thirst for justice to turn into revenge manifested through sectarian violence.

As a result of much effort on my part, including extensive discussions with the judges, investigating judges and prosecutors of the IST during a training session I conducted for them at the International Institute for Higher Studies in Criminal Sciences in Siracusa, Italy, as well as with members of the RCLO, the IST statute was slightly amended. This was not what I had urged in a book published in Arabic for the purposes of helping the Iraqi jurists and politicians make the necessary changes to give the tribunal more legality and legitimacy. The ill-fated name of the IST was changed to the IHCC, some minor amendments were made to some of the statute’s provisions, and there was an overall editing process. The latter was direly needed because, absurd as it may sound, the IST statute was drafted in English and translated into Arabic, and the translation was quite poor. Even more absurd was the provision in the IST statute that the English text would control. How anyone could think that a national tribunal, even a “special” one in a country that had a well-established legal system and legal traditions, could be drafted in a foreign language and then translated into the official domestic language with the foreign text controlling, is beyond hubris.

Among the statute’s shortcomings is the drafter’s confusion as to the role of the investigating judge and prosecutor under Iraqi criminal procedure, which is essentially an inquisitorial model. The American drafters sought to graft the adversary/accusatorial model on the inquisitorial one, producing an unhappy mixture. In an uncanny way, however, that which could have been a serious flaw impeding the effectiveness of the tribunal, turned out not to be the case. The reason was the pragmatic approach of the judges, investigating judges and prosecutors who simply reverted to the practice of criminal law and procedure as they knew it from the Iraqi Code of Criminal Procedure (1971) and the Criminal Code (1969). More surprising was the fact that the defense, even though repeatedly challenging the legitimacy of the tribunal insofar as it was established by a foreign occupying power and subsequently legitimized in form by the re-promulgation of its statute under a law dated October 18, 2005, nonetheless failed to raise many of the issues of legality with the tribunal’s statute, as well as the inconsistencies between procedural provisions in the statute and the 1971 Code of Criminal Procedure. Why this occurred may well be due to the fact that some defense lawyers were not Iraqis, while local counsels may not have been up to the technical task. In any event, the combination of these factors rendered the issue moot in practice. However, legal historians will surely revert to these infirmities to critique the statute and the tribunal’s processes. De facto, the more troublesome technical legal issues with the tribunal were bypassed by actual practice.

Even the modest effort of re-naming the IST as the IHCC and the minor changes in the statute took some time. When the new text was ready for Iraq’s President’s signature, the first prosecution, namely the Dujail case, was already in progress. This case started under the IST and was continued for 30 days because that was the time required for a new law to be published in the Official Gazette in order to enter into effect. When the case resumed, it was under the new IHCC statute. To the best of my knowledge, only totalitarian regimes have changed laws during the course of a trial and applied the new law retroactively. This is in clear violation of the internationally recognized principles of legality, also required by Iraqi law. However, even this glaring violation of the principles of legality was given short shrift by the judges, thus adding another layer of illegitimacy to a process already encumbered by infirmities.

By October of 2005, when the Dujail trial proceedings started, a sectarian civil war was increasing in tempo. The threats to the Court’s personnel and to the defense increased, and in fact several of them were subsequently killed, adding to the complex political contextual backdrop of the tribunal and the prosecutions. Nevertheless, the Iraqi judges, investigating judges, and prosecutors continued to demonstrate courage and commitment. They have since then taken ownership of the process, and this in itself is an accomplishment which has to be applauded.

The highly politicized context in which the IST, later the IHCC began and then proceeded, was not conducive to a detached and sober judgment of the institution and how it worked. Admittedly, the tribunal did not work too well, but that should not have come as a surprise to anyone who follows the history of new legal institutions. The assessment of many observers was also colored by their judgments concerning the legality or advisability of the invasion of Iraq and its subsequent occupation. While a large segment of the IST/IHCC critics would have never been satisfied with the institution, its statute and processes, regardless of whether it was fair and impartial, because of political considerations, another segment of critics seemed to focus exclusively on the technical and legal infirmities of the statute and on the imperfections of its proceedings evidenced throughout the Dujail trial. It is worth mentioning, however, that any similar institution in its inception, particularly during its first trial with an obstreperous defendant like Saddam, would surely face some of the same problems that this trial displayed. Suffice it to recall that Hermann Goering ran away with the proceedings of the IMT in Nuremberg for three days while he was on the stand, and that for nearly four years, Slobodan Milosevič was able to cause periodic havoc during his trial before the ICTY. Those who follow similar trials at the domestic level will remember similar problems, one of which was the Chicago Seven conspiracy trial in 1968 where the defendants literally ran amok of the proceedings for a number of days until one of them was ordered by the judge to be bound and gagged, while sitting in a chair in the courtroom.

Saddam’s antics at the Dujail trial should not have come as a surprise, nor should they in any way be enough to judge the tribunal and its proceedings on the basis of these occurrences. In fact, the leeway given to Saddam is evidence of the Tribunal’s deference to the defense’s rights, even though many other defense rights were sharply curtailed. The point here is not to defend the validity or propriety of the proceedings, but to show the narrow focus of critics who tended to lose sight of the big picture.

Symbolically, the fact that Saddam Hussein and his Ba’athist cronies have been brought to trial for even some of the crimes they committed during their 30-year reign must be considered an achievement. By way of analogy, it was less important for Augusto Pinochet to be extradited from the UK to Spain than to have been held extraditable, just as it was more important for Slobodan Milosevič to have stood for trial for four years than to have been found guilty, had he not died before his trial’s end.

The very importance of the Iraqi proceedings has made the shortcomings of the establishment of the tribunal and its work that much more unfortunate. These shortcomings were the product of errors in judgment that could have been avoided had it not been the lack of knowledge and hubris of the American handlers who also elected to choose Iraqi collaborators to work on this process based on political considerations, as opposed to high-level competence. Above all, these US officials and their Iraqi collaborators lost sight of the deeper and far-reaching significance and implications of these proceedings on the future of the rule of law in Iraq and in the Arab world. Admittedly, all concerned were well-intentioned and acted in good faith, but sometimes this is not enough. The ability to exercise power can never be a substitute for knowledge and wisdom. In the end, the judgment of history will be that this was a missed opportunity to advance international criminal justice and to advance the rule of law in Iraq and in the Arab world.

The mistakes made in light of what was at stake were monumental, and in my judgment, unforgivable because they could have been avoided. The mistake of the US not to have complemented the tribunal with a concurrent truth commission and victim compensation scheme was also significant.

Before all is said and done, however, it is possible that the process may somehow redeem itself, as has already been evidenced in the last stages of the Dujail trial which started to proceed with some regularity and propriety. What is more important is that the Dujail case has not turned Saddam and his cronies into martyrs, though for his followers, other detractors of the tribunal, and opponents of the US invasion and occupation of Iraq, he will always be a martyr.

Regrettably, however, the victims in Iraq do not feel that the present proceedings are meaningful to them. The few prosecutions still contemplated will not record the full extent of the crimes committed by that repressive regime. The foreseeable conviction and death sentence likely to be imposed upon Saddam and some of his cronies will hardly leave a legacy of justice. Like the prosecution, conviction and execution of General Yamashita who was tried in the Philippines in 1946 by an American military commission which was deemed a miscarriage of justice, the IST/IHCC prosecutions will also be marred by a lack of legality and legitimacy.

If nothing else, however, the Iraqi prosecutions will still be a precedent. By analogy, the Leipzig trials in Germany 1923 after WWI were a failure, even though the judges behaved impeccably, and the proceedings were orderly and properly conducted. Nevertheless, the Leipzig trials remained a historic precedent for post-WWII prosecutions, irrespective of the negative substantive outcomes with respect to the defendants on trial, as well as with respect to the thousands who were to be prosecuted and who never were. History has a strange way of legitimizing failures when the need for valid precedent becomes pressing.

M. Cherif Bassiouni is the Distinguished Research Professor of Law and President, International Human Rights Law Institute, DePaul University College of Law.

Posted @ 11:32 AM | Experts Debate the Issues: The Dujail Trial | 37 Comments | 0 Trackbacks

Announcement

English Translations of the IHT's May 15, 2006 Charging Instruments (Indictments) for the Dujail Trial are now available on the Grotian Moment website. To view them, click on the button on the Left.

Posted @ 7:10 AM | Experts Debate the Issues: The Dujail Trial | 4 Comments | 0 Trackbacks

Issue # 42: The Defense Boycott of the Defense Closing Arguments

by Michael Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 149 (2006).

The title of this issue seems at first glance like a misprint or an oxymoron. It is, nevertheless, the most recent development in what has been to date a trial process packed with surprises and interesting legal developments. From the outset, the defense strategy has been one of obstruction and obfuscation, as the lead attorney for Saddam Hussein indirectly confirmed in a recent New York Times interview. The erratic conduct by the defense team has been a major factor in disrupting the procedural predictability and overall dignity of the trial proceedings in the Dujail trial. In my personal opinion, the pronouncement by members of the defense team that they will not present closing arguments as the Dujail case nears its completion are an abdication of their ethical duty to diligently defend their clients. The defense team has stated that the boycott is a response to the June 21, 2006 murder of Khamis al-Obeidi, an Iraqi who was one of the team representing Saddam and his half brother Barzan al-Tikriti. The death of a third member of the defense team is a genuine tragedy, both in the symbolic sense that it represents a direct blow against the restoration of the rule of law and because it was completely avoidable. Prior to the onset of trial, and before the two previous murders, Tribunal officials worked with each member of the defense team to implement appropriate security arrangements. The members of the defense team turned down offers to live with their families in the security of the Green Zone, and chose the form of security that they preferred. The overall security environment has created a range of logistical, practical, and legal problems in the conduct of the prosecution and defense cases. Apart from the murder of defense attorneys, the defense has been unable to specify causal linkages that show a relationship between the challenges inherent in conducting such a high profile trial in the current environment and the conduct of the defense. In fact, Saddam Hussein attempted to take advantage of the security context by interspersing illegitimate exhortation to the insurgents outside the courtroom in the midst of appropriate illustration of defense perspectives. Overcoming these obstacles, approximately one hundred witnesses testified during the proceedings.

Press accounts of the recent letter to the bench announcing the defense boycott of the defense closing arguments indicate that it incorrectly asserts that the IHT lacks “the lawful proceedings that are well established in international and Iraqi law.” The Statute and its implementing Rules of Procedure provide for the full range of individual rights reflected in acknowledged international standards for fair trial proceedings. Despite the challenges posed by the security environment, the defense has had every opportunity to present a fair and vigorous defense for those charged. The longest delay in the entire trial was granted to allow the defense team additional time to prepare for the beginning of the trial, despite the fact that the defense team received the investigative materials two months before trial was scheduled to begin. Significantly, the defense called almost precisely twice the number of witnesses as the prosecution, even though the bench cut short the presentation of a number of other witnesses deemed to offer testimony of redundant and limited probative value. If the defense has an articulable basis for concluding that the security environment has in some manner affected a procedurally fair process, the closing arguments would be precisely the appropriate forum to detail the legal and factual arguments forming the grounds that mitigate towards the innocence of their clients.

Rather than taking the occasion to state their legal case in public and on the record, the defense team has chosen to pack its portfolios and stay home. Given the obligation to represent their clients with vigor and legal precision, it was reasonable for Tribunal officials to presume at the beginning of trial that the defense team would participate in good faith in the judicial process. The defense team has, nonetheless sought to pierce the decorum in open court in ways that are unprecedented for a trial of this magnitude. The IHT Defense Office has worked to ameliorate the effects of the defense team’s demonstrated disregard for the proceedings and their own ethical obligations. The defense closing arguments will proceed after a delay necessitated by the need for court-appointed counsel to prepare. The conduct of the defense in this first trial presents a troubling portent of even greater difficulties in the more complex and lengthy trials that lie ahead. If the defense simply refuses to engage in good faith adjudications based on the evidence and the legal evaluation of that evidence, there will be an inevitable corrosive effect on the procedural guarantees built into the IHT. Such conduct in future trials endangers the effort to demonstrate a fair and transparent trial process that exemplifies the rule of law in accordance with international standards for the Iraqi people and the wider regional audience.

Posted @ 12:02 PM | Experts Debate the Issues: The Dujail Trial | 29 Comments | 0 Trackbacks