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“Grotian moment” – as envisaged by the father of international law, Hugo Grotius (1583-1645),
the term signifies a legal development that is so significant that it can create new customary
international law or radically transform the interpretation of treaty-based law. Modern
international war crimes trials have the potential to give rise to such Grotian moments
related to international humanitarian law, human rights law, and international criminal
procedure. This award-winning Website features key documents, breaking news, and expert
debate and commentary on issues and developments related to the major international war
crimes trials of our time, including the trials of the Khmer Rouge leaders before the
Extraordinary Chambers in the Courts of Cambodia, the trial of Charles Taylor before the
Special Court for Sierra Leone, and the trials of the Ba’ath Party Leaders before the Iraqi
High Tribunal.
June 30th, 2009
A Preview of the Karadzic CaseIn 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 January 30th, 2009
The Post-Dujail Trials Before the Iraqi High TribunalBy Michael Scharf Posted @ 5:24 PM | Experts Debate the Issues: The Dujail Trial | 207 Comments | 0 Trackbacks October 8th, 2008
Anfal Campaign Appeals Chamber Opinion Now Available On Grotian MomentOn 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. Posted @ 1:38 AM | Experts Debate the Issues: The Anfal Trial | 411 Comments | 0 Trackbacks August 22nd, 2008
The end of impunity?The end of impunity? Posted @ 8:19 PM | Experts Debate the Issues: The Radovan Karadzic Trial | 485 Comments | 0 Trackbacks March 7th, 2008
Transcript of Anfal Trial Judges 1/29/08 Presentation at Case Western Reserve Now Available on Grotian MomentOn 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). Posted @ 12:19 PM | Experts Debate the Issues: The Anfal Trial | 324 Comments | 0 Trackbacks February 6th, 2008
No Chaos in this Courtroom!
Posted @ 7:46 PM | Experts Debate the Issues: The Charles Taylor Trial | 295 Comments | 0 Trackbacks January 16th, 2008
Anfal Trial Judgement Now Available On Grotian MomentOn 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. Posted @ 12:43 PM | Experts Debate the Issues: The Anfal Trial | 212 Comments | 0 Trackbacks October 9th, 2007
Why the Cambodia Tribunal Matters to the International CommunityWhy the Cambodia Tribunal Matters to the International Community Posted @ 3:48 PM | Experts Debate the Issues: Khmer Rouge Genocide Trials | 270 Comments | 0 Trackbacks October 2nd, 2007
Playing The Defence Game - The Trial of Charles TaylorMark Ellis 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. Mr. Khan also presented a letter to the Registrar from Taylor that formally terminated him as counsel and declared that Taylor would represent himself from that point forward. Taylor also complained, through Mr. Khan, of a prior inability to consult with the Principal Defender. Mr. Khan recited the composition of Taylor’s legal team, noting that he was the only counsel, and that he was supported by two legal assistants and a pro bono legal assistant who worked in Liberia part-time; the defence team also benefited from two investigators — one international and one Liberian. The Court directed Mr. Khan to remain present during the current proceedings and to continue serving as Taylor’s legal representative: “As of today we direct that Mr. Khan continue to represent Mr. Taylor who has absented himself voluntarily.” Despite this directive, Mr. Khan insisted upon leaving the Court, citing the mandates of Article 18(A) and of Article 18(D) of the Code of Professional Conduct for Counsel. Article 18(A) states, “Subject to sub-paragraph (B), Defence Counsel shall not represent a client if Defence Counsel’s representation is: (i) terminated by the client. Mr. Khan noted what he deemed a caveat contained in Article 18(D). This provision states, 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. Mr. Khan argued before the Court that Taylor complied with the demands of Article 18, and that he was no longer ethically able to function as legal representative. The Court countered that its directive superseded counsel’s code of conduct, citing Rule 45(D). This rule demands that, “Any request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings.” Despite these urgings by the Court, Mr. Khan exited the courtroom. The presiding judge then appointed the acting Duty Counsel, Charles Jalloh, counsel for the duration of opening statements. There is no evidence that Mr. Khan was held in contempt of court for his decision to ignore the Court’s ruling, even though it is the Court that has final authority to remove appointed defence lawyers. Mr. Taylor indicated that he would represent himself, although he did not appear in court. The Court proceeded with the opening statements of the Prosecutor. Following the Prosecutor’s opening statements, the Duty Counsel enumerated several issues that, from Taylor’s perspective, needed resolution: (1) the procurement of funding sufficient “to assemble a good legal Defence team to meet the size and complexity of Mr. Taylor’s case”; (2) the need to properly fund investigations on behalf of the defence; (3) the status of those comprising the legal team for the defence (e.g., the employment of QCs); (4) the arrangement of a meeting between Taylor and the Principal Defender. In ruling on the matter of the Principal Defender, the Court issued the following directive: 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. Several weeks later, on June 24, 2007, Mr. Taylor again boycotted his trial. He was represented by Duty Counsel (Jalloh) and the Principal Defender, Vincent Nmehielle. Before making any statements, Mr. Nmehielle noted that both he and Mr. Jalloh would be addressing the Court from the position of the Defence Office, “but not addressing the Court for the accused as such.” Mr. Nmehielle stated that he had met with Taylor in the Netherlands since travelling north from Freetown, and that Taylor had expressed deep concerns with the protection of his rights to fair trial, resolving “to return and to participate in the proceedings before the Court if his concerns, as articulated to the Trial Chamber on the 4th of June, are addressed.” He also relayed that, through the course of their discussions, Taylor was advised that self-representation was neither in his best interests nor those of justice more generally, and that Taylor described in detail the kind of legal team that he felt would be necessary for the mounting of a proper defence. One such demand involved the employment of a leading counsel bearing the rank of QC. Mr. Taylor had rejected all attorneys compiled by the Principal Defender on a list of possible replacement counsel. Mr. Nmehielle also conceded that Taylor had expressed concerns with the adequacy of his legal counsel for some three months prior, and Mr. Nmehielle emphasized the fiscal constraints that had consistently hindered efforts to assemble the calibre and breadth of individuals needed to ameliorate any and all Article 17 concerns. In her response, Brenda J Hollis of the prosecution argued that, while any accused is certainly entitled to worthy representation, “he is not entitled to determine who that representation will be presented by, nor the exact title of the people who will provide that representation.” On the topic of self-representation, she observed that it should not be an issue because an accused such as this one cannot on one hand boycott the proceedings by refusing to attend and on the other hand say that he is representing himself. If he is boycotting the proceedings, he is not representing himself and so that, at this point at least, is not an issue. In deciding the matters brought before the Court, the presiding judge accepted the fact that Mr. Taylor had recanted his previous declaration to represent himself and issued both short- and long-term orders. In the short-term, the Principal Defender was instructed to comply with Article 24(D) (of Directive on Assignment of Counsel) and assign new counsel, either from the list previously compiled or else from the Office of the Principal Defender. The Principal Defender was also directed to retain the remaining members from the original defence team in order to assist with any transition. Should no new counsel be assigned by the time the Court reconvened on 3 July, Jalloh was to represent Taylor on that date. In the long-term, the Registrar was instructed to assemble a competent legal team for Taylor by 31 July. The team is to have the following composition: 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. On 3 July, the Court addressed an urgent motion filed jointly by the Prosecutor and the Principal Defender. The motion was filed on 28 June, and a written decision was issued on that same day. The motion requested that the Trial Chamber delay proceedings until 20 August. The petition justified the request on the following bases: (1) the short time with which the Duty Counsel would have to prepare for 3 July, particularly given “the fact that he has hitherto not been privy to the Prosecution material disclosed to the Defence and has no administrative support in the Hague”; (2) two expert witnesses scheduled to testify on behalf of the prosecution had been challenged by former counsel, and Duty Counsel was not privy to the reasons underlying this challenge. Consequently, the Court ordered the addition of four people to Taylor’s defence team and that a new lead counsel be appointed. The Court ruled: 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. The Court first postponed the trial for another month in order to give new defence counsel sufficient time to prepare for trial. It then agreed to postpone the trial until January 2008. In addition, the Court increased to approximately $100,000 a month the funds allocated to Mr. Taylor to defend himself. This is despite the evidence that Taylor controls approximately $100 million in unfrozen annual earnings from the diamond and timber trade. 1 However, it seems that the delay of Mr. Taylor’s trial is based, in large part, on the obstinate behaviour of Mr. Taylor himself. It is extraordinary that the Court permitted Mr. Taylor, at the “eleventh hour,” to obstruct Court proceedings. The Court erred in not immediately assigning defence counsel to Mr. Taylor, “in the interest of justice.” The Court’s decision was also confusing considering its earlier rulings addressing whether Mr. Taylor had sufficient and adequate defence support prior to the start of the trial. On January 23, 2007, the Defense sought an Order by the Trial Chamber that would direct the Registrar “to provide offices or financial support for offices in both The Hague, The Netherlands, and Monrovia, Liberia.” The Trial Chamber determined that it was not necessary to issue a specific Order to the Registrar because the Registry was already making an effort to establish adequate facilities in The Hague. The Trial Chamber also determined that it was not necessary to establish an office in Monrovia to help the Defense conduct investigations in Liberia. In assigning additional defence support and funding only after Mr. Taylor boycotted the proceedings, the Court displayed an institutional weakness for handling this crucial aspect of the trial. What is equally perplexing about the Court’s decision is the fact that cases before other international tribunals have already dealt directly with a defendant’s failure to appear. These defendants were certainly not given the latitude afforded to Mr. Taylor. 1 Liberia Moves to Seize Taylor Assets, http://jurist.law.pitt.edu, July 13, 2007. Posted @ 4:24 PM | Experts Debate the Issues: The Charles Taylor Trial | 272 Comments | 0 Trackbacks September 27th, 2007
Into the Dark Heart of the Khmer Rouge TribunalEDITORIAL 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. Posted @ 1:45 AM | Experts Debate the Issues: Khmer Rouge Genocide Trials | 413 Comments | 0 Trackbacks March 27th, 2007
Grotian Moment UpdateAs 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 | 3 Comments | 0 Trackbacks February 19th, 2007
Ten Lessons from the Saddam TrialTen Lessons from the Saddam Trial Generated from the October 7, 2006 Cleveland Experts Meeting Chaired by Michael Scharf Co-Rapporteurs: Gregory McNeal, Christopher Rassi, and Brianne Draffin Introduction It is often said that just as courts try cases, so too do cases try courts. As the first trial before the Iraqi High Tribunal, the Dujail Case was the test-run for this novel judicial institution. The Iraqi High Tribunal (IHT) joins the War Crimes Chamber of the Court of Bosnia and Herzegovina as the first of a new breed of domestic tribunals that combine elements of international and domestic war crimes courts. Although it sits in Baghdad and its judges are all Iraqi, the IHT is independent from the ordinary Iraqi court system, it is assisted by international advisers, and its constituent instruments incorporate the definitions of crimes and due process rights contained in the statutes of the existing international war crimes tribunals and stipulate that the precedent of those tribunals are to guide the decisions of the IHT. In the future, internationalized domestic tribunals like the IHT may play an increasingly important role in the growing accountability web for atrocity crimes that also includes the International Criminal Court, the Security Council-created ad hoc war crimes tribunals for the former Yugoslavia and Rwanda, the U.N.-created hybrid war crimes tribunals for Sierra Leone, East Timor, and Cambodia, and ordinary national courts. After the Nuremberg Trial sixty years ago, Chief Prosecutor Robert Jackson reported to President Truman that despite the many errors and missteps that occurred during the proceedings, he was consoled by the fact that the lessons from the WWII war crimes tribunal would be instructive for the future. In that spirit, on October 6-7, 2006, the Frederick K. Cox Center at Case Western Reserve University School of Law hosted an international conference and experts meeting titled “Lessons from the Saddam Trial.” The meeting was co-sponsored by the International Bar Association and the Irish Centre for Human Rights, and was designated a Centennial Regional Meeting of the American Society of International Law, a Regional Conference of the International Law Association (American Branch), and the Annual Meeting of the International Association of Penal Law (American National Section). In addition to a number of leading academics, the two dozen expert participants included the Ambassador of Iraq to the United States, the Executive Director of Human Rights Watch, the Executive Director of the International Bar Association, the former Director of the Regime Crimes Liaison Office, the Deputy Director of the State Department Office for War Crimes Issues, a human rights observer who attended the Dujail trial, an advisor to Saddam Hussein’s defense team, the former Chief Prosecutor of the Special Court for Sierra Leone, the legal advisor to the Chambers of the International Criminal Tribunal for Rwanda, the former Principal Public Defender of the Special Court for Sierra Leone, and the former Chair of the Drafting Committee for the International Criminal Court. Although the views of the individuals who participated in the conference and experts meeting diverged on many points, they all agreed that much can be learned from the way the Dujail trial unfolded, and that these lessons can help improve the way the Iraqi High Tribunal tackles its upcoming trials, as well as the way the international community can help domestic prosecutions of former leaders accused of atrocities in other parts of the world. While not specifically endorsed by the participants, this document reflects the general points of consensus that emerged from the experts meeting. The articles contained in the upcoming symposium issue of the Case Journal of International Law (available in August 2007) provide further elaboration and analysis of these ten lessons. Lesson # 1: There should be a presumption against undertaking domestic war crimes trials in countries languishing in a conflict environment. The International Criminal Court’s “complementarity regime” reflects international recognition that domestic trials have advantages over international trials and are to be preferred unless the national courts are unable or unwilling to prosecute. At the same time, it must be recognized that in the best of circumstances, undertaking international war crimes trials is arduous; in a country plagued by sectarian violence and devoid of reliable security mechanisms, the premature launching of such a trial can be reckless and potentially futile. It also runs the risk of negating the potential benefits to the broader criminal law system. In such circumstances, a more responsible and viable option may have been to utilize a neutral jurisdiction, preferably in the relevant region. In the current IHT trials, extreme and immediate steps must be taken to guarantee the protection of defense counsel, as well as the judges, prosecutors and witnesses – whether they desire such protection or not. Lesson #2: Post-conflict countries that do undertake domestic war crimes trials need unbiased international assistance. It is a misnomer to refer to the Iraqi High Tribunal as a “domestic” court. Behind the scenes, the United States played a crucial role in drafting the Court’s Statute, collecting evidence to be used by the prosecution, and providing both security and financing to the Court. Although the United States, as an occupying force, should not have been the one to unilaterally play this role, international assistance for a domestic war crimes tribunal following the fall of an authoritarian regime is indispensable. In the future, transitional justice should be a key goal that attracts legal and administrative support from across the international spectrum. Serious consideration should be given to foregoing the death penalty as the price for obtaining international support and involvement. The international community should provide substantial training in international criminal law to jurists, including defense attorneys, serving on domestic war crimes tribunals. An international perspective on substantive and procedural law concerning crimes of genocide, war crimes, and crimes against humanity is essential, and international best practices serve to supplement established domestic norms to provide an integrated model. Lesson #3: Steps should be taken to further internationalize the Iraqi High Tribunal. Like the Statute of the War Crimes Chamber of the Court of Bosnia and Herzegovina, Article 3(5) of the IHT Statute provides for the appointment of one or more foreign judges to join the Iraqi judges on the bench, but without explanation none were ever appointed. Such an appointment of a distinguished Arabic-speaking judge from the region would greatly promote the perception of the IHT as a fair and competent judicial institution, without sacrificing the essential Iraqi character of the tribunal. In addition, the Statute provides for the appointment of international advisers to assist the judges, prosecutor, and defense team. To date, the identities of the non-US advisers working with the Tribunal have been kept confidential for their protection, but this has led to the misperception that the only foreign advisers are members of the US Department of Justice Regime Crimes Liaison Office, which in turn makes the Tribunal appear to be an American-controlled enterprise. In future trials, more advisors selected by respected NGOs such as the International Bar Association should be recruited to assist the Tribunal, and their contribution (if not their identities) needs to be made public. Lesson #4: Steps should be taken to strengthen the independence of the Iraqi High Tribunal. An independent and impartial court is a fundamental prerequisite for meeting international standards of fairness in a trial. Any appearance of government influence is a damning indictment of a court’s independence. During the Saddam trial, there were several instances in which the government made inappropriate comments and attempted to interfere with the proceedings. Article 4(4) of the IHT Statute, which provides that the Iraqi Presidency Council may transfer judges from the IHT to the Higher Judicial Council for any reason, should be amended. Judges should only be removable for cause and only through a decision of the other IHT judges, not the unfettered whim of the Executive branch. In addition, Article 33, which provides that no person who was a member of the Ba’ath party shall serve as a judge or other officer of the IHT, should be revised to make clear that removal of judges on grounds of former Ba’ath party membership shall occur only via the IHT’s internal fact finding and disciplinary procedures. Lesson #5: Domestic war crimes trials should be kept short and focused. Domestic war crimes courts should be judicious in deciding the charges brought against a defendant, particularly a Head of State, and in deciding the best sequence of cases. The Court must be very conscious of the balance between lengthy delays needed to adequately prepare for trial and the rights of potential defendants held for extended periods pending trial. The legal predisposition to charge all the crimes attributable to an individual in one conglomerated case can lead to overly long trials, while the practice of charging specific situations will generally necessitate repetitive trials of senior officials. In any event, the length of trial will be a critical factor in the public perceptions of the process. The IHT was correct in selecting, as its first case against Saddam Hussein, a relatively straightforward incident of criminality. The Dujail case was manageable and the documentary evidence was remarkably strong. This enabled the Court to more directly focus its case. On the other hand, the execution of Saddam Hussein following the Dujail verdict deprived victims of seeing him stand trial on other much more serious charges. Lesson #6: Pre-Trial Motions need to be resolved as they arise. Consistent with Iraqi and international law, Saddam’s defense counsel filed a series of motions addressing issues such as the impartiality of the judges and access to witnesses and documents. One of the most glaring shortcomings of the Court was its failure to articulate a response to these motions until the final Trial Chamber opinion was issued at the end of the Dujail trial. The Court’s silence significantly weakened its transparency and undermined the credibility of the judicial process. In future trials, the IHT should make it a practice to issue written opinions addressing such issues as they arise, consistent with the normal practice of Iraqi courts and the international war crimes tribunals. In addition, the IHT should maintain a regularly updated list of all motions filed and all scheduling decisions. Lesson #7: Domestic War Crimes Tribunals must utilize accepted tactics to maintain control of the courtroom without trammeling on the rights of the defense. Trying former leaders is always a messy affair, especially when a decision has been made to televise the proceedings gavel-to-gavel, and the defendants have indicated an intention to disrupt the trial, distract public attention from the evidence against them, and turn the televised trial into a political stage. To ensure decorum and protect the integrity of the process, the judges in a domestic war crimes trial should be prepared to take a number of steps, which have been undertaken successfully by other tribunals. First, stand-by-counsel should be appointed at the start of the trial. They should be trained and assisted by international advisors. At the start of the trial, the judges should explain the existence of the stand-by counsel, release general information about their qualifications and experience, and describe the conditions in which they will be asked to take over for retained defense counsel. The use of such stand-by counsel had been successfully employed at the Yugoslavia Tribunal, Rwanda Tribunal, and Special Court for Sierra Leone. The very existence of such stand-by public defenders can deter misconduct by the Defense, since the defense lawyers know they can be replaced if necessary at a moment’s notice. In addition, if misconduct persists after due warning, the Tribunal should not hesitate to hold retained counsel in contempt of court and subject them to appropriate disciplinary sanctions for conduct that would merit such action in an ordinary court. In such cases, the Presiding Judge needs to dispassionately explain in open court why the steps taken were warranted. Second, defendants must be warned that they will lose their right of self-representation (or in the Iraqi context, their right to ask follow up questions after their lawyers are finished questioning a witness) and may face expulsion and other sanctions if they act disruptively or inappropriately in the courtroom. Persistent disruption after such a warning should result in temporary exclusion, followed by a calibrated response proportionate to the degree and persistence of disruption. If the defendant is expelled from the courtroom, he must be permitted to follow the courtroom proceedings and be able to speak with counsel remotely via communications link. Lesson #8: The IHT Appeals process must be sufficiently deliberative. The timing and substance of the Appeals Chamber decision was one of the most controversial aspects of the Dujail trial. The IHT should maintain a verbatim written transcript of court proceedings, which should be made available to the prosecution and defense in a timely manner so that they can prepare an appeal. Sufficient time must be allocated to all parties to raise specific allegations of factual or legal error. The Appeals Chamber decisions must sufficiently address each legal and factual issue raised in a detailed manner. The time required to compose the Appeals Chamber decision should be sufficient to prepare the opinion, and must not be driven by external political or emotional factors unrelated to the facts of the case. Lesson #9: Domestic War Crimes Tribunals must make gender justice a priority. Domestic war crimes tribunals should ensure fair representation of women judges, prosecutors and other staff. They must also include individuals in the Registry (including victims and witnesses units), Chambers, and Prosecution with legal expertise in sexual and gender violence, as well as expertise in trauma related to crimes of sexual violence. Such provisions recognize the fact that many of the victims of war crimes and related atrocities are women, and that women jurists, prosecutors, and other court staff bring important perspectives to the gender-crimes that such Tribunals should be prosecuting. War crimes tribunals are designed not just to prosecute the leaders of regimes that have engaged in mass violations of humanitarian law, but also to serve as a model for a newly emerging judicial system by employing international rules for the protection of the rights of the defendant and standards of due process. They should also serve as a model of gender equality, by appointing women to serve visible roles as judges, prosecutors, and other figures of prominence. Domestic war crimes tribunals should disclose the gender representation of each trial bench, along with other basic information about the qualifications and experience of the judges (but not put them at risk by disclosing their identities). The same should be disclosed with regard to the prosecution office, registry and defense bar. Just as it is important that prominent members of government be women, so too should women be seen playing a prominent role in war crimes tribunals. Domestic war crimes tribunals should also provide, both before, and during trials, trainings for judges, prosecutors and other tribunal players, on gender sensitivity and dealing with sexual violence. Efforts must also be made to insure that such tribunals provide an enabling environment for victims of sexual violence prior to, and during their testimony, and keep victims of sexual violence informed about court proceedings thereafter. Prosecutors and investigating judges must make prosecuting and investigating gender crimes a priority from the outset. Holding perpetrators of mass violations against women accountable for their acts has been a slow and tortuous process. Experience has shown that including women judges in war crimes tribunals particularly makes a difference. Tribunals should find creative and pro-active ways to bring around a local populace, rather than concluding that said society is just "not ready for this". Outreach to women in the diaspora should also be considered where it may be thought to be particularly difficult to enlist local women in visible roles. While gender parity and justice is never convenient, it is a fundamental aspect for lasting and credible justice. Lesson # 10: Domestic War Crimes Tribunals must make effective public outreach a priority. Domestic war crimes tribunals should create a public outreach office to provide regular briefings on the Court and trial developments. Not only would this enhance public knowledge about Court proceedings, it would impede the constant speculation, misinformation, and rumors that so often overwhelm high-profile trials. The IHT failed to create an effective public outreach office. Consequently, Iraqi citizens and the international community were essentially left to use their imaginations when judging the Court’s proceedings. As evidenced by the decision to televise the proceedings, the IHT was designed in part to serve an educative function. But the procedural decisions of the IHT were usually shrouded in mystery, as little attempt was made to clarify the many public misconceptions as they arose during the Dujail trial. If the Iraqi people are ever going to feel ownership over the IHT proceedings, and if the international community is ever going to accept the Tribunal as legitimate and fair, they need to fully understand what is going on in the courtroom, and the message should not have to be filtered through the press. To remedy this problem in the future, the Presiding Judge should explain procedural decisions in open court, even if this is not traditionally done in Iraqi trials. Where decisions are made in closed sessions, explanation for going into closed session should be given in open court, and a summary of what occurred in the closed session should also be delivered in open court after closed session. In addition, the IHT should appoint an experienced lawyer or experienced journalist with a legal background to head the Public Outreach Office (a role eventually undertaken by Chief Investigating Judge Ra’id). The IHT Public Outreach Officer should issue an official statement every day of the trial (in both Arabic and where resources allow in English and/or French), explaining what went on that day and answering the questions that the public and press are likely to have about the day’s proceedings. Such official press statements, together with trial exhibits, transcripts, budgets, annual reports, and other court documents, should be posted (in both Arabic and where resources allow in English and/or French) on the Tribunal’s website on a daily basis for world-wide viewing. Domestic War Crimes Tribunals should also run public service announcements on local and international television and radio, hold town hall meetings via the radio, the tribunal website, and where security permits throughout the country. They should develop a media program with workshops, bringing in selected domestic and international journalists to cover the tribunal and its trials. They should prepare, publish, and disseminate to key stakeholders and the public a handbook titled “what you need to know about the [domestic"> war crimes tribunal.” Public outreach should focus not only on the particulars of the day to day proceedings, but also on the importance of the right to a fair trial, and the presumption of innocence until proven guilty. Posted @ 1:10 AM | Experts Debate the Issues: The Anfal Trial | 217 Comments | 0 Trackbacks February 14th, 2007
UN High Commissioner for Human Rights Louise Arbour's amicus brief on the issue of capital punishmentUnited Nations High Commissioner for Human Rights Louise Arbour's amicus brief in the Matter of Sentencing of Taha Yassin Ramadan. Posted @ 4:18 PM | Experts Debate the Issues: The Anfal Trial | 170 Comments | 0 Trackbacks January 3rd, 2007
Grotian Moment First Website in World to post English Translation of Appeals Chamber OpinionOn 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 | 445 Comments | 0 Trackbacks Dujail Issue #46: Saddam's ExecutionWhy Saddam’s Execution Was Unlawful Saddam’s Execution was a Fiasco, but its timing did not violate the law by 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 31 (2007). As I have said on several occasions, Saddam Hussein’s trial was among the messiest in legal history, and the execution was by all accounts a total fiasco. But on its essential legal point, Kevin John Heller’s recent essay is just plain wrong. The timing of the execution did not violate the relevant law. The Iraqi High Tribunal is not an ordinary Iraqi court. It was designed to be independent of the rest of the Iraqi court system, and its decisions are governed first and foremost by its own Statute, which was promulgated by the democratically elected Iraqi National Assembly on August 11, 2005. According to the IHT Statute and Rules, the Iraqi Criminal Procedural Law of 1971 is to serve as a procedural gap-filler. But to the extent there is any conflict, the Statute governs, consistent with the universally applied cannons of statutory construction that provide that in case of conflict a later in time statute always trumps an earlier statute and a more specific statute always trumps a general statute. This was an important approach as the IHT Statute was written to import the rights enshrined in the International Covenant on Civil and Political Rights, and there were many provisions of the Iraqi Criminal Procedural Law of 1971 that were not consistent with those rights. The drafters thus intended the provisions of the IHT Statute to control. The relevant provision of the IHT Statute is Article 27 (second), which states that “punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.” The judges reasonably interpreted that to mean within 30 days of the final judgment of the IHT Cassation Panel (Appeals Chamber), which in this case was issued on December 26, 2006. There is an obvious conflict between Article 27 of the IHT Statute and Paragraph 266 of the Iraqi Criminal Procedural Law of 1971, which provides that in an ordinary criminal case “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.” Since the IHT Statute stipulates that an execution must occur within 30 days, not at 30 days, Professor Heller is suggesting that the 1971 Code should trump the 2005 IHT Statute, rather than the other way around. The International Covenant on Civil and Political Rights requires that “everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” That occurred in this case, when the IHT Appeals Chamber reviewed the defense briefs and the Trial Chamber’s Opinion, and affirmed the conviction and sentence in its 24 page opinion on December 26. The International Covenant does not require that the defendant have the chance to petition the Appeals Court to reconsider its decision, and most countries of the world do not grant such a right. Consequently, although I believe the appeals process was unnecessarily rushed and that the treatment of Saddam during his execution was atrocious, the fact that Saddam Hussein was not given an additional thirty days to request corrections in the Appeals Chamber decision was not unlawful under the controlling domestic law or under international law. Reply to Professor Scharf 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 33 (2007). Not surprisingly, I disagree with Professor Scharf. He claims that because there is an “obvious conflict” between Article 27 and Paragraph 266, I am arguing that the Code of Criminal Procedure trumps the IHT Statute. That is not what I am arguing – because there is no conflict between Article 27 and Paragraph 266. As I noted in my initial post, Article 27 provides that a sentence must be carried out less than 30 days after a decision by the Cassation Panel becomes “final and non-appealable.” If either the IHT Statute or Rules contained a provision dictating when a decision became “final and non-appealable,” Professor Scharf’s argument would make sense. But they do not – instead, Rule 66 simply provides that “the judgment shall be implemented in accordance with these rules and the provisions of Iraqi Criminal Procedure law No.23 of 1971.” Paragraph 266 then provides that a judgment only becomes final and non-appealable after the defendant has been given 30 days to request correction of legal errors in the Cassation Panel’s decision. Paragraph 266, therefore, does not conflict with Article 27; it simply gives meaning to terms left undefined by the Article, as the Rules themselves specifically require. The problem with Professor Scharf’s argument is made even more clear by the text of Article 25(Fourth) of the IHT Statute, which governs Cassation. Paragraph Four of Article 25 reads: “The period of appeal shall be in accordance with the provisions of the Iraqi Criminal procedure Code No. 23 for the year 1971 that is in effect, in case there is no specific provision in that regard.” Paragraph Four may govern only the initial period of appeal from the Trial Chamber’s decision – although nothing in the paragraph indicates that it doesn’t apply to all of the stages of the appellate process, including revision. Even so, it is difficult to argue that the drafters of the IHT Statute (1) intended the initial period of appeal to be determined by reference to the Code of Criminal Procedure, but (2) intended the IHT Statute to “trump” the Code of Criminal Procedure regarding the revision period, even though the Statute (and Rules) are silent concerning revision. Again, the only specific provision in the IHT Statute and Rules regarding the timing of appeals is Rule 66, which simply provides that the judgment “shall be implemented” in accordance with the Code. In attempting to avoid the conclusion that the Code of Criminal Procedure determines when a judgment becomes final for purposes of Article 27, Professor Scharf argues that “The judges reasonably interpreted [Article 27"> to mean within 30 days of the final judgment of the IHT Cassation Panel (Appeals Chamber), which in this case was issued on December 26, 2006.” There is no indication in the decision, however, that the Panel believed that it was issuing its “final judgment,” as opposed to a normal judgment subject to the other Cassation procedures dictated by the Code of Criminal Procedure. On the contrary, the Cassation Panel itself said that “The decision has been issued by consensus pursuant to the fundamental stipulations of Article (259) on 5 Dhu Al Hijja, 1427 H, corresponding to December 26, 2006.” That statement is critical, because Article 259 is a paragraph in the Code of Criminal Procedure’s “Cassation” section – the section that immediately precedes the “Correction of Cassation” section, which contains Paragraph 266. Is Professor Scharf seriously arguing that the Cassation Panel believes that the “Cassation” section of the Code contains “fundamental stipulations” governing its authority, but the “Correction of Cassation” section does not? Where is the evidence for such a counterintuitive claim – and for such an illogical result? Posted @ 12:01 PM | Experts Debate the Issues: The Anfal Trial | 280 Comments | 0 Trackbacks December 5th, 2006
Dujail Issue #45: Analysis of the Dujail Judgment and OpinionGrotian Moment First Website in World to Host English Translation Observations on the Dujail Trial Opinion By Michael P. Scharf, co-author of SADDAM ON TRIAL: UNDERSTANDING AND DEBATING THE IRAQI HIGH TRIBUNAL (2006), available from Amazon.com here. 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 15 (2007). On December 4, 2006, the Iraqi High Tribunal publicly issued the long-awaited English translation of its Opinion supporting the November 5 Judgment in the Dujail Trial – the first trial of Saddam Hussein and seven co-defendants. Available at: http://law.case.edu/saddamtrial/dujail/opinion.asp . The Dujail Opinion is extraordinary in a number of respects, not the least of which is its length -- 298 single-spaced pages -- and the surprisingly detailed factual findings and sophisticated legal analysis that it contains. On November 20, two days before the Iraqi High Tribunal posted the Arabic version of the Dujail Trial Opinion on its Website and provided it to the Defense Counsel and Prosecutors in hard copy, one of the world’s foremost human rights NGOs, Human Rights Watch, issued a 97-page report, concluding that the “proceedings in the Dujail trial were fundamentally unfair” and that “the soundness of the verdict is questionable.” The Human Rights Watch Report was authored by Nehal Bhuta, HRW's Arthur Helton Fellow who had observed parts of the trial and interviewed defense counsel and other trial participants (not including the presiding judges). As a disclaimer, let me begin by acknowledging that I am a huge fan of Human Rights Watch. Case School of Law’s Frederick K. Cox International Law Center, which I direct, has a special relationship with the NGO under which every year two of my best students get to spend the summer as legal interns at the Human Rights Watch Offices in New York and DC. And the Executive Director of the NGO, Ken Roth, is scheduled to deliver the “Klatsky Endowed Lecture in Human Rights” at Case on February 13, 2007. Although there are many valid observations and excellent recommendations contained in the November 20th Human Rights Watch Report, the subsequent issuance of the Dujail Trial Opinion indicates that the NGO should have followed the age-old adage -- “Never judge a book by its cover.” In other words, because it did not wait to analyze the actual Opinion of the Dujail Case, the broad conclusion of the Human Rights Watch Report turned out to be premature and largely unfounded. Below, I will briefly indicate a few of the ways the Dujail Opinion sheds new light on the overall fairness and integrity of the Saddam Trial. The Standard of Proof On numerous occasions during the Dujail trial, Human Rights Watch and other critics of the Tribunal publicly decried the fact that the Tribunal’s Statute and Rules do not require it to find “proof beyond a reasonable doubt.” Well, it turns out that the Tribunal did in fact employ the “proof beyond a reasonable doubt” standard -- the phrase is used in the opinion over two-dozen times. Disposition of Defense Motions The Human Rights Watch Report harshly criticized the Tribunal for not transparently resolving the Defense’s pre-trial motions. While my writings, too, have urged the Tribunal to issue written decisions on procedural motions as they arise, I have also noted that the Iraqi legal tradition is to handle such issues in the final written Opinion of the Trial Chamber and that such an approach does not violate international due process standards. The first 54 pages of the Dujail Opinion are devoted to the Defense pre-trial and trial motions, including (1) the challenge to the death penalty in light of the fact that the President of the Coalition Government had suspended it in 2003; (2) the challenge to the legitimacy of the Tribunal in light of the fact that it had initially been established by an Occupying Power; (3) the Defense claim that it did not receive the case dossier and other evidence in a timely manner; (4) the Defense claim that the security conditions and the killing of three defense counsel during the trial rendered the climate inherently unfair; (5) the request for the removal of Judge Ra’ouf for bias; (6) the argument that Saddam Hussein had Head of State Immunity; and (7) the argument that the Tribunal’s Statute constitutes ex post facto law since crimes against humanity were never before recognized in Iraqi law. While written in a distinctly Iraqi style, the Tribunal does an impressive job of handling these important legal issues, including applying numerous precedents from international Tribunals. The sophistication of the Tribunal’s legal analysis is striking, and I think any objective observer reading these pages would have to disagree with the Human Rights Watch Report’s conclusion that “the level of legal and practical expertise of the key Iraqi actors in the court … is not sufficient to fairly and effectively try crimes of this magnitude.” The Opinion’s analysis of these Defense motions also indicates how misleading the media reporting has been at times. For example, early in the trial, the media dutifully repeated the Defense claim that Judge Ra’uf was biased against the defendant because he had been sentenced to death by Saddam Hussein and had been the leader of an anti-Bathist organization. Unfortunately, Judge Ra’uf never publicly rebutted this claim during the trial – leaving the impression that the Tribunal’s presiding judge was unfair. The Opinion, however, reveals for the first time that Judge Ra’uf had been arrested and sentenced under the Abdul Salam Aref regime in 1963, which had also arrested and sentenced Saddam Hussein and other members of the Ba’ath party at the same time. Judge Ra’uf was released before Saddam came to power and he practiced law in Baghdad without incident during Saddam’s reign. The so-called anti-Bathist organization Judge Ra’uf established in 1992 was in fact a human rights organization in Kurdistan, which was then an autonomous region that was outside the control of the central government and protected by an American No Fly Zone. The Opinion acknowledges that statistically nearly all Iraqi civilians had relatives and friends who suffered during the rule of Saddam Hussein and that the Defendants’ antics managed on some occasions to provoke the judge’s ire during the trial. But the Opinion reminds us that the IHT judges had taken an oath to decide the case impartially – a point that other war crimes tribunals have also stressed in explaining why presiding judges should be deemed capable of fairly deciding a case in the absence of actual specific evidence of bias. Detailed Evidentiary Findings The Tribunal’s findings of fact are extremely detailed. The Opinion explains why the testimony of certain witnesses was believed and why others were not. It indicates that hearsay testimony was not given much weight; nor was Saddam’s various admissions. The Opinion describes each piece of documentary evidence, and details the steps undertaken to authenticate the signatures of Saddam Hussein and the other defendants on these documents. And it explains that all of the documents considered by the Tribunal were given to the Defense 45 days before the start of the trial. Reading the Dujail Opinion, one can only conclude that Saddam and the other defendants were convicted on the strength of their own records, much like the Nazis were at Nuremberg. Important Precedents The Tribunal’s legal analysis explains the theory of criminal responsibility applicable to each defendant and fully examines each of the defendant’s possible legal defenses. From the point of view of establishing a noteworthy legal precedent, two points stand out in the Dujail Opinion. First, Saddam’s main defense was that as a leader, he was entitled to take action against a town that had tried to assassinate him and was populated by insurgents and terrorists allied with Iran at a time when Iraq and Iran were at war. The Opinion details why the actions taken against the town of Dujail and its inhabitants “was not necessary to stop an immediate and imminent danger” and how the actions were disproportionate to the threat. In this way, the Opinion makes clear that there is a line to be drawn in every country’s fight against terrorism, and that Saddam and the other defendants crossed that line. Second, it is noteworthy that the Opinion begins with the case against Awad Al-Bandar, the President of Saddam’s Revolutionary Court, who was charged with using his court as a weapon by conducting an “illusionary trial” and then ordering the execution of 148 villagers of Dujail, including several individuals who were under 18 years of age. Ironically, Al-Bandar was convicted of doing the very thing Human Rights Watch accused the Iraqi High Tribunal of doing – presiding over a trial devoid of due process of law. But the many details of the case against Al-Bandar contained in the Dujail Opinion make it clear how fundamentally different the Iraqi High Tribunal is from Saddam’s Revolutionary Courts. In any event, the legal analysis of the case against Al-Bandar will serve as an important warning to judges in Iraq and elsewhere that they too may face prosecution if they stray from the internationally recognized fair trial requirements. Echoing the Nuremberg-era “Judges Trial,” the Iraqi High Tribunal rejected Al-Bandar’s defense that he “was obliged to do this,” pointing out that he was no “ordinary administrative employee” but “a judge and president of the Tribunal.” Conclusion Over the next few days, critics will undoubtedly pick apart various aspects of the Dujail Opinion. The English translation is a bit awkward, the text is redundant, and the prose certainly won’t be compared to the opinions of Oliver Wendell Homes or Learned Hand. But even the harshest critics of the Tribunal will have to admit that it did a competent job writing its Opinion, and that the Opinion does answer many of the questions about the fairness of the process. On December 3, 2006, the Defense Counsel filed lengthy briefs appealing various aspects of the Dujail Judgment and Opinion. These will be considered and a final Appeals Chamber decision issued in a few months. Whatever the outcome, the 298-page Dujail Trial Chamber Opinion accomplished one of the most important goals of international justice. Much like the multi-volume set containing the judgment of the World War II Nuremberg Tribunal that is available at every law library in the world, the Dujail Trial Opinion sets forth a detailed and credible historic record, which may one day play a positive role in the establishment of peace in Iraq. The Dujail Decision – Trial Chamber I Michael A. Newton 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 19 (2007). On November 5, 2006, Trial Chamber I announced its verdicts from the bench in the Baghdad courtroom. Despite speculation that the announcement of the verdict was intended to influence the U.S. midterm elections, there is simply no evidence to support such an assumption. At the time the opinion was issued, it was clear that the date had already been postponed once; moreover a number of lawyers had come into Iraq to attend the session and a significant gathering of print and broadcast media were present to observe and comment on the verdicts. The judgments of the findings and sentences for each of the defendants were read in open court, but the written opinion was not finalized until November 22, 2006, whereupon it was posted to the tribunal website in Arabic and provided to the defense electronically and in hard copy to facilitate the preparation of the issues for appeal. IHT Rule of Procedure 58 obligates the Trial Chamber to produce a “reasoned opinion in writing” to support its judgment. The 283 page unofficial English translation of the Arabic original meets that standard by any measure. The unanimous decision is the definitive record by the Trial Chamber of its underlying reasoning in light of the international treaty law cited as well as customary international law buttressed by scattered references to the jurisprudence of previous international tribunals. Two of the most important factual issues are resolved as follows: “The accused Saddam Hussein and his regime exploited this isolated and limited incident to punish the people of Dujail, especially since most of them were not loyal to the Baath party and Saddam Hussein.” In finding that the defendant Awad Bandar did not hold a trial before forwarding a judicial request to Saddam Hussein for the execution of 148 Dujaili civilians, the Trial Chamber noted that it was “in fact an order of murder and not a judgment issued by virtue of the law and in conformity with it.” In reaching this important factual finding, the Trial Chamber noted that the 361 pages of Case No. 944/C/1984 were located and turned over to the defense and that they contained no mention of trial procedures or the testimonies of the defendants as required by Iraqi law. The decision is a lengthy and sometimes unwieldy example of the quintessentially judicial function. The judges are careful to explain the range of relevant facts drawn from the 1120 page referral file as well as those derived from testimony in open court, which were adduced from both witnesses and the documentary evidence. The Trial chamber methodically applies the relevant law to those facts, while explaining the inferences and conclusions drawn from circumstantial evidence. For example, no defendant was convicted of the crime against humanity of enforced disappearance [translated as coercive disappearance"> because the legal elements were not supported by the evidence. The court supports its conclusion that crimes against humanity were committed by detailing the factual basis for its conclusion that the attacks were part of a widespread or systematic attack directed against civilians. In only one of the numerous examples, the bench wrote that “the civilian nature of the victims was as clear as the sun in a clear sky. That large-scale and systematic attack involved scores of families (about 85 families) belonging to 10 tribes, who are most of the tribes in Dujail.” For those unfamiliar with applicable Iraqi domestic law, the opinion also provides relevant citations in key substantive areas alongside international norms where appropriate to support its conclusions. While a detailed analysis of the entire opinion is beyond the scope of this blog, some observations of this monumental development follow. • The Judgment Decision is very well organized thematically and legally from its opening paragraphs. The first section is devoted to addressing the various motions made by the defense during the trial. Though some were addressed orally from the bench, and in one instance Judge Raouf read a written response from the bench, the opinion details the Chamber’s reasoning behind the denial of four preliminary defense motions raised during trial. The judges also raise and disposed of a significant legal issue relevant to the imposition of any capital sentence that was not raised by the defense, but was developed and disposed of sua sponte. The text provides extensive factual and legal reasons why each of the major issues raised by the defense as formal motions did not prevent the court from reaching a verdict in the Dujail case. After its disposition of these motions, the court follows a strict template in considering the case of each defendant in turn. The Trial Chamber specified and followed this sequence in addressing the facts and law related to each defendant; 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. • The Trial Chamber was careful to note its observation of the fair trial rights of the defendants. Each section contains a recitation of the defense evidence as well as discussion of possible exculpatory grounds or inferences drawn from the available evidence. In a number of instances, facts derived from pretrial statements taken by investigative judges are assessed in light of other evidence at trial, though the preservation of defense rights is carefully catalogued. In one typical example drawn from Saddam Hussein’s appearance the court wrote: “His statement before the investigating team consisting of three judges, in the presence of his attorney Khalil Dulaimy and the presence of a prosecutor at the court on June 12, 2005. In it, he said (My motorcade was subjected to fire opened against it from two or three rifles, I am not sure because it was long ago. Also, he said that “As far as I know, No body was hurt in the incident.” It is of no significance what he said later at the court in a number of sessions in this respect, that his testimony in front of the investigating team was not accurate, because that testimony is considered legal, since it is recorded by three of the investigating judges in the presence of the prosecutor and representative of the accused, attorney Khalil Dulaimy.” • The Trial Chamber repeatedly applied a reasonable doubt standard to its consideration of the evidence. As one of numerous examples, the Trial Chamber summarizes one of its conclusions as follows: “In any case, what is beyond reasonable doubt is that Saddam Hussein had learned when he reviewed the report of the interrogation committee, which was headed by Hussein Kamil in 1987, that several of the detainees died during interrogation as a result of torture. This proves his knowledge of the torture acts and the killing of the Dujail victims that had taken place. In spite of that, he did not take any measure to conduct an investigation and punish those responsible for committing those crimes.” • The Trial Chamber explicitly explains its findings of fact followed by a detailed examination of the mens rea required to support criminal culpability for each charge. “The collaborative criminal objective for several of the defendants in this case … that is required for this type of liability to be established and its availability to the named defendants has been proven by the facts and evidence and circumstantial evidence that we have pointed out previously. This was the only logical and available conclusion from the evidence.” The linkages between the factual evidence and the required mental elements are also repeatedly explained with precision. Knowledge of one criminal order is inferred from the “circumstances that surround the crime and the criminal.” • The decision reveals publicly a number of significant details that were not apparent to casual observers. For example, the court documents “the false swearing by some of the defense testimonies and the probable collusion in this process which violates the law and procedural rules between some of the defense attorneys and those witnesses in the session of 31/5/2006 of the trial.” After testimony that the prosecutor had been in Dujail in July 2004, the defense played a video tape in open court that purported to show the prosecutor [apparently in an effort to discredit him">. The attempted perjury was definitively rebutted because the actual Iraqi man shown in the video was watching the trial on television, and he contacted the court and testified the following day that he was on the video. The witnesses later testified to an investigative judge that they were pushed by the defense attorneys to give untrue attestations. This only one of the hundreds of twists and turns in this momentous case and decision. The Decision is an extended examination of facts and law that merits careful study. Following the issuance of its decision, Trial Chamber I has completed its work unless the Appeals Chamber sends back one or more defendants or one or more issues for further procedures at the Trial level. What is clear is that the Trial Chamber met its responsibilities with a seriousness and judicial temperament that is warranted by this extraordinary case in these extraordinary times in Iraq. Dujail Verdict: Weak on Sentencing by Mark Drumbl 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 23 (2007). Much of the discussion of the Dujail proceedings has focused on whether or not they accord with due process. Another theme that has emerged is whether the judgment can serve as a pedagogical tool or otherwise establish an historical record. Other than Bill Schabas, who argues that imposition of the death penalty in this case would infringe international law owing to the trial's procedural irregularities, no-one has commented on the sentencing part of the Dujail judgment. The sentences earlier had been read in open court. There is no meaningful substantive elaboration in the written judgment. In fact, in the judgment itself, only 4 (of 283) pages are allocated to sentence (in addition, there is a brief discussion in Part 2 regarding the legality of punishment). Although terse, the sentencing discussion is rote and repetitive. It lists the convicts and their convictions, ordered as to type of conviction, and then stipulates a penalty. The IHT offers no explanation as to what the purposes of sentencing are. In other words, it makes no attempt to inform the public why the convicted defendants are to be punished. Is it to achieve retribution? Deterrence? Incapacitation? Reconciliation? Rehabilitation (impossible in a death sentence)? Moreover, the IHT does not explain, for the public, exactly why some of the defendants receive lesser sentences than others. To be sure, a discerning reader can total the numbers of convictions, and the crimes for which convictions were issued, and come to some conclusion that the gravity or weight of certain convictions exceeds that of others or that an accumulation of convictions mechanically leads to a harsher sentence. However, such inferences never are explicated and the absence of any such explication intimates that the sentences actually were quick afterthoughts. Nor are rationales for severe sentences such as the death penalty, or life imprisonment, provided. The IHT does not mention aggravating or mitigating factors. It remains unclear whether what the IHT took as aggravating factors in sentencing were identical to factors it considered in finding liability (the Nuremberg judges did this, but the ICTY, which sentences less severely than the IHT, has repudiated such 'double-dipping'). The detailed focus on verdict and the paucity of attention to sentence is not surprising. As I argue in my forthcoming book, Atrocity, Punishment, and International Law (2007), punishment and sentence remains a woefully under-theorized and under-conceptualized aspect of international criminal law. The IMT at Nuremberg, and subsequent proceedings, barely accorded any attention to sentence (at best, gave fleeting reference to mitigating factors). A similar pattern emerged in the early judgments of the ICTR and ICTY, although in more recent jurisprudence some attempts have been made to identify punitive aspirations and, with a lesser degree of success, operationalize punishment within that framework. The East Timor Special Panels, along with national courts in a variety of settings, similarly fall short in elucidating a penology for perpetrators of atrocity. That the Dujail judgment falls well below the mark established by extant international punishing institutions in terms of the absence of reasoning for sentence is another strike against its credibility. I hope that, upon appeal, clarifications are entered as to the rationales for punishment and the purposes thereof for notorious enemies of humankind such as Saddam Hussein. Or that this matter be 'remanded' to the Trial Chamber for clarification. Elucidating the bases for punishment and justifying actual sentences within these rationales would certainly augment the expressive value of the judgment, its credibility, and also its influence in Iraq and beyond. Analysis of the Verdict - Imposing the Death Penalty on Saddam Hussein Violates International Human Rights Law By William Schabas 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 25 (2007). That Saddam Hussein was responsible for terrible atrocities in Iraq has never been the issue in current proceedings. Many of those who are congratulating the Iraqi justice system for the 5 November 2006 verdict seem to think there is something impressive in the fact that a group of hand-picked judges reached a foregone conclusion. The real test was whether they could hold a trial worthy of the name. And on this count, even those who are most charitable to the Saddam trial find there is a bone that sticks in their throats. Taken at its best, this trial barely passed the test. While that may be good enough for a finding of guilt, international law clearly states that a trial which is flawed from the standpoint of due process can never result in a sentence of death. The first judge resigned, claiming that he was subject to unacceptable pressure. I know of no precedent for this in a modern justice system where the rule of law prevails. Then it got worse. His replacement, who was probably chosen more for his ability to respond to such pressure than to resist it, was fired. The authorities claimed he had shown bias. Again, I know of no precedent for ‘the authorities’ dismissing a judge in the middle of a trial. It was just further confirmation that this court was far from exemplary in terms of modern standards of judicial independence and impartiality. Another terribly disturbing feature was the murder of three of the defence lawyers. The Iraqi authorities cannot be blamed for this. But nor should the fact be simply set aside as irrelevant to the conduct of a fair trial. Where defence lawyers live in fear of their lives – a concern proven to be reasonable, given the tragic outcome for three of their colleagues – it cannot be said that the defendant has had a full and fair defence, and that the right to counsel of one’s choice could be exercised. Many observers seem ready to overlook these terrible shortcomings. I haven’t heard one of them, however, who is prepared to argue that the trial was a model, or that it met all of the important standards of fairness. The best they can offer is to suggest the imperfections were outweighed by the correctness of the verdict. The trial was fair because a guilty man was convicted, they seem to suggest. The reasoning is tautological. Ultimately, it cannot be gainsaid that this was a deeply flawed affair, and somewhat of an embarrassment to those who have worked so hard to see that tyrants like Saddam Hussein, Slobodan Milosevic and Charles Taylor are brought to justice. International human rights law is crystal clear on one point. You cannot execute a person unless he or she has received a fair trial that respects the highest international standards. A reasonably fair trial is not good enough. Nor is a reliable outcome, from the standpoint of guilt or innocence. The case law of the United Nations Human Rights Committee, which is the international monitoring body established to oversee implementation of the International Covenant on Civil and Political Rights, is unequivocal. The death penalty can only be imposed when scrupulous due process standards have been observed. Any significant shortcoming, such as a defect in independence or impartiality of the judiciary, is enough to impugn a death sentence. This jurisprudence of the Committee has never been challenged by a State party, nor has any made a reservation or in some other way contested the interpretation. The issue of capital punishment has been debated in the past in this forum. Those supporting it have correctly noted that the international human rights treaties applicable to Iraq, principally the International Covenant on Civil and Political Rights, do not prohibit the death penalty. The major restriction, that it be imposed only for the ‘most serious crimes’, seems fulfilled in the circumstances. But this issue now is not whether the death penalty is allowed by international human rights law. Rather, the inexorable conclusion must be that while Saddam Hussein may have been found guilty in a court of law, and while he is almost certainly guilty in the court of public opinion, imposition of the death sentence given the shortcomings in the trial is a breach of international human rights law. Simply put, Iraq will violate the International Covenant on Civil and Political Rights, to which it is a party, if it proceeds with the death penalty under such circumstances. Analysis of the Verdict - The Saddam Hussein Trial Mark S. Ellis 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 27 (2007). Guilty as charged. The verdict in the first trial against Saddam Hussein was not unexpected. The prima facie evidence against Saddam and his cohorts was always strong. The calculated decision by the Iraqi High Court to try Saddam for atrocities committed against civilians in the village of Dujail was based on overwhelming documentary and testimonial evidence. During his own ramblings and outbursts, Saddam added to the mountain of evidence against him by brazenly admitting to criminal acts and intent. However, as with any criminal trial, the primary focus must be on fairness, not convictions. Was the Saddam trial fair, impartial, and independent? It is doubtful the trial fully met this standard. Under international law, Iraq had the right and obligation to hold Saddam accountable for his acts, including crimes against humanity. In carrying out this trial, Iraq reinforced two widely accepted legal principles: (1) there is no statute of limitations for international crimes, and (2) Heads of State are not immune from prosecution. However, Iraq also had the legal duty to ensure that any trial met international standards of fairness. From the outset, there was concern that Iraq lacked the capacity to meet these standards, particularly when it was plagued by crippling sectarian violence. Criticism continues to focus on the chaotic nature of the trial proceedings. However, this is not the appropriate benchmark for the Court. The Iraqi trial judges had clear authority, under both Iraqi and international law, to remove disruptive defendants and defense counsel, and even to impose court appointed counsel on the defendants. The key point is that any allegation that the trial failed to meet international standards has very little to do with what occurred inside the courtroom. Throughout the trial, the Court displayed a comprehensive and insightful understanding of the legal issues. Weaving together a myriad of witness statements, documents, and forensic evidence, the Court formed a compelling and well-reasoned account of the crimes committed by Saddam’s regime. In its verdict, the Court’s decision to acquit one lower-level defendant speaks to the trial’s credibility. It was apparent early on that this defendant did not possess the prerequisite knowledge that his acts were part of a widespread or systematic attack against a civilian population. Knowledge, either actual or constructive, is a fundamental element in prosecuting crimes against humanity. Correctly, the Court refused to cast an indiscriminate net over all defendants. The lesser charges against other low-level defendants were also well-reasoned and appropriate. . No, it is the Iraqi government that will bear responsibility for the Court’s failure to meet international standards. In both the Dujail trial and the current Anfal trial, the government made a series of inappropriate and egregious comments regarding the trial proceedings. More damaging, government actions led to the resignation of two successive chief judges in the Dujail case. More recently, the government summarily dismissed the chief judge in the Anfal case for being, in the government’s opinion, too lenient towards the defendants. The most fundamental component of a fair, independent and impartial trial is the absence of political interference. Regrettably, the Iraqi government has displayed a complete lack of adherence to this most basic principle. Holding Saddam Hussein legally responsible for his actions was a test for Iraq and there were great expectations for this moment. Many Iraqis pinned their hopes on the Court in part to bring closure to an era, but more importantly, to demonstrate the capacity and integrity of the Iraqi legal system.. In the end, the Iraqi government’s blatant interference in the trial process reversed, at least temporarily, these aspirations. The casualty here was the Court, whose legitimacy and prestige has been weakened. Although Saddam was rightly convicted, the Court will be remembered not so much for unveiling truth and carrying out justice as for being an instrument of the government. It did not have to be this way. Posted @ 11:02 AM | Experts Debate the Issues: The Anfal Trial | 197 Comments | 0 Trackbacks |
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