AIDP Blog

Bush is Critical of Hangings in Iraq

2007-01-18T07:01:00.000-08:00

Following British Prime Minister Tony Blair's condemnation of the hanging of Saddam Hussein and his co-defendants, President Bush offered his strongest criticism of the executions during an interview with PBS Newshour host Jim Lehrer on January 16:

"I was disappointed and felt like they [the Iraqi government] fumbled the - particularly the Saddam Hussein - execution. It reinforced doubts in people's minds that the Maliki government and the unity government of Iraq is a serious government, and - which makes it harder for me to make the case to the American people that this is a government that does want to unify the country and move forward. The Saddam execution, however, was an important moment in some ways because it closed a terrible chapter and gives the unity government a chance to move forward...[I]t looked like it was kind of a revenge killing. And it sent a mixed signal to the American people and the people around the world. And it just goes to show that this is a government that has still got some maturation to do."

The Trial and Execution of Saddam Hussein

2007-01-12T12:54:00.000-08:00

I was interviewed on the Detroit talk radio program "The Advocate." During the 40 minute interview we discussed the trial of Saddam Hussein and his execution.

The full program can be found here , my part starts at the 23 minute point.

Saddam Execution Leaves Kurdish Story Untold

2006-12-29T17:43:00.000-08:00

The execution of Saddam Hussein by hanging today in Baghdad could bring to a close the troubled proceedings of the Iraqi High Tribunal. Originally designed by U.S. occupation forces as the Iraqi Special Tribunal and subsequently renamed by the Iraqi government, the IHT was set to try Saddam for seven discreet crimes including the genocide of the Kurds, destruction of the Marsh Arabs, and multiple mass atrocities. But it was his conviction for the 1982 massacre of 148 Shi'ites from the opposition Dawa party in the town of Dujail that ultimately drew the death sentence and sealed the former Iraqi president's fate. Under Iraqi law, death sentences must be carried out within 30 days of a final appeal, and the appellate court in Saddam's case confirmed his death sentence this week.

The decision not to try Saddam before an international tribunal, but rather before an Iraqi court in occupied Baghdad, brought with it many complications. First, because the court was established by the U.S., subsequently blessed by both the governing council and iterim government, then embraced by the elected Iraqi government without any significant changes, it never enjoyed the gloss of legitimacy that a domestic independent national court should have. Moreover, due to the aggressive de-Ba'athification policies of the U.S., higher level judges were removed from service, leaving only less-qualified lower-level judges to contend with sophisticated defense counsel, complex international legal charges (war crimes, crimes against humanity, and genocide) and an unruly group of former tyrants. Thus, the IHT was ill-equipped to handle the trials on its docket from the outset.

Once the Dujail trial began, the IHT proved incapable of guiding the proceedings in a fair and unbiased manner. The Chief Judge resigned in disgust amidst charges of government interference with the court's independence midway through trial. Multiple defense counsel and associated personnel were gunned down in the streets, and some fled to Jordan in fear for their lives. The unstable security environment also hampered defense counsel's ability to investigate and test evidence offered by the prosecution, which only had to meet a satisfaction of guilt standard by the IHT as opposed to a "beyond reasonable doubt" standard used by international criminal tribunals.
And human rights groups, no friend to Saddam while he was in power, nevertheless uniformly condemned the IHT trials as unfair, specifically noting a lack of familiarity with international criminal law on the part of Iraqi lawyers and judges despite the fact such crimes were being charged and the extensive use of anonymous witnesses, thereby limiting defense counsel's ability to adequately counter the evidence against their clients.

So what happens now? Only one of the seven trials has been completed. Saddam was in the middle of the Anfal trial for the genocide perpetrated against the Kurds in northern Iraq during the end of the Iran-Iraq War. Because the IHT was trying Saddam's crimes sequentially instead of together, five other trials have yet to begin. The IHT's options are to end the trials of Saddam now, or continue to try Saddam posthumously. Either way, the outcome is less than optimal. Ending the trial process truncates exploration of the full guilt of Saddam Hussein for his crimes. But continuing the trial posthumously would be a one-sided affair, disallowing a vigorous and active defense the ability to test the truth of the evidence presented. Moreover, from the perspective of the victims, Kurds will be seen as not receiving justice while Shi'ites (victims in the Dujail trial) did. This would be especially true from the storytelling standpoint, which is key to national healing and reconciliation after long periods of traumatic rule by ruthless despots.

The Iraqi government should have stayed Saddam's death sentence until the completion of the trials against him, or at least until the completion of the Anfal trial for genocide, not only as a matter of justice for Iraq's Kurdish population, but because there are many aspects of genocide that remain unsettled. What the IHT may contribute to the small canon of genocide cases since Nuremberg is potentially significant. For instance, the question of whether ethnic cleansing constitutes genocide continues to be debated within the academy. Ethnic cleansing was a central aspect of Saddam's Anfal campaigns against the Kurds. Moving the Kurdish population out of the area around the oil fields and repopulating those areas with Sunni Arabs occurred relentlessly during this time frame. Kurds in northern Iraq are now dealing with the problem of resettled Arabs in traditionally Kurdish lands because of that ethnic cleansing. A judgment on whether this is genocide would be extremely helpful in the development of the law of genocide, even it comes from a somewhat flawed tribunal.

Consequently, although the great tyrant is dead, his trial should continue - even if posthumously, on the question of guilt for the Anfal campaigns. His co-defendants in that trial will remain co-defendants, but his counsel should remain at table. The law that will come out of it is important, and the quality of the trial, such as it is, will only be heightened if Saddam's more sophisticated counsel remain in the game instead of leaving it to the counsel of his co-defendants alone. Moreover, Iraq's Kurds deserve to have their victimhood, and Saddam's role in it, as legally recognized as the Shi'ite population. To be sure, the full extent of Saddam's atrocities will not be as completely appreciated as if he physically stood trial for all his crimes. But at least by letting the Anfal trial move forward, the IHT would finish some of what it started.

Professor Kelly is author of the book "Nowhere to Hide: The Trials of Slobodan Milosevic and Saddam Hussein" (Peter Lang 2005) with a foreword by Desmond Tutu, winner of the 2006 Book of the Year Award from L'Association Internationale du Droit Penal.

Spanish Judge Dismisses Argentine Genocide Case

2006-12-21T10:49:00.000-08:00

A Spanish judge has ruled that Spain lacks jurisdiction to try a former Argentine official on charges of genocide committed during the reigh of the juntas in Buenos Aires. Here's the latest from BBC News:

Dec. 20, 2006
Spain rejects 'dirty war' trial

Ricardo Cavallo has been in custody in Madrid since June 2003Spain has ruled against trying former Argentine junta officer Ricardo Cavallo on human rights charges but invited Argentina to call for his extradition.
The high court in Madrid decided it had no jurisdiction over Mr Cavallo, who has been in Spanish custody since 2003.
Argentina has not yet commented. The ex-naval commander is facing genocide and terrorism charges, which he denies.
Up to 30,000 people are said to have been killed or disappeared in Argentina during the "dirty war" of 1976-1983.
Ricardo Cavallo served at the notorious Navy School of Mechanics in Buenos Aires, a detention centre in which hundreds of people were tortured and killed.
At least 614 people were held at the navy school during the military campaign against left-wing insurgents. Many were drugged and thrown from aircraft into rivers and the sea.
Immunity
Mr Cavallo was extradited to Spain from Mexico in June 2003, and Spanish prosecutors had requested up to 17,000 years in prison for the death and torture of Spanish citizens.
Military officers who carried out the human rights abuses were granted immunity from prosecution in Argentina under laws passed soon after the return to democracy.
However, Argentina's Supreme Court repealed the laws in 2005, paving the way for possible criminal proceedings.
Under the Spanish ruling Argentine authorities have 40 days to request Mr Cavallo's extradition.
Spain has been investigating violations by former military regimes in Argentina and Chile for more than a decade under a legal doctrine that allows prosecution of crimes like terrorism even if they are alleged to have been committed elsewhere.
In April 2005, another former military officer from Argentina, Adolfo Scilingo, was sentenced in Spain to 640 years in prison for crimes against humanity.

Dujail Opinion in Saddam Trial Released...

2006-12-05T14:52:00.000-08:00

From Professor Michael Scharf:

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.

Michael P. Scharf
Professor of Law and Director
Frederick K. Cox International Law Center
Case Western Reserve University
School of Law
11075 East Boulevard
Cleveland, Ohio 44106
Phone: 216.368.3299
Fax: 216.368.2086
E-mail: michael.scharf@case.edu

New Testimony in Saddam's Genocide Trial...

2006-11-27T11:30:00.000-08:00

BBC is reporting new testimony today in the trial of Saddam Hussein for his role in approving the genocide campaign, known as the Anfals, against the Iraqi Kurds in the late 1980's:

Saddam trial hears Kurd witness

Saddam Hussein was sentenced to death earlier this monthA Kurd has testified how he survived a firing squad by Iraqi forces at the resumption of Saddam Hussein's genocide trial in the Iraqi capital, Baghdad.
The deposed leader and six others are on trial over their role in a campaign against the Kurds in the 1980s in which over 180,000 are alleged to have died.
A defence lawyer claims a foreigner gave him a list of witnesses to call.
Correspondents say the court hopes to complete the case before Saddam Hussein is executed following his conviction.
The former leader was found guilty of crimes against humanity for the killing of 148 people in the mainly Shia town of Dujail following an assassination attempt on him in 1982.
He was sentenced to death by hanging on 5 November, but under Iraqi law the guilty verdict is automatically sent to the appeal court.

'Lined up'

The Anfal trial resumed after a two-week break as a curfew imposed on Thursday after deadly car bombings in a Shia area of Baghdad was lifted.
Saddam Hussein and the six co-defendants face charges over their role in the 1987-88 Anfal campaign against ethnic Kurds, many of whom were gassed to death.
All seven defendants were in court, mostly represented by court-appointed lawyers, as some defence lawyers have been boycotting the trial.
The court has heard some harrowing accounts from Kurdish survivors of the operation, which they say was designed to move people from their homes, says the BBC's David Loyn in Baghdad.
The first witness of the day, Taimor Abdallah Rokhza, described how Kurdish villagers were killed.
"There was a trench there and we were lined up and a soldier was shooting at us," the French news agency AFP quoted him as saying.
"Then suddenly it stopped and it was quiet. I was waiting to die and my whole body was covered with blood, and the soldiers went away."
The testimony came as defence lawyer Bedia Araf claimed that either an American or Canadian had come to his house on Sunday night and proposed a list of 30 people to call as witnesses.
Mr Araf said the foreigner claimed to have the power to get his client released or convicted.
The judge expressed impatience, appealing to Mr Araf to provide any list of witnesses, as the court needed time to process them securely.
It is not clear if the Iraqi authorities will wait until the second trial is complete before they carry out the sentence in the first case.
Iraqi Prime Minister Nouri Maliki has said he expects Saddam Hussein to be executed by the end of 2006.

Rumsfeld Sued in Germany on Behalf of Abu Gahreib & Guantanamo Detainees

2006-11-15T08:25:00.000-08:00

This just in from Der Spiegel:

Nov. 14, 2006
War Crimes Suit Filed against Former Defense Secretary

A coalition of human rights groups has filed a criminal lawsuit against former US secretary of defense Donald Rumsfeld in Germany, accusing him of war crimes. A first attempt to prosecute him in 2004 failed, but the activists feel they have a better chance this time -- and they have a powerful witness on their side.

It's been a bad few days for former United States secretary of defense Donald Rumsfeld. First he had to fall on his sword after the Republicans lost control of Congress in last week's US mid-term elections. Now a coalition of human rights groups is taking him to court in Germany over alleged war crimes.

Another headache for former US secretary of defense Donald Rumsfeld
The coalition, led by the New York-based civil rights group Center for Constitutional Rights (CCR), filed a criminal complaint against Rumsfeld on Tuesday at the Federal Prosecutor's Office in Karlsruhe, Germany. The complaint calls on the prosecutor to investigate whether high-ranking US officials authorized war crimes in the context of the war on terror.

The complaint is being brought on behalf of 12 alleged torture victims, 11 of whom are Iraqi citizens who were held at the notorious Abu Ghraib prison in Baghdad. The twelfth man is Guantanamo detainee Mohammed al-Qahtani, a Saudi citizen identified by the US as a would-be participant in the 9/11 attacks and held at Guantanamo since January 2006.

After al-Qahtani did not respond to normal questioning, he was allegedly subjected to a regime of aggressive interrogation techniques, approved by Rumsfeld and known as the "First Special Interrogation Plan," which included severe sleep deprivation, forced nudity, and sexual and religious humiliation. Military investigators concluded in July 2005 that al-Qahtani had been subjected to abusive and degrading treatment, although the Pentagon denied he had been tortured.

The human rights groups have not just set their sights on Rumsfeld, though. The suit names 11 other high-ranking US officials, including current US Attorney General Alberto Gonzales, former CIA director George Tenet, and Ricardo Sanchez, the former commander of all US forces in Iraq. They are all accused of either ordering, aiding, or failing to prevent war crimes.

"There crimes are not the work of a few bad apples," said CCR president Michael Ratner. "They were planned and executed at the highest levels of the US government."

CCR and its partner organizations filed a similar complaint in 2004, but it was dropped. They claim the US pressured Germany to drop the case, which was dismissed in February 2005 on the eve of a visit by Rumsfeld to Germany. At the time, then-federal prosecutor Kay Nehm said that there were no indications that the US authorities would "refrain from penal measures" regarding the violations described in the complaint. The activists believe that Nehm's successor, Monika Harms, who took office earlier this year, may be more amenable to their cause.

And they also feel they have more chance of success this time. One reason is new evidence such as documents from the 2005 Congressional hearings on the al-Qahtani case. Rumsfeld's resignation last week may also mean that prosecutors are under less political pressure to shun the case, the activists feel. His resignation also means he can no longer try to claim immunity as a sovereign official from international prosecution for war crimes.

And the human rights groups have an ace up their sleeve: Janis Karpinski, the former commander of Abu Ghraib, will appear as a witness on their behalf.

"Janis Karpinski is the witness," commented Kaleck. "The plaintiffs can and should testify (about) what happened to them, but on the other hand they cannot testify who ordered and enforced the interrogation methods, and who conducted them. You must have someone from the apparatus, and this is Janis Karpinski."

Karpinski , who resigned from the army in July 2005, wants to shed light on the incidents that ended her army career. "I served for 28 years," Karpinski told the Berlin daily Der Tagesspiegel. "I was entirely committed to the army. Then they make me into a scapegoat."

The case is being brought in Germany because under the country's 2002 Code of Crimes against International Law (CCIL), the German federal prosecutor is entitled to prosecute war criminals irrespective of the location of the defendant or plaintiff, the place where the crime was carried out or the nationality of the persons involved.

"In November 2004, we went to Germany because it was seen as a court of last resort, and in 2006 it still is," commented Berlin attorney Wolfgang Kaleck, who is representing the organizations. "There is simply no other place to go except to foreign domestic courts."

The case could not be brought to the International Criminal Court in The Hague because the US is not a member, Ratner said, adding that the case could also not be pursued through the United Nations because of the US's veto power.

"One of the goals has been to say a torturer is someone who cannot be given a safe haven," Ratner said. "It sends a strong message that this is not acceptable."

Ratner admitted it was unlikely that Rumsfeld would ever end up in a German prison. But even if German prosecutors fail to take up the case, Ratner feels renewed media attention to the issue of torture is an end in itself. "We have won a part of this case already," he said.

And even if Rumsfeld gets off again in Germany, Kaleck told the Tagesspiegel he is confident the former secretary of defense will get his comeuppance elsewhere: "If not today in Germany, then Rumsfeld will get problems tomorrow in Spain, or the next day in Sweden."

Saddam's Sentencing

2006-11-02T12:08:00.000-08:00

What to Look For in the Dujail Trial Judgment

By Professor Michael P. Scharf

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.

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

Invitation to Join AIDP

2006-10-25T07:59:00.000-07:00

An Invitation to Join the
International Association of Penal Law
American National Section

About the AIDP: The International Association of Penal Law (which goes by the acronym AIDP – using the initials of the French name for the organization) was founded in Vienna in 1889. The AIDP has over 3,000 members and affiliates in 120 countries, and 47 national sections. The U.S. National Section currently has 97 members. The AIDP publishes the International Revue of Criminal Law, as well as the Nouvelles Etudes Penales. The AIDP also hosts a major international congress every five years. The next congress in 2009 will be in Istanbul, and we hope to have a large American National Section representation there. Prior to the Conference there will be four Prep Cons held across the globe, covering the following topics: (1) participation and preparation with a view to transnational crimes; (2) financing of terrorism; (3) due process and terrorism; and (4) international cooperation in criminal matters and universal jurisdiction.

Membership Dues: Attached please find the 2006 Annual Dues and Membership Information form for you to send in with your membership fee to become a member of the International Association of Penal. The $100/$60 fee covers both the membership fee for the international association ($85 US) and the fee for the American National Section ($15) (the $100 amount includes a subscription to the Revue Internationale De Droit Penal; the $60 fee is for those who do not want to receive the Revue). Do not send your dues directly to Paris Headquarters of the AIDP; rather we ask that you return your check and membership form in the enclosed pre-addressed envelope to Peter Henning, the Treasurer of the American National Section.

Annual Conference: The “Lessons from the Saddam Trial” is serving as the 2006 annual conference of the AIDP American National Section. In addition to conference panelists, members of the AIDP are invited to participate in the Saturday “Experts Meeting” to draft a “Lessons Learned” Document for the Iraqi High Tribunal. The 2005 Annual Conference was on “Torture and the War on Terror.” Members of the American National Branch receive complementary copies of the special symposium issue produced from the annual conferences. The Section also presents an annual Article and Book of the Year Award at its Annual Conferences.

AIDP International Criminal Law BLOGs: Professor Michael Kelly is serving as the American National Section’s Director of Studies. As Director of Studies, Michael has created an AIDP Blog for members to post comments on salient developments in the field for world wide viewing over the internet. See: http://aidp.blogspot.com/ . In addition, a dozen members of the American National Section are contributing expert essays to the “Grotian Moment: Saddam Hussein Trial Blog”: www.law.case.edu/saddamtrial , an award-winning website which averages 2,000 visits a day. If you would like to be added to the list of expert bloggers and periodically contribute an essay on developments related to the Saddam Trial, please let me know.

Academic Consortium for Iraqi High Tribunal: In 2005, the Department of Justice Regimes Crimes Liaison Office in Baghdad approached the American National Section about putting together an Academic Consortium to provide research assistance to the Iraqi High Tribunal, which is trying Saddam Hussein. The Consortium currently consists of AIDP American National Section members -- Linda Malone of William and Marry College of Law, Laura Dickinson of Connecticut University School of Law, Michael Newton of Vanderbilt Law School, and myself. If you are interested in participating in the Academic Consortium please let me know.

Sincerely,

Michael P. Scharf
President, AIDP American National Section
Professor, Case Western Reserve University School of Law

Uganda/ICC Investigation Update:

2006-10-16T13:15:00.000-07:00

Here are several recent reports out of Uganda on the emerging political situation with respect to the ICC's ongoing investigation:

No peace unless ICC charges dropped-Uganda's LRA

Reuters

by Francis KweraOctober 9, 2006
Uganda 's Lord's Resistance Army (LRA) rebels reiterated a threat on Monday to keep fighting one of Africa's longest insurgencies unless international arrest warrants for their top commanders are scrapped.
The government and rebels signed a long-awaited truce in August, supposed to give both sides breathing space while peace talks aimed at ending their 20-year rebellion continued in the south Sudanese capital Juba.
But LRA leader Joseph Kony and deputy Vincent Otti have refused to leave their jungle hideouts on the Sudan/Congo border to talk directly, fearing arrests over war crimes indictments against them by the Hague-based International Criminal Court.
"They should not expect us to sign an agreement and later cage our leaders in The Hague. Our leaders are not fools," LRA spokesman Godfrey Ayoo told journalists in Juba.
The charges against five top LRA commanders are seen as a test case for the fledgling human rights court, but many Ugandans see it as an obstacle to a long-awaited peace deal.
"As long as the ICC indictments still stand, no single soldier is going to come out of the bush. This is the position we have taken and it will not change," Ayoo said.
Despite a ceasefire, tempers have frayed between the LRA and the Ugandan army in the past two weeks.
The government accuses the LRA of failing to gather in two meeting points in southern Sudan agreed under the truce and has threatened to attack any LRA still in northern Uganda.
The LRA accuses the army of surrounding their fighters in the meeting points, planning an attack.
The rebels gained notoriety during their insurrection for brutally killing civilians, hacking body parts off people they accused of being government collaborators and kidnapping thousands of children to use as fighters and sex slaves.
Fear of rebel attacks have driven nearly 2 million from their homes and into squalid refugee camps.
Many Ugandans in the war-torn north say they would happily sacrifice international justice for the sake of peace.
"We are going to keep on talking here in Juba but those involved should know that the ICC indictments are a major stumbling block," Ayoo said.
President Yoweri Museveni, who despite having written to the ICC last year to request the indictments, has said he would be willing to offer the LRA leaders amnesty from prosecution but only after a peace deal is signed.

Uganda ’s peace process now in critical phase, warns senior UN aid official

UN News Service October 11, 2006
The emerging peace process in northern Uganda, where hopes are high that a brutal, 20-year conflict may be finally over, has reached a highly delicate stage, the United Nations’ top humanitarian official warned today.
Under-Secretary-General for Humanitarian Affairs Jan Egeland told a press briefing in Geneva that while “dramatic progress” has been made in the peace process, it was a struggle to keep the momentum going.
“The next weeks will be absolutely crucial for whether or not we can bring to an end one of our generation’s worst wars… [it is] an extremely fragile process,” he said, referring to ongoing peace talks in Juba, southern Sudan, between the Ugandan Government and the rebel Lord’s Resistance Army (LRA).
“I’m hopeful that we can now see an end to it all but then we have to be creative, we have to be courageous [and] we have to be flexible in assisting this African-led peace process.”
On 26 August Uganda and the LRA signed a cessation of hostilities to end the conflict, confined largely to the country’s north and east, but a comprehensive peace deal has not yet been struck. Five senior members of the LRA, including its leader Joseph Kony, also face International Criminal Court (ICC) indictments for alleged war crimes.
Mr. Egeland said he was concerned that some members of the LRA have left camps in southern Sudan, where they were supposed to settle under the cessation of hostilities agreement, because of recent nearby movements by Ugandan military forces.
He added there was also concern that the assembly points lacked adequate services, and the UN Office for the Coordination of Humanitarian Affairs (OCHA) last week launched the Juba Initiative Fund to support the peace talks and help the local civilian population.
During its war with Uganda, which began in 1986, the LRA became notorious for abducting children and then using them as soldiers or porters, while subjecting some to torture and allocating many girls to senior officers in a form of institutional rape. As many as 80 per cent of the local Acholi people have also been displaced as a result of the fighting.
Last month Uganda’s Foreign Minister Sam Kutesa told the General Assembly’s high-level debate that his Government had made “a painful decision to offer amnesty” to LRA leaders because it believes that is the best way to end the conflict peacefully.

Uganda says no authority to remove ICC indictments

Reuters

by Tim Cocks October 12, 2006
KAMPALA, Oct 12 (Reuters) - Ugandan rebels are making an impossible demand by insisting International Criminal Court indictments against their commanders are lifted before they sign a peace deal, the government said on Thursday.
A truce signed in August between the government and Lord's Resistance Army, one of Africa's most feared rebel groups, raised hopes of an end to a vicious 20-year insurgency that has killed tens of thousands of people and displaced 1.7 million.
But the LRA has repeatedly said it will not sign a final peace deal at talks in the south Sudanese capital, Juba, unless the ICC indictments against its leaders are dropped.
"We have no authority to offer a lifting of the indictments," a spokesman for the government peace team, Paddy Ankunda, told Reuters by telephone from Juba.
"We can only engage the ICC after the LRA agree to signing a comprehensive peace agreement. That's the best we can offer."
LRA leader Joseph Kony and four other commanders are wanted by the Hague-based human rights tribunal for war crimes including mass murder, rape and child abduction.
LRA deputy commander Vincent Otti has said he would leave his jungle hideout on the Sudan/Congo border and join talks in Juba, where the LRA are represented by sympathisers, but only after the ICC revokes its indictments.
In Juba, a new LRA document said some of their other demands included compensation for stolen livestock and that 40 percent of government jobs be given to northern Ugandans to correct what they called a historical imbalance in favour of southerners.
"Livestock was raided in many parts of northern Uganda between 1986 and 1990. The government shall ... make appropriate compensation," a copy obtained by Reuters said.
LRA representatives could not be reached for comment.
President Yoweri Museveni has said an amnesty for the LRA leaders is possible if they first surrender.
"We have to have them come out and accept their atrocities, ask forgiveness and reconcile. Only then can we ask the ICC for a removal of the indictments," Ankunda said.
The truce remains fragile with tempers fraying and both sides accusing each other of violations.
Some Acholis, the northern tribe which have borne the brunt of the conflict, want the LRA leaders to face traditional "Mato Oput" ritual justice as an alternative to jail in The Hague.
U.N. officials and diplomats have said such a system could work, provided it does not grant immunity for war crimes.
The Mato Oput ritual relies heavily on the perpetrators admitting their crimes and the LRA denies the brutal killings of civilians, mutilating survivors and kidnapping of thousands of children which made them notorious.

U.N. War Crimes Commission Archives Donated to Case

2006-10-03T07:23:00.000-07:00

At the beginning of Case School of Law’s “Lessons from the Saddam Trial" symposium on Fri., Oct. 6, 2006, there will be a special ceremony to dedicate the Archives of the U.N. Commission of Experts on War Crimes in the Former Yugoslavia, which were donated to the law school by the Chairman of the Commission, Professor Cherif Bassiouni. The Archives include more than forty volumes of original documents, notes and photographs that have never before been available to the public, as well as artifacts of the Commission’s “War Room,” including maps showing the locations of detention centers and mass grave sites.
Under Bassiouni’s leadership, the Commission was the first U.N. body to document the genocidal campaign of ethnic cleansing in Bosnia, and to call for the prosecution of perpetrators before an international court, leading to the creation of the first international war crimes tribunal since World War II and ushering in a new era of accountability for atrocities.For your reference, attached is a brief “Occasional Paper of the Cox Center,” which describes the historic importance of Bassiouni’s and the Commission’s work. The Archives are available in hard copy at a special location on the third floor of the Case School of Law Library, and in digital form at: http://hdl.handle.net/2186/ksl:UN780CommissionArchive
For information about the Cox Center’s upcoming “Saddam Trial” symposium, which is free and open to the public and will be Webcast live, see: http://law.case.edu/centers/cox/content.asp?content_id=90

Judge in Saddam Trial Sacked

2006-09-25T09:23:00.000-07:00

Saddam Husseins top lawyer, Khalil al-Dulaimi - a Jordanian, walked out of his trial last week in protest of a new judge, Muhammed al-Ureybi, who was appointed to fill the job of Chief Judge Abdullah al-Amiri, who was sacked by the government for appearing to hold bias in favor of Saddam. The statement that cold al-Amiri his job was that Saddam was not a dictator. Of course, this raises questions of judicial independence - if the Prime Minister's office can swap judges in mid-trial, then the integrity of the system is in question. Such issues as bias should be dealth with within the judiciary, and handled on appeal. It should be remembered that the first chief judge in Saddam's previous trail (for the DuJail massacres) quit over the issue of political interference with the trial process.

BBC has the story on Judge al-Amiri's demise:

The judge in charge of Saddam Hussein's genocide trial has been replaced, the Iraqi prime minister's office said.
Earlier, the government said it had asked the court to sack Chief Judge Abdullah al-Amiri accusing him of losing his "neutrality".
Last Thursday, Mr Amiri sparked controversy by saying the ex-leader had not been a dictator.
There has been no confirmation from the court. In Saddam's first war crimes trial the judge also stepped down.
"We have asked the court to replace the judge because he has lost his neutrality," government spokesman Ali al-Dabbagh told Reuters.
"The court told us he has already been replaced. This was a decision by the cabinet of the prime minister."
Chief Prosecutor Munqith al-Faroon called for the judge to stand down last Wednesday, saying he is biased towards the former Iraqi leader.
Mr Faroon said defendants had been given too much room to threaten witnesses and make political speeches.
Mr Amiri rejected the request, saying his approach was based on fairness and 25 years' experience.
A day later he intervened on Saddam Hussein's behalf to say the former Iraqi leader had not been a dictator, but had only been made to seem like one by his aides.
Correspondents say the latest change could revive complaints the government is interfering in trials of former regime members to ensure a quick guilty verdict.
Saddam Hussein and six others are on trial for war crimes during the so-called Anfal campaign in which up to 180,000 Kurdish civilians died in the late 1980s.
Saddam Hussein and his cousin, Ali Hassan al-Majid, popularly known in Iraq as Chemical Ali, face additional charges of genocide.

Saddam's Trial for Massacre of Kurds Continues with Witness Testimony

2006-09-12T07:18:00.000-07:00

Compelling witness testimony was presented in the Saddam Hussein trial before the Iraqi High Court on September 11. This is the second trial of Saddam for atrocities committed during his regime - focusing on the Anfal campaigns, which were undertaken to wipe out large numbers of Iraqi Kurds during the late 1980's. Saddam denied that his repressive tactics were meaningless, contending that he had to carry them out in order to win the Iran-Iraq War at a time when Iran was making incursions into northern Iraq and the Iraqi Kurds were collaborating with them.

Here is the latest report from AP:

Saddam: No Guilt About Kurd Crackdown
By QAIS AL-BASHIR

BAGHDAD, Iraq (AP) - A 56-year-old Kurdish-American woman told of seeing people sickened and dying during an alleged chemical attack carried out by Saddam Hussein's forces, as his genocide trial resumed Monday. The defiant ex-president told his countrymen they should not feel guilty for crushing the Kurdish insurgency in the 1980s.
The prosecution alleges about 180,000 people were killed in the Anfal campaign in 1987-88 to put down a Kurdish insurgency during the later stages of an Iraqi war with Iran. Saddam accused the Kurds of helping Iran in the war.
"My message to the Iraqi people is that they should not suffer from the guilt that they killed Kurds," Saddam said as his trial resumed after a three-week break.
During the proceedings, a defiant Saddam clutched the Quran, Islam's holy book, and insisted that the judge address him as the "president of Iraq." He accused Kurdish witnesses against him of stirring sectarianism and racism and insisted he treated loyal Iraqi Kurds fairly.
"All the witnesses said in the courtroom that they were oppressed because they were Kurds," Saddam shouted. "They're trying to create strife between the people of Iraq. They're trying to create division between Kurds and Arabs and this is what I want the people of Iraq to know."
Addressing Iraqis, Saddam said passionately that the Kurds enjoyed rights under his regime and that he had clamped down on insurgents among them.
"I formed two brigades in the Republican Guards composed completely of Kurds," Saddam said, referring to the period before the 2003 war against the United States. "This is a proof that the Iraqi government then did not discriminate against Kurds."
"The other proof is that when I was in Kut following the victory against Iran (in 1988), I said in front of everyone, including the media and television stations, that I prohibit the security to arrest any Kurd," he said.
"I told them that anyone who has a complaint against a Kurd has to come to me first."
"I didn't offer the same, and God is my witnesses, to the people of Basra or my family in Tikrit, but only to the Kurds," Saddam said shortly before the proceedings adjourned until Tuesday.
Katreen Elias Mikhail, a Kurdish Christian and former militia fighter, testified that four Iraqi planes unleashed a wave of bombs on the evening of June 5, 1987, on the Kurdish town of Qalizewa in northern Iraq, sending people fleeing for shelter.
"I smelled something dirty and strange," she told the court.
Mikhail said she was stranded in an underground shelter with her friend Umm Ali and dozens of other people.
"Then, I heard comrade Abu Elias shout, 'Is there a doctor here?'" said the dignified-looking woman, her left hand trembling.
"People were falling to the ground. They vomited and their eyes were blinded. We couldn't see anything."
"We were all afraid," she said, her voice cracking. "It was our first time seeing bombs falling on our heads."
Sitting in the witness stand, she said her friend Nashme told her that "the whole town was hit with chemical weapons."
When the smoke subsided, Mikhail said she saw some people with "burn wounds and they were blind; I was able to see just a little."
Mikhail appeared to lodge a complaint against Saddam and his cousin Ali "Chemical Ali" al-Majid, who are among the seven defendants charged in Operation Anfal.
Another witness, Ahmed Abdul-Rahman, said he was jailed and tortured for four months.
Fellow Kurd, Sardar Ali Salih, said he lost two brothers and his village was burned in an elite Iraqi forces crackdown in 1987.
He also said that he and 125 others were detained. About half that group was never heard from again; the rest were released.
"While in prison, they beat and tortured us. I stayed there for three months," Salih said in Kurdish, which was translated into Arabic.
Saddam's chief lawyer, Iraqi Khalil al-Dulaimi, was not present, but attorneys for other defendants were on hand.
Monday's hearing began with an argument between chief judge Abdullah al-Amiri and Saddam's Tunisian lawyer, Ahmed Saddiq. The judge asked Saddiq not to speak on behalf of his client, but to consult the Iraqi attorney who heads Saddam's defense. The lawyer rejected that and left the courtroom in protest.
Saddam is still waiting a verdict on Oct. 16 in the first case against him - the nine-month-long trial over the killings of 148 Shiites in Dujail after a 1982 assassination attempt against him there. In that case as well, he and seven other co-defendants could face the death penalty.
The Anfal trial, which began in August, is likely to take months. The campaign was on a far greater scale than the Dujail crackdown.
Late Sunday, about 300 Kurdish demonstrators in northern Iraq demanded a swift trial for Saddam and also trials for Kurdish military commanders who they said had worked with Saddam during the Anfal campaign.
The Bush administration had argued that a U.S.-led invasion of Iraq was needed to unseat Saddam because he possessed weapons of mass destruction and had ties to al-Qaida.
As recently as an Aug. 21 news conference, President Bush said people should "imagine a world in which you had Saddam Hussein" with the capacity to make weapons of mass destruction and "who had relations with al-Zarqawi," referring to Abu Musab al-Zarqawi, leader of al-Qaida in Iraq who was killed in a U.S. airstrike in June.
A recent U.S. Senate committee report found no link between Saddam and the terror network, and Saddam's alleged possession of weapons of mass destruction was debunked after the 2003 U.S.-led invasion of Iraq, when none could be found.
Yet the Anfal case points to his alleged use of poison gas against Iraqi citizens, a charge often leveled by Washington.
Since the trial opened Aug. 21, witnesses have offered grim testimony of entire families dying in chemical weapons attacks against their villages. They said survivors plunged their faces into milk to end the pain from the blinding gas or fled into the hills on mules as military helicopters fired on them.
Kurdish survivors say many villages were razed and countless young men disappeared.
They also accuse the army of using prohibited mustard gas and nerve agents. But the trial does not deal with the most notorious gassing - the March 1988 attack on Halabja that killed an estimated 5,000 Kurds. That incident will be part of a separate investigation by the Iraqi High Tribunal.

Names of Srebrenica Genocide Perpetrators Published

2006-09-05T12:09:00.000-07:00

This just in from War Crimes Prosecution Watch:

The Bosnian daily newspaper Oslobodjenje has started publishing a list of over 800 Bosnian Serbs who allegedly participated in the Srebrenica massacre in July 1995, and are still believed to be in positions of power.
These names are just a small part of a much bigger list of some 28,000 people who, according to the Republika Srpska, RS, authorities, were directly or indirectly involved in the massacre.The newspaper’s move follows years of public and political pressure to release these names to the public.During her visit to Srebrenica on July 11 this year, the Hague tribunal’s chief prosecutor Carla del Ponte said, “The tribunal has never imposed an embargo on publishing the list - therefore, I will see to it that the list be made public soon."Back in October 2004, the RS Srebrenica Commission, under pressure from the international community, released a report in which they acknowledged that Serbs had been responsible for killing thousands of Muslim men and boys from Srebrenica in July 1995. Out of 28,000 names that the full version of the report apparently contains, 892 are reported to be individuals still employed by governmental and municipal institutions.Shortly after Del Ponte’s comments, a Muslim member of the Bosnian state presidency, Sulejman Tihic, issued a statement in which he demanded the Bosnian chief prosecutor at the War Crimes Chamber, Marinko Jurcevic, lift the embargo on making the list public. Tihic pointed out in his statement that “hiding the names of perpetrators who committed genocide against the Bosnian Muslim population in Srebrenica…is a direct violation of the Dayton peace agreement". But Jurcevic - whose office is looking into allegations made in the report - remained adamant that "publishing this information might jeopardize the ongoing investigations”.“Some of those listed, who are currently under investigation, might flee," his office stated on July 20.But on August 24, the Sarajevo-based Oslobodjenje daily published the first 69 names of more than 800 they plan to release over the next few days. They said they got the list “from a source at the Bosnian prosecutor’s office”. Ever since this report was compiled, there had been pressure by Muslim politicians, media and non-governmental organizations to make all the names listed in the report public, especially those still employed by the state. Del Ponte even took the view that “this would be helpful” in other war crimes investigations. Sadik Pazarac, from the Helsinki Committee for Human Rights in Bijeljina, told IWPR, “This should have been done long ago. People should know who these persons are - and if they were involved in this crime, they should be held responsible, instead of pretending that nothing has ever happened.”

Congolese Warlord is First to be Criminally Charged by New International Criminal Court

2006-08-29T12:04:00.000-07:00

On August 28, the permanent International Criminal Court in The Hague handed down charges against Thomas Lubanga for enlisting child soldiers in the Iruri district of the Democratic Rebublic of Congo. Created in 2002 by the Rome Statute, these are the first criminal charges issued by the ICC at the request of the Prosecutor, Luis Moreno Ocampo, an Argentinian. They drew immediate criticism from the Human Rights community for not going far enough and charging Lubanga additionally for murder, torture and rape. The ICC responded that the child soldier conscription charges were first because the evidence was readily available.

Nine United Nations peacekeepers were murdered in February 2005 while attempting to stabilize the chaotic situation in the mineral-rich Ituri district. Congolese officials sent Lubanga to The Hague in March 2005, making him the ICC's first prisoner. The ICC's press office encapsulates the charges and procedures more fully:

Thomas Lubanga Dyilo, a former leader of a militia group at war in the North Eastern Ituri district of the Democratic Republic of the Congo (DRC), has been formally charged by the Prosecutor of the International Criminal Court with enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. A confirmation hearing has been set for 28 September. If the charges are confirmed at this hearing, Lubanga’s case will be the first trial before the International Criminal Court and the first time that an individual has been brought before an international court solely on the basis of these crimes.
Thomas Lubanga Dyilo is the President of the Union des Patriotes Congolais (UPC) and was the Commander-in-Chief of its former military wing, the Forces Patriotiques pour la Libération du Congo (FPLC) at the times when the crimes were committed. From 1 July 2002, when the Court’s jurisdiction began, and throughout 2003, FPLC commanders enlisted and forcibly recruited children and used them to participate actively in hostilities in the Ituri district. FPLC forces systematically abducted both boys and girls, and forcibly incorporated them into the ranks of the FPLC.
In his leadership positions, Thomas Lubanga Dyilo played an overall coordinating role in the UPC/FPLC’s policy to recruit and enlist child soldiers and he provided the organisational, infrastructural and logistical framework for its implementation. The information collected shows that Thomas Lubanga Dyilo’s activities were supported by foreign nationals, however the evidence is currently not enough to present a case against them. Thomas Lubanga Dyilo is considered by the Office of the Prosecutor to be among those who bear the greatest responsibility for these crimes.
At the confirmation hearing, Thomas Lubango Dyilo and his counsel M. Jean Flamme will have the opportunity to challenge and contest the charges brought against him.
At the close of the hearing, if the Pre-Trial Chamber determines that there is sufficient evidence to support the charges, the case of Thomas Lubanga Dyilo will proceed to trial. The maximum sentence that an accused person can face before the ICC is life imprisonment.
Chief Prosecutor Luis Moreno-Ocampo said:
“This is just the first step in the case. As Prosecutors we have the responsibility to prove the case, we believe our evidence is strong. However, until his guilt is established, Thomas Lubanga Dyilo is presumed innocent.”
“Regardless of the outcome of the proceedings, this case represents a huge step in the struggle against these serious crimes against children. Child conscription destroys the lives and futures of thousands of children around the world. This case will contribute to exposing the problem and in stopping these criminal practices.”
In his latest report on this issue, the United Nations Secretary General has reported that from January 2004 to May 2006, more than 18,000 children were released from forces and armed groups in the DRC. Thousands more have escaped on their own. Yet children remain vulnerable to new threats, including re-recruitment, and girls especially have found it extremely difficult to reintegrate into civilian life.
The case against Thomas Lubanga Dyilo represents almost two years of intense, on-the-ground investigation by the Office of the Prosecutor. Scores of missions to the DRC produced multiple statements. At the confirmation hearing, the Office of the Prosecutor will unveil for the first time evidence showing that Thomas Lubanga Dyilo’s organization enlisted and forcibly recruited children into the ranks of their armed militia, and that Thomas Lubanga Dyilo was instrumental in orchestrating these activities. The Court has 60 days from the last day of the hearing to decide whether there is sufficient evidence to warrant a trial.

Saddam's Genocide Trial Gets Underway...

2006-08-21T08:33:00.000-07:00

The trial of Saddam Hussein for the genocide of the Iraqi Kurds during what has become known as the "Anfal Campaigns" got underway today in Baghdad before the Iraqi High Court. This is Saddam's second in a series of seven trials for atrocities committed by his regime. The Anfal campaigns were overseen by his cousin, Ali Hassan al-Majid, better known as Chemical Ali - for his prediliction toward use of chemical weapons to wipe out his opponents. The eradication of Iraq's Kurdish population occurred between 1987-88 and killed upwards of 182,000 people. BBC reports that the systematic gassing of the town of Halabja in 1988, which killed 5,000 people, will be dealt with in a separate trial and will not be part of these proceedings.

Characteristically, Saddam refused to enter a plea on the opening day of court, and the judge entered a not guilty plea on his behalf. This is the second time that a former head of state has been formally tried for genocide. Heads of government, such as Rwanda's Jean Kambanda, have been succesfully tried for the crime, and Yugoslavia's Slobodan Milosevic was defending himself from charges stemming from the Srebrenica genocide when he died in custody. However, the Iraqi High Court still suffers from questions of legitimacy connected to its formation and its chaotic conduct.

Another blow to the court's legitimacy would come if Saddam is put to death before his trials are completed. A U.S. official announced last week that Saddam could be tried posthumously if he were executed before the other trials were completed. Trying people in absentia is anacronistic to a modern sense of justice, and belongs more to the Soviet era than to the 21st century. Here is the report on that issue from AFP:

BAGHDAD (AFP) - Ousted Iraqi leader Saddam Hussein could be tried posthumously for genocide if an Iraqi court decides to execute him for a separate accusation of mass murder.

According to a US legal expert who briefed reporters anonymously ahead of Saddam's trial for his alleged role in the Anfal campaign against Iraq's Kurdish minority, the case could be delayed by a verdict in the first case.

The Anfal trial is to begin on Monday, but a verdict in the other case is expected on October 16, when Iraqi judges will rule on whether the former strongman ordered the illegal execution of 148 Shiite villagers.

If found guilty, Saddam could face execution or life imprisonment, in which case he would have an automatic right to appeal.

"If the tribunal decides on the appeal during the Anfal trial and if it upholds the death penalty the sentence has to be carried out within 30 days of the decision on the appeal," the US official said.

"Which means theoretically, that if Saddam is given the death penalty and if everything falls in place, he can be executed and the Anfal trial can carry on posthumously," he added.

Iraqi President Jalal Talabani, himself a Kurd, said earlier this year that Saddam should be tried for all his crimes before any of the verdicts are implemented and any death penalty could prove controversial.

Sense of Worry Surrounds New Cambodian Tribunal

2006-08-15T09:44:00.000-07:00

A general sense of worry about the new joint U.N./Cambodian tribunal, recently established to try members of the former Khmer Rouge regime for atrocities carried out in the 1970's, permeates Pnomh Penh, Washington, and New York as the court begins to function. Few believe that it is adequately staffed with qualified personnel to tackle the tough issues before it. Yet, hope continues to be present, and animates this process, flawed as it may turn out to be, just as the judges are donning their robes and the prosecutors opening their investigations. As U.S. Ambassador to Cambodia, Joseph Mussomeli, noted in a speech at the end of July:

"Cambodia’s brokenness is more than just political and economic. It is also psychological and spiritual. All the flaws of modern Cambodia -- from trafficking in persons to the drug trade and from the plundering of its natural and cultural resources to the rampant corruption that pervades all levels of the government – all have been exacerbated by our failure to bring the leaders of the Khmer Rouge to justice. The culture of impunity that we see throughout Cambodia today is rooted in the belief among its people that no crime is so great that it must be punished, and that whatever any Cambodian does is fine because it cannot possibly be worse than what the Khmer Rouge did –- and got away with doing.
There will be severe limitations on how far Cambodia can progress and reform until some degree of justice is rendered. But the killers are growing old. In another decade they will likely all have died quiet, peaceful deaths. . . . Death, which had already stolen from so many Cambodians their lives and their happiness, has now stolen from them a chance for justice."

The International Herald Tribune reports some of the challenges that lay ahead for the tribunal:

Cambodia Court Faces High Hurdles

International Herald Tribune

by Seth Mydans

August 4, 2006

More than 27 years after the mass killings ended and after a decade of wrangling between Cambodia and the United Nations, formal proceedings have begun against the surviving leaders of the Khmer Rouge regime. On July 10, the prosecutor's office began its investigation of the men accused of masterminding a killing regime that took 1.7 million lives from 1975 to 1979 through torture, execution, overwork, starvation and disease. The first shipment of 383,149 pages of documentary evidence, contained on 524 reels of microfilm, was delivered to the prosecutors on July 17.

But even if a loose timetable holds, it will be a year and a half before the first defendant is brought before a mixed Cambodian-foreign tribunal. Because of limits on time, space and funding, only a small handful are likely to face trial for complicity in the deaths of as much as one-fourth of the population. The United Nations has given the tribunal a budget of $56.3 million for a three-year process that began with the investigation, which many experts say may have to be extended.

It is also racing against mortality as aging suspects die off and those who remain grow sicker and more frail. The Khmer Rouge leader, Pol Pot, died in 1998. Another leading figure, the military commander Ta Mok, died July 20. Of the four most prominent names that remain, three are in their late 70s and report having medical problems. Only one, Kaing Khek Iev, also known as Duch, the commander of the torture chamber Tuol Sleng, is in custody. He has become an evangelical Christian. An earlier interview suggested that he may be as enthusiastic now about repentance as he was then about slaughter.

The decades-long gap between the crimes and the trial, arising from various political and geopolitical agendas, will probably dull the memories of defendants and witnesses alike, experts said. The trial was delayed throughout the 1980s when the United States and other nations insisted on recognizing the jungle-based Khmer Rouge guerrillas rather than the Vietnamese-backed government that ousted them in 1979.

In recent years, Prime Minister Hun Sen has raised obstacles, apparently concerned that the unpredictable process could weaken his firm grip on power. Whether true or not, courtroom testimony could implicate members of the current government, several of whom were ranking Khmer Rouge cadres themselves. One of these is Hun Sen, who was a middle-ranking field officer but who scholars say was not involved in serious abuses. The tribunal was established by an agreement between Cambodia and the United Nations in 2003 that grew out of a Cambodian request in 1997 for assistance. It has been controversial from the beginning, with Cambodia insisting that its shaky legal system form the basis for the complex tribunal.

Critics doubt the quality and independence of the 17 Cambodian judges and prosecutors, who they say are poorly trained and subject to political manipulation. An analysis by the human rights organization Licadho asserted that seven of the appointees "are clearly unsuited to the task" because of their records in politically manipulated trials. Four other men named to be judges have never served as judges before, it said.

Serbs' Demand of Ethnic Justice from ICTY Misplaced

2006-08-09T12:54:00.000-07:00

The Serbian government this week demanded that the International Criminal Tribunal for the Former Yugoslavia arrest and prosecute former Bosnian commander Atif Dudakovic after an airing on Serb television of a grainy video depicting Dudakovic ordering a Serb town to be burned during the Bosnian civil war. The amateur video was shot during the recapture of parts of Bosnia from Serb forces by Croat and Bosnian soldiers. Serbia considers the ICTY to be biased against it and points to the overwhelming number of cases against ethnic Serbs as evidence of that bias.

In fact, of the 125 cases/indictments that log an ethnic identify for the indictee, 85 are against Serbs or Bosnian Serbs; 18 are against Croats or Bosnian Croats; 9 are against Albanians or Kosovar Albanians; 8 are against Bosnians (Bosniaks & Bosnian Muslims); 3 are against Montenegrins; 2 are against Macedonians. Thus, the Serbs may have a point, but it must not be overlooked that most of the war crimes, crimes against humanity, and the genocide of Srebrenica were perpetrated by ethnic Serbs - and those are the precise crimes which form the basis of the ICTY's subject matter jurisdiction.

The more likely fear for Serbia is that when the ICTY winds up business during the 2008-2010 draw down period and transfers remaining cases to the new Bosnian War Crimes chamber in Sarajevo, no Bosnians at all will be prosecuted by a Bosnian court. Consequently, Serbia may see this as their last best chance to spread the blame for the atrocities that unfolded in the early 1990's at the instigation of their erstwhile leader, Slobodan Milosevic.

Cambodian Khmer Rouge Genocide Tribunal Under Way

2006-07-25T13:03:00.000-07:00

The joint U.N./Cambodian Khmer Rouge Genocide Tibunal is now underway, with 27 of its thirty judges sworn and prosecutors co-led by Canadian Robert Petit and Cambodian Chea Leang collecting evidence against surviving members of the Khmer Rouge regime that killed 1.5 million people during its bloody 1975-79 reign, which ended only with an invasion by Vietnamese troops. This is the second hybrid court that the U.N. has rolled out in the past few years - the first was the Special Court for Sierra Leone. These courts use a blend of local and international judges and prosecutors and are situated within the countries where the atrocities occurred, constrasting starkly with the internationalized models such as the ICTY and ICTR or the wholly domestic models such as the Iraqi tribunal now trying Saddam and his henchmen. It remains to be seen whether the new hybrid model of trying former tyrants for crimes against humanity will yield better results. Faced with its first tough case against former Liberian warlord Charles Taylor, the Sierra Leonean court opted to transfer his case to The Hague for trial. And the Cambodian court is already facing unique challenges. Khieu Samphan, the former Khmer Rouge head of state (though only nominally so under the thumb of Pol Pot), fled his residence in mid-July and scores of potential witnesses have gone into hiding for fear of retribution in the face of what they feel are inadequate protection measures. Although juries as such have no role in international law or civil law jurisidictions, the "jury" is still out on how efficacious such hybrid tribunals will be - one hopes the verdict is favorable.

Here is the list of judges, confirmed by the King of Cambodia, Norodom Sihamoni:

Judges in the Trial Chamber: Mr. Nil Nonn Mr. Thou Mony Mr. Ya Sokhan Ms. Silvia Cartwright (New Zealand) Mr. Jean-Marc Lavergne (France) (Reserve) Mr. You Ottara Ms. Claudia Fenz (Austria)

Judges in the Supreme Court Chamber: H.E. Kong Srim Mr. Som Sereyvuth Mr. Sin Rith Mr. Ya Narin Mr. Motoo Noguchi (Japan) Ms. Agnieszka Klonowiecka-Milart (Poland) Mr. Chandra Nihal Jayasinghe (Sri Lanka) (Reserve) Mr. Mong Monichariya Mr. Martin Karopkin (USA)

Co-Investigating Judges: Mr. You Bun Leng Marcel Lemonde (France) (Reserve) Mr. Thong Ol International (To be announced)

Pre-Trial Chamber: H.E. Prak Kimsan H.E. Ney Thol Mr. Hout Vuthy Mr. Rowan Downing (Australia) Ms. Katinka Lahuis (Netherlands) (Reserve) Mr. Pen Pichsaly International - none

Serbs Move Against Mladic - Finally...

2006-07-16T19:50:00.000-07:00

Serbia has moved against a group of nationalist co-conspirators who have been hiding wanted war criminal Radko Mladic for about a decade. The Serb government, largely unresponsive to repeated requests to turn over such perpetrators to international tribunals, has responded in this case only because the European Union (E.U.) has taken the drastic step of breaking off economic talks with financially-strapped government in Belgrade.

Mladic was the Bosnian Serb general in command of soldiers during the Bosnian civil war of the early '90's who committed mass atrocities, including the bloody genocide of thousands of Muslims at Srebrenica in 1995. Indicted by the War Crimes Tribunal for the Former Yugoslavia in The Hague, Mladic was never captured. He fled to Serbia along with others wanted for crimes against humanity after the war when U.S. and NATO military commanders refused to collar indictees in occupied Bosnia, claiming that their soldiers were not police officers adequately equipped to carry out supboneas and arrest warrants. Although allied soldiers did a fine job of arresting Nazi and Japanese Imperial leaders after World War II, commanders in occupied Bosnia did not feel they had the wherewithall for such a task in modern times.

Under Slobodan Milosevic, Serbia sheltered these criminals, refusing to cooperate with the West on principle. Under Milosevic's successor regimes, notably that of fellow-nationalist Vojislav Kostunica, noises of more cooperation were heard, but Mladic remained at large. Now, however, the E.U. has suspended talks with Serbia over associating with the community until Mladic is handed over. Under such economic pressure and the threat of Serbia remaining isolated as the only country in the Balkans without a growing E.U. relationship, Belgrade has finally decided to move on Mladic. That Brussels was prepared to use this leverage to bring such a war criminal to justice is lauditory. The E.U. historically only threatened non-association with countries in exchange for strengthening banking regulations, environmental laws, human rights, or eliminating the death penalty - at it forced Turkey to do recently.

Here is the story from AP:

Criminal charges were filed Friday against nine people accused of helping U.N. war crimes suspect Ratko Mladic evade justice, a prosecutor said. The nine were indicted for "hiding and helping hide Mladic although they knew that he was charged" with war crimes, said the prosecutor's statement, carried by the Beta news agency. The statement also said that any court trying the nine should take into account the "social peril that resulted from the criminal act," and the consequences to Serbia's international position. Belgrade's failure to capture Mladic - at large since 1995 despite a genocide indictment against him by a U.N. court - has led to suspension of its pre-entry talks with the European Union. The suspension in May dealt a major blow to Serbia's efforts at pro-Western reform and international integration following years of pariah status under former President Slobodan Milosevic.

Belgrade has maintained it has been unable to locate Mladic, despite claims by the tribunal in The Hague, Netherlands, that the general is hiding here under protection from nationalist hardliners. Mladic was charged with genocide for allegedly orchestrating the 1995 massacre of 8,000 Muslims in Srebrenica, and for other war crimes of Bosnia's 1992-95 war. The charges against his alleged helpers in Serbia are apparently part of stepped up efforts to find Mladic, but also to persuade EU officials that the government is doing its best to hunt him down. Prime Minister Vojislav Kostunica will travel next week to Brussels to present an "action plan" for Mladic's arrest that reportedly would include help from the EU and the United States. Kostunica has criticized the EU decision to suspend pre-membership talks, saying it played into hands of the nationalists.

Saddam's Defense Misplaces Hope in ICC

2006-07-07T14:10:00.000-07:00

Saddam Hussein's defense counsel submitted an application for his case to be removed from Baghdad to the new International Criminal Court in The Hague. While the Iraqi High Court trying Saddam has myriad problems, legitimacy being one of them, Saddam's attorneys have misplaced their hope in the ICC. According to the ICC's organic statute, it would not have jurisdiction over the underlying crimes that Saddam committeed; consequently, it could not receive the cases against him. The ICC's jurisdiction is only prospective from July 2002 onward, not retroactive, over crimes against humanity, genocide and war crimes. The offenses for which Saddam is being tried all occurred prior to July 2002. Moreover, the Security Council can block the ICC's assertion of jurisdiction at any time. While it is true, technical violations of the Geneva Conventions have occurred in the treatment of Saddam after capture, and the current trial process is chaotic and at times appears to be unraveling, the ICC's jurisdiction was meant to be invoked over mass atrocities, not single instances of trial misconduct. Thus, this new legal maneuver is very unlikely to succeed.

Here is the full report from AFP:

The 11 lawyers for Saddam Hussein have applied to the International Criminal Court (ICC) to investigate what they claim are violations of law to which the former Iraqi leader has been subjected, one of them said. An application to the prosecutor assigned to the Hague-based tribunal said Saddam was "a prisoner of war within the meaning of the Geneva Convention and thus came under ICC jurisdiction as applied to cases of war crimes, crimes against humanity, genocide and aggression."

"All the breaches and aberrations constitute an infraction of the Geneva Convention and can therefore be considered war crimes," lawyer Emmanuel Ludot told AFP. Ludot is one of 11 lawyers for the former Iraqi leader, who is currently on trial before a Baghdad tribunal. The court application by the lawyers, a French copy of which has been obtained by AFP, said the Iraqi tribunal had no legal basis, in terms of international conventions such Geneva, to be able to try Saddam. "Defence witnesses are threatened, intimidated and imprisoned," it said. "Those attorneys still alive are not able to speak out," it continued in a reference to the deaths of three of Saddam's defence lawyers since the Baghdad trial began in October 2005.

The prosecution has called for the death penalty for Saddam and such a sentence of death will doubtless be passed, in violation of international conventions such as the 1966 New York civic rights convention, the document continued. "Saddam Hussein has been subjected to degrading treatment, including photographs taken of him unclothed," it said. He was unable to conduct confidential conversations with his lawyers and his family had been threatened and denied access to him. Saddam and seven co-defendants are accused of the massacre of 148 people in the village of Dujail following an assassination attempt there against Saddam in 1982. They face execution by hanging if convicted.

Former US attorney general Ramsey Clark, one of Saddam's lawyers, said last month the former dictator could not receive a fair trial in Iraq unless his lawyers received US protection. "It's impossible to have a fair trial when you don't protect all the participants in the trial -- protection that only the United States can provide under the circumstances," Clark told a news conference in Washington. Clark said the lawyers should be given bodyguards and their families moved out of Iraq. He said that without such protection, the former Iraqi leader would be subjected to "a show trial, a corruption of justice." Clark served as attorney general under US president Lyndon Johnson. He has defended a number of controversial clients, including former Yugoslav president Slobodan Milosevic.

Sudan's Special Criminal Court Unmasked as Attempt to Escape ICC Jurisdiction

2006-06-23T08:36:00.000-07:00

After the International Criminal Court in The Hague asserted jurisdiction over the unfolding humanitarian disaster in Darfur, Sudan upon a referral by the U.N. Security Council that was allowed by the U.S., President al-Bashir's government formed a special court in Darfur to probe into alleged war crimes. Human Rights Watch confirmed in a report released this month what many had suspected all along - that Sudan sought to undermine the ICC's assertion of jurisdiction by creating its own special court because, according to the ICC's operative statute, the court cannot exercise jurisdiction over a situation that is already being handled by a local national court within that country unless the government has acquiesced or the ICC finds that the national court's handling of the situation is not being undertaken in good faith. HWR found that Sudan's Special Court had not demonstrated any genuine will to try those accused of atrocities and "Statements made by senior Sudanese government officials made clear that one goal for establishing the (court) was to divest the ICC (International Criminal Court) of jurisdiction."

Many thousands have perished and over 2 million forced to flee their homes in Darfur as the government-backed militia's have ravaged the land and people in what the United States has called a genocide by the Arab government against the largely black population in the region.

The government in Khartoum denies the HWR charges and signed a peace deal in May undertaking to disarm the militia by the end of October - which is again, suspect. A report from the ICC to the Security Council on its progress in Sudan is scheduled for this month, and is expected to contain similar findings (no genuine willingness on the part of the government to make the Sudan Special Court fair and fully operational - it's only undertaken 13 cases and has failed to press charges for any single major atrocity in Darfur).

Here is the link to the Human Rights Watch report on Sudan's Special Criminal Court:

http://hrw.org/backgrounder/ij/sudan0606/

U.S. Defends Saddam's Continuing Trial

2006-06-22T14:12:00.000-07:00

The U.S. is clinging to calling the trial of Saddam Hussein a legitimate judicial exercise, despite the most recent in a string of assassinations of his defense team and a sharply curtailed presentation of his defense. Saddam's trial certainly does not reflect standards or procedures that would accrue in an international tribunal. Here is the AFP report out of Washington:

The United States said that the trial of deposed Iraqi dictator Saddam Hussein', begun in October 2005, "remains a viable, legitimate, credible and important process," State Department deputy spokesman Adam Ereli said. "There are obviously those who want to undermine it ... because they want to attack and undermine the rule of law and the values of a democratic, pluralistic society," Ereli told reporters at a press briefing. "So they go after lawyers, they go after judges, they go after prosecutors, they go after witnesses," he said. "But I would say that there is a strong commitment, both materially, politically and in terms of security, to ensure the integrity and security of those involved in this process, because there is a recognition of its importance, its value and its legacy for Iraq he said.

Khamis al-Obeidi was snatched from his home in the predominantly Sunni Arab district of Adhamiyha early Wednesday by about 20 men, a security official and his wife said. His body was found a few hours later dumped at a nearby roundabout. The 49-year-old Sunni Arab is the third lawyer for Saddam and seven co-defendants murdered since their trial for crimes against humanity over the killing of Shiite villagers opened in October. A US official close to the court said Obeidi had declined an offer to stay inside the fortress-like Green Zone, where the trial is taking place. Obeidi's murder came after chief prosecutor Jaafar al-Mussawi on Monday asked for the death penalty for the former president, his half-brother Barzan al-Tikriti and former vice president Taha Yassin Ramadan.

Taylor Flown to Hague

2006-06-21T11:37:00.000-07:00

This just in from AFP, Charles Taylor was flown to The Hague on Tuesday to stand trial for his role in the Sierra Leonean civil war after a deal with struck with Britain to house him if convicted. He will be tried at ICC headquarters by SCSL judges.

This raises the lingering question of whether it's better to try perpetrators of heinous crimes in the countries where those crimes occurred or to ship them to international tribunals. The Nurmberg and Tokyo trials kept the suspects in country, the Yugoslav and Rwandan tribunals took them out, and the Sierra Leonean and Cambodian courts are putting them back in again - with the exception of Taylor. While there have been abberations, like Ghaddafi's intelligence agents standing trial in The Hague before Scottish judges for the bombing of Pam Am 103, the world then decided to keep trials centralized before the ICC in The Netherlands. Of course, Saddam and his gang are being tried in country before the Iraqi High Tribunal. Thus, no consensus has emerged as to which is the better model.

Here's the gist of the AFP report:

Former Liberian president Charles Taylor was flown from Freetown on Tuesday to The Netherlands where he will stand trial for war crimes allegedly committed during Sierra Leone's brutal civil war, court and government officials told Agence France-Presse."He left at 9.35am [local time]," an official said after three helicopters were seen hovering around the United Nations-backed special court compound where Taylor has been held since March."I can confirm he was flown out this morning to The Hague," President Ahmed Tejan Kabbah's spokesperson Kanji Daramy told AFP in Dakar by telephone from Freetown."This follows the pronouncement by Britain that it will provide a prison for Mr Taylor should he be found guilty for crimes for which he stands accused," Daramy said.Taylor (58), once one of Africa's most-feared warlords, has been indicted by the special court on charges of crimes against humanity, war crimes and violations of international human rights.He is seen as the single most powerful figure behind a series of civil wars in Liberia and neighbouring Sierra Leone between 1989 and 2003, which left about 400 000 people dead.He is specifically accused of sponsoring and aiding rebel groups who perpetrated murder, sexual slavery, mutilation and conscription of child soldiers in Sierra Leone's civil war in exchange for a share in the lucrative diamond trade.The UN Security Council last week approved his transfer to The Netherlands, where he will be tried by a branch of the Sierra Leonean special court, which will sit in the facilities of the International Criminal Court.

And from Reuters:

The U.N. Security Council on Friday authorized the transfer of former Liberian leader Charles Taylor to The Hague to stand trial for war crimes in a special chamber of a Sierra Leone tribunal. Taylor, seen as the mastermind behind intertwined conflicts in Liberia and Sierra Leone, is being held in a prison cell guarded by Mongolian U.N. peacekeepers in Freetown, Sierra Leone.
He faces 11 charges of war crimes and crimes against humanity for backing Sierra Leone's Revolutionary United Front rebels, who sent drugged child soldiers into battle and mutilated and raped civilians during the conflict.
A resolution adopted unanimously by the 15-nation U.N. Security Council asked Secretary-General Kofi Annan to help with the legal and practical arrangements required to send Taylor to the Netherlands. Britain drafted the resolution after promising on Thursday to jail Taylor, one of Africa's most feared warlords, if he was found guilty, paving the way for the trial to be moved.
The Netherlands had agreed to admit Taylor for the trial only if a place were found, in advance, to take him afterward. The International Criminal Court, also based in The Hague, has agreed to lend the U.N.-backed tribunal in Sierra Leone a cell and a courtroom during the trial.

Milosevic's Death Does Not Undermine Importance of His Trial

2006-03-14T12:18:00.000-08:00

[From Michael Kelly, Creighton Law School]

The sudden death of Slobodan Milosevic is regrettable in the sense that the judicial process he faced for the crimes he committed cannot be completed. The fact that he faced such a process at all is, however, of surpassing importance.

Milosevic was charged with war crimes, crimes against humanity and genocide, carried out while his regime was in power during the catastrophic break-up of Yugoslavia in the 1990's. The butchery that ensued engulfed Bosnia, Croatia, and Serbia (including tiny Kosovo). Milosevic hovered above all this, directing the bloodshed and eventually incurring the wrath of NATO, which deployed against Serb forces on its first combat mission since creation of the organization in 1949.

In a preview of his natural ability to throw his opponents off, in 1999 Milosevic actually sued the NATO countries in their individual capacities at the International Court of Justice for illegal use of force against his Serbia and Montenegro, including (ironically) a charge for genocide. Requesting the Court to issue an injunction to stop NATO's bombing of Serbia, Milosevic pleaded:

"The Federal Republic of Yugoslavia is exposed to acts of use of force by which the Kingdom of Belgium has violated its international obligations not to resort to threat or use of force against another State, not to intervene in the internal affairs of another State and not to violate the sovereignty of another State, to protect civilians and civilian objects in time of war, to protect the environment, as well as those relating to free navigation on international rivers, to the fundamental rights and liberties of the individual, to the ban on the use of prohibited weapons and on deliberate infliction on ethnic groups conditions of life calculated to bring about physical destruction of the group. Both military and civilian targets came under attack in the air strikes launched against the Federal Republic of Yugoslavia.... [O]ver 10 000 attacks were made against the territory of the Federal Republic of Yugoslavia. In air strikes were used: 806 warplanes (of which over 530 combat planes) and 206 helicopters stationed in 30 air-bases (situated in 5 states) and aboard 6 warships in the Adriatic Sea. More than 2,500 cruise missiles were launched and over 7,000 tons of explosives were dropped. About 1000 civilians, including 19 children, were killed and more than 4,500 sustained serious injuries...."

The Court declined such an injunction, and the suits eventually sputtered out last year. By that time, Milosevic was on trial himself at The Hague before the International Criminal Tribunal for the Former Yugoslavia. No other head of state had been tried for such crimes in modern history. The Kaiser escaped trial after the First World War by seeking refuge in the Netherlands. Hitler killed himself at the conclusion of the Second World War, leaving only his Number 2 (Hermann Goering) and his henchmen to face justice - which Goering cheated by committing suicide prior to hanging. Italy's Benito Mussolini was mobbed and shot. Japan's Hedeki Tojo faced trial and was put to death (after an unsuccessful suicide attempt), but he was the head of government - the Emperor, as head of state, continued on his throne. The next head of government to face justice was Jean Kambada of Rwanda in 1998, and the next attempt at bringing a head of state to justice was the unsuccessful extradition request lodged by Spain with Britain to try Chilean dictator Augusto Pinochet in 1999.

Consequently, the fact alone of Milosevic's trial is vastly more important than the ultimate outcome of that trial - acquittal, guilt, or, in this case, premature death. That a head of state was forced to face justice for his actions is the precedent that the world needs to take away from all this. One may quibble with the conduct of the trial, its undue length, its manic focus on due process, its treatment of witnesses, its leeway offered the defense, or even its delayed broadcast back to Serbia and over the Internet - all of which have been roundly criticized by many quarters. But, again, it is the FACT of the trial at all which hearkens a true breach in the wall of sovereign immunity that previously shielded despots around the world, encouraging them to act with impunity against their own people and those in neighboring states.

Because of Milosevic's trial, uncompleted as it now is, that sense of impunity should waver in the minds of those who contemplate genocide, war crimes, and crimes against humanity. Milosevic's trial laid the legal groundwork for the new Special Court for Sierra Leone to indict Charles Taylor of Liberia, and issue its decision in the Taylor case explaining his complete loss of immunity from prosecution. The activation of international criminal justice is becoming the rule rather than the exception, with another new court in Cambodia under development, and the permanent International Criminal Court now investigating crimes in multiple African countries, including the still unfolding genocide in Sudan.

Thus, while Milosevic's legacy in the Balkans is a bloody one, and his legacy at the Tribunal itself is one of subterfuge, recrimination, delay, and obstreperousness (providing other courts with lessons from which to learn), his legacy to the future of international criminal law via his trial at The Hague is uncharacteristically one of hope. Hope that brutal dictators receive the message loud and clear that they eventually will be brought to justice for their atrocities if the international community can get its hands on them. And if they receive that message, and it stays their hand from even one genocide or war crime, sparing innocent people, then progress has been made. The years of legal back-and-forth, reams of paperwork, millions of dollars, piles of evidence, and endless amounts of frustration at the trial of Slobodan Milosevic was worth it. That he is now dead is of much less importance.