McNabb in the News

Senior Principal Douglas McNabb is quoted in the San Diego Union-Tribune in a story about Randy “Duke” Cunningham.

"If the other four gentlemen are indicted, the government is going to call on Mr. Cunningham to testify against one or more of these people, any one that goes to trial," said Douglas McNabb, a federal criminal defense lawyer with offices in Texas and Washington, D.C.^[1]

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[1] Onell R. Soto, Bribe Probe Likely Will Snare Others, Sand Diego Union-Tribune, Dec. 2, 2005.

Saddam Hussein—Delays, Security, and International Credibility Concerns

Today, the Iraqi judge presiding over the trial of Saddam Hussein granted an additional one-week delay to permit time for new defense counsel to prepare, and to take additional steps to ensure the security of judges, attorneys, and witnesses associated with these proceedings.^[1] The court met briefly on Monday after a five-week recess following the murder of a defense attorney for one of Hussein’s co‑defendants. The former Iraqi dictator has been charged with crimes against humanity for his role in a July 8, 1982, massacre in Dujail, Iraq, in which it is alleged that his Ba’athist regime tortured and killed over 140 people.^[2]

Since the beginning of the trial on October 19, 2005, proceedings have been delayed several times because of security issues—once after the October 20 murder of a defense attorney for one of Hussein’s co-defendants, and again after the November 8 murder of a second defense attorney and injury of a third. An additional four people associated with the Iraqi High Tribunal proceedings have been murdered this year, including a judge and one potential witness.^[3] A boycott by defense attorneys was ended last week when the Tribunal agreed to pay for bodyguards of the attorneys’ choosing.^[4] The court building is located in Baghdad inside the heavily protected U.S. "Green Zone."

To counter attacks from critics on the High Tribunal’s legitimacy, the court approved the additions of former U.S. Attorney General Ramsey Clark and Najib al-Nueimi, a former Qatari justice minister, to replace the murdered defense attorneys as well as to enhance the trial’s international credibility.^[5] In addition, the sitting Iraqi judges have received training from U.S. experts in international law, among them Marc Vlasic, a former prosecution attorney in the trial of former Yugoslav President Slobodan Milosevic.^[6] The Tribunal has assured its critics that it will adhere to international criminal law standards.

The Iraqi High Tribunal was established in 2003 by the Iraqi Governing Council acting under powers delegated to it by the occupation‑backed Coalition Provisional Authority.^[7] Although it is technically a national court, the Tribunal claims jurisdiction over conduct criminalized under both Iraqi law and international criminal law.^[8]

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[1] American Forces Press Service, Judge Delays Saddam Hussein Trial Again, December 1, 2005, available here.
[2] Id.
[3] Voice of America Press, Security Main Concern in Saddam Hussein Trial, November 30, 2005, available here.
[4] The Journal Gazette, Saddam Berates Judge, U.S., November 29, 2005, available here.
[5] See American Forces Press Service, December 1, 2005, available here.
[6] See Voice of America Press, November 30, 2005, available here.
[7] Guardian Unlimited, Comment: Trying Saddam, November 28, 2005, available here. The legal basis for this tribunal has been controversial from the beginning. The new Iraqi Transitional National Assembly recently amended and integrated the Tribunal’s Statute into the Iraqi judicial system as part of an ongoing process of legitimizing the proceedings against Saddam Hussein and his co-defendants.
[8] Id.

ICTY—Trial Chamber Acquits Limaj, Musliu

The ICTY Trial Chamber today released two former members of the ethnic Albanian Kosovo Liberation Army (KLA) after acquitting them of all charges of crimes against humanity and war crimes.^[1] The charges stemmed from events that occurred in the Llapushnik/Lapusnik area of Kosovo and at the Llapushnik/Lapusnik prison camp in 1998.^[2]

A third co-defendant, Haradin Bala, was convicted of torture, cruel treatment, and murder and was sentenced to 13 years.^[3] This is the first judgment handed down by the Tribunal relating to crimes alleged to have been committed in Kosovo. We will report further on this judgment as related events unfold at the ICTY.

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[1] UN News Centre, UN Tribunal Releases Two Kosovo Fighters Found Not Guilty of War Crimes, December 1, 2005, available here.
[2] ICTY Press Release, Fatmir Limaj and Isak Musliu Acquitted—Haradin Bala Convicted, November 30, 2005, available here.
[3] Id.

ICC—4th Assembly of States Parties: Update

In Wednesday’s session of the Assembly of the States Parties to the International Criminal Court (ICC) in The Hague, Parties debated the use and administration of the Victims Trust Fund (VTF) as well as the proposal to cut 10% of the legal aid/training budget for 2006. States also attended an informal open hearing about prioritizing outreach and communication to local communities.^[1]

As discussed previously in this blog, the debate concerning the VTF concerns the timing of support to victims of crimes that are the target of ICC investigation or adjudication. On one hand, if persons identified and supported by the Court as “victims” of conduct that is the subject of the judicial process also appear before the Court as witnesses (presumably for the Prosecution), there may be an appearance of an unduly close relationship between the Court and the Prosecution. The fact that support is provided to victims’ assistance groups and not directly to individuals does not entirely remove the possibility of impropriety. On the other hand, if no assistance is allowed until the judicial process is complete and final, the effort may be too late to be effective.

Related to this issue, the Coalition for the International Criminal Court (CICC) and other NGOs have expressed concern for the impact of budget cuts to legal aid on both the legal resources available to witnesses (who are often victims of the alleged crimes) and as well as to the adequate defense of persons on trial before the ICC.^[2] Currently, the budgets for legal aid and for legal training are undifferentiated and can be used to support both defendants and witnesses. The CICC and other NGOs urge separate consideration of the needs of each group and more transparent accountability in the separate areas of legal aid and training.^[3] The priorities covered by this unified budget item are authorized in the Rome Statute, primarily Article 55 (Rights of Persons During an Investigation), Article 67 (Rights of the Accused), Article 68 (Protection of Victims and Witnesses and Their Participation in the Proceedings), and Article 79 (Trust Fund).^[4]

Finally, Assembly members had the opportunity to hear about community outreach efforts from representatives of the ICTY and the Special Court for Sierra Leone.^[5] NGOs watching the ICC investigations in Uganda and the Congo have been vocal about the need for the Assembly to address this priority in the context of the Court initiatives in their regions.^[6]

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[1] Daily summaries of Assembly events are posted by the Coalition for the International Criminal Court (CICC) on the CICC website here.
[2] CICC Comments on Organization and Resources of Legal Representation for Victims and Defendants at the ICC, November 2005, available here.
[3] CICC Commentary on the Report of the Committee on Budget and Finance, November 2005, available here.
[4] Other documents, including the ICC Rules and Procedures, relate these priorities to implementation methodologies.
[5] CICC Daily Summary, November 30, 2005, available here.
[6] Id.

McNabb in the News

Senior Principal Douglas C. McNabb has been quoted in a San Diego Tribune story^[1] about Congressman Randy “Duke” Cunningham’s guilty plea:

The plea agreement indicates that Cunningham already has begun talking, said Douglas McNabb ... who has represented public officials accused of corruption.

"What this says to me is that he decided pretty quickly that he wanted to cooperate," McNabb said. "This guy, in my view, has had multiple debriefings with the government and they have found him, in their view, to be very credible and very helpful. This case is not ending here."

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[1] Onell R. Soto, “Overwhelming Case” Forced Cunningham to Accept Deal, San Diego Union-Tribune, Nov. 30, 2005, available here.

EUFOR, Bosnia Arrest Suspected Karadzic Allies

Two Bosnian power brokers with ties to the Milosevic regime in the Former Yugoslavia were arrested Tuesday by EUFOR-supported Bosnian state police in Pale, an historic town in Eastern Sarajevo.^[1] The men, Mirko Sarovic and Milorad Govedarica, are suspected of economic crimes, including embezzlement from national banks, and are likely to be charged under state law for such conduct.

However, Sarovic is suspected of being part of a network that has been providing support to fugitives from the International Criminal Tribunal for the Former Yugoslavia (ICTY). Although Sarovic himself is not under indictment by the ICTY at this time, he was stripped of his position as vice president of the Bosnian Democratic Party (founded by ICTY fugitive Karadzic) and had his financial assets frozen after an accusation by Bosnia's top international administrator, British diplomat Paddy Ashdown, that he was embezzling money and using it to shield Karadzic and others from international authorities. ^[2] Radovan Karadzic was indicted for genocide, war crimes, and crimes against humanity by the ICTY in 2000 and has been the target of an aggressive search ever since.^[3]

With initial appearances in court and custody decisions expected for the two in the next 24-hours, it will be interesting to see if and how international law entities become involved. Now that they have been apprehended, they could become subject to ICTY jurisdiction for any of acts committed since 1991 that are in violation of the ICTY Statute, international humanitarian law, or the Geneva Conventions.^[4]

Alternatively, given the support provided by political peace-keeping forces of EUFOR and the political pressure already exerted this year on Bosnia-Herzogovina and the UN for cooperation in bringing fugitives like Karadzic and Mladic to the Tribunal, the pressure from the international community may be more political than legal.^[5]

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[1] FENA News, RS: Mirko Sarovic and Milorad Govedarica Arrested, November 29, 2005, available here. EUFOR is the UN-supported European Union Stabilization Force in Bosnia-Herzogovina. EUFOR is charged with overseeing compliance with the Dayton Peace Accord under a mandate that was recently extended to the end of 2006. For general information about EUFOR, see the website here.
[2] PRAVDA, Bosnian State Police Arrest Former Bosnian Serb President, November 29, 2005, available here. [3] The indictment for Radovan Karadzic is available from the ICTY website here.
[4] Jurisdiction of the ICTY is established in the ICTY Statute, Articles 1-10.
[5] See, e.g., President Meron’s remarks in Belgrade on November 11, 2005; Prosecutor Del Ponte’s speech to the Balkan Investigative Reporting Network (BIRN) Conference in Sarajevo on November 10, 2005; President Meron’s speech to the United Nations General Assembly on October 10, 2005, and other messages to the public on this theme by ICTY leadership.

ICTY—Milosevic and Prosecutor Agree that Trial Should Not Be Separated

This morning at the ICTY, the three-judge Trial Chamber sitting in the case against Slobodan Milosevic heard arguments from both sides on its proposal to sever the Kosovo indictment from the Bosnia and Croatia indictments against the former Yugoslav President and bring a portion of the trial proceedings to a quicker‑than‑anticipated close.^[1]

The Trial Chamber initiated the hearing in the “interests of justice,” given Milosevic’s ongoing health problems and the near conclusion of the defense case with regard to the Kosovo charges.^[2] At the recommendation of medical advisors, the Chamber reduced its schedule from five to three trial days per week in 2003. Last month, medical advisors found that Milosevic’s condition had not stabilized and recommended additional weeks of rest.^[3]

Milosevic argued that, rather than separate the trial, the Chamber should continue to grant breaks in the schedule as medically required, but that to sever the trial otherwise was “illogical and unlawful acrobatics.”^[4]

Prosecutor Geoffrey Nice argued that the events alleged in the three indictments are relevant to the pattern of criminal behavior and that the case should be decided as a whole. He also voiced the fear that rather than providing recuperation time for the defendant during deliberations, the trial might not resume or run to completion.^[5] It should be noted that the charge of genocide appears only in the Bosnia indictment.^[6]

Although the Chamber’s hearing order noted that, following the assignment of defense counsel, Milosevic “has been effectively conducting his case as a pro se accused,” Judge Patrick Robinson responded to the Prosecution’s suggestion that Milosevic make better use of assigned counsel by expressing frustration at what he perceived to be a poor use of counsel’s assistance, calling the defendant an “ingrate” and stating that, “[refusing assistance] does you no credit.”^[7] Meanwhile, at an international conference sponsored this month in Belgrade by the International Committee to Defend Slobodan Milosevic, supporters spoke out against the danger of using the defendant’s illness as an opportunity to try him in absentia.^[8]

If the Trial Chamber does choose to sever the indictments, it could render judgment by this summer.^[9] Trial on the remaining indictments would resume after that, with the first judgment on the record. It is unclear what impact severance of the indictments would have on the appeal process for this pro se defendant.

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[1] ICTY Press Release, Milosevic Case: Trial Chamber to Hear Submissions on Severance of Kosovo Indictment, November 22, 2005, available here.
[2] ICTY Trial Chamber, Scheduling Order for a Hearing, November 22, 2005, available here. The Chamber notes the loss of several months of trial time because of medical delays since 2002. It further notes that the Prosecution concluded its presentation of evidence on all three indictments in 2004 and that the Defense is 75% complete in its presentation of Kosovo-related evidence.
[3] CBC World Press, Prosecution and Milosevic Argue Against Separate Trials, November 29, 2005, available here.
[4] Id.
[5] Id.
[6] Slobodan Milosevic was indicted for war crimes, crimes against humanity, breaches of the Geneva Convention, and genocide under three separate indictments, each known by the areas in which the alleged acts took place: Bosnia, Croatia, and Kosovo. In February 2002, all three indictments were joined prior to the commencement of trial. Indictments are published on the ICTY website here.
[7] CBC World Press, Prosecution and Milosevic Argue Against Separate Trials, November 29, 2005, available here.
[8] Reported in Workers World, Belgrade Meeting Defends Milosevic, November 28, 2005, available here. Proceedings of the international conference are available here.
[9] Authority for the Trial Chamber to use severance in managing this trial is expressly given in the April 18, 2002 Appeals Chamber decision, Reasons For Decision On Prosecution Interlocutory Appeal From Refusal To Order Joinder, para. 26, available here. The relevant section states that, “Finally, if with the benefit of hindsight it becomes apparent to the Trial Chamber that the trial has developed in such a way as to become unmanageable. . .will still be open to the Trial Chamber at that stage to order a severance of the charges arising out of one or more of the three areas of the former Yugoslavia.”

ICC—Opening Session of the 4th Assembly of States Parties

In today’s opening session of the 4th annual meeting of the ICC Assembly of States Parties in The Hague, member states and observers (non-ratifying signatory states, non‑signatory states, NGOs, and others) debated how and when the ICC funds allocated for assisting victims of war crimes should be allocated and heard opening remarks from Prosecutor Luis Moreno‑Ocampo on the status of active investigations in Uganda, the Congo, and Darfur.^[1]

The Victims Trust Fund debate centers on the use and timing of support to persons harmed during the events under investigation by the Office of the Prosecutor.^[2] Britain, Canada and Australia argue that funds should be dispersed only after the alleged crimes have been proven and perpetrators convicted—thus avoiding the effect of conviction without the benefit of trial. On the other hand, human rights groups, France, Belgium, and some African nations urge that funds should address victims’ immediate human support needs rather than allowing lengthy legal process to delay much needed aid.^[3]

The nature of this debate vividly demonstrates the tension inherent in the Court’s status as both independent judicial body and active participant in international criminal law enforcement efforts. >

Also today, ICC Prosecutor Moreno‑Ocampo announced to the Assembly that he expects the first trials to be heard at the Court in 2006.^[4] In summarizing the investigation leading up to the issuance of arrest warrants for leaders of the Lords Resistance Army (LRA) in Uganda, the Prosecutor described the role of his office, and its legal and physical presence in regions under investigation, as “bringing a justice component to a comprehensive effort to achieve justice and reconciliation and bring an end to violence in northern Uganda.”^[5] He also called for the continued support of the United Nations and its Security Council, nation states, NGOs, and international criminal justice organizations in pursuing the cause of international criminal justice.

We will continue to monitor and report developments as this 4th Session of the ICC Assembly of States Parties meets throughout the week.

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[1] We have previously discussed the Assembly of States Parties here. Full text of Luis Moreno‑Ocampo’s speech is available in English here.
[2] The Rome Statute mandates that a portion of its budget is spent in support of an independently administered Victims Trust Fund. Funds may be spent on protection, psychological services, legal expenses associated with providing testimony, and reparations to victims of war crimes.
[3] International Criminal Court’s Prosecutor Foresees First Trials Next Year, Associated Press, November 28, 2005.
[4] See Luis Moreno-Ocampo’s report to the 4th Assembly, available here.
[5] Id. at page 3. We have previously discussed the LRA arrest warrants here.