International Crimes—Saddam Defense Attorney Speaks Out

The international crimes trial of Saddam Hussein is scheduled to resume this Sunday at the Iraqi High Criminal Court in Baghdad. This week, Saddam defense attorney and former U.S. attorney general Ramsey Clark had choice words about the trial and its possible outcomes. In an interview with Reuters news agency yesterday, Clark asserted that "[t]here are few facts that could greater inflame passions and divide irreconcilably the people of Iraq than a conviction and severe punishment, especially execution, of President Saddam Hussein."^[1]

Clark opined today that the trial process is only stirring up hatred between Iraq’s various communities by creating “sectarian passions that destroy rationality and reason and the search for truth"^[2]

Clark has walked out on the trial several times in protest over court bias, but apparently is returning to the courtroom this week and is prepared to counter the so‑called direct evidence that the prosecution argued tied Hussein to the executions of 148 Shia citizens. According to Clark, the documents offered into evidence support the defense argument that the government was observing a proper judicial process.^[3] Moreover, Saddam’s admission in open court that he is responsible for some of the events in question is far from an admission of criminal liability. According to Clark, "[h]e owes it as president that he should take responsibility."^[4]

In an oddly related story, the Associated Press is reporting that three‑fourths of Americans polled believe that Saddam Hussein is getting a fair trial in Baghdad.^[5] A remarkable 60% of Americans polled also believe that, if convicted, the former dictator should be executed.^[6] In contrast, only 30% or fewer of the citizens polled in Spain, Mexico, and South Korea believe that Saddam is getting a fair trial and that he should receive life in prison if convicted.^[7]

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[1] Suleiman al-Khalidi, INTERVIEW—Saddam Defence Says Trial Deepens Divisions, Reuters, Mar. 10, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Will Lester, Americans Urge Death if Saddam Convicted, Associated Press, Mar. 8, 2006.
[6] Id.
[7] Id.

Genocide—ICJ Update

Last month, we discussed the first‑ever international adjudication of collective responsibility for the crime of genocide at the International Court of Justice (ICJ or World Court). After the first ten days of trial, the plaintiff nation of Bosnia has put on its opening arguments and Serbia‑Montenegro takes the floor to argue against the allegations that it, as a political entity, sought systematically to eliminate civilian populations based on nationality, ethnicity, race, or religion.^[1] The genocide charges have been brought against Serbia under the 1948 Convention on the Prevention and Punishment of Genocide.^[2]

In today’s opening day of defense arguments, defense counsel Sasa Obradovic acknowledged that crimes were committed during the 1990s conflict and expressed remorse for the victims.^[3] He then challenged the truth of some of the more horrific allegations presented by Bosnia. Obradovic, referring to Bosnian charges that Serb forces threw children into ovens, labelled the allegations as “false and inaccurate,” and argued that “[t]hese improbable allegations should demonstrate that their sources cannot be taken as reliable."^[4]

Serbia also reasserted its challenge to the World Court’s jurisdiction to hear the case. Two years ago, the ICJ declined to rule on Serbia’s accusations regarding the 1999 NATO bombing of Belgrade on the grounds that, because neither Serbia—nor its predecessor state Yugoslavia—were members of the United Nations at the time, the court did not have jurisdiction over the complaint.^[5] Lead defence counsel Radoslav Stojanovic argued that, for the same reason that the ICJ lacked jurisdiction over the case brought by Serbia, the Court has no jurisdiction in the case brought against Serbia either.^[6] Moreover, neither Bosnia nor Serbia existed as sovereign nations when the suit was brought in 1993.^[7]

Given that the case has been before the Court for the last 13 years, and that the issue of jurisdiction has been subject of a separate proceeding, it is unlikely that the ICJ will terminate the proceedings at this point.^[8] The defense continues its opening arguments in the case tomorrow.

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[1] Serbs Dismiss Bosnian ‘Propaganda’ Over Genocide Charge, The Scotsman [hereinafter Scotsman], Mar. 9, 2006.
[2] United Nations Convention on the Prevention and Punishment of Genocide of 1948. The Convention defines genocide as genocide is defined as certain acts “committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
[3] Serbia Starts Defence in Bosnia Genocide Case, Reuters, Mar. 8, 2006.
[4] Scotsman supra note 1.
[5] Neil MacDonald, Serbia Disputes Court’s Jurisdiction, Financial Times, Mar. 9, 2006.
[6] Id.
[7] Serbia Begins Defense in Genocide Case, AP, Mar. 9, 2006.
[8] Case Concerning Application Of The Convention On The Prevention And Punishment Of The Crime Of Genocide—Preliminary Objections, Bosnia v. Serbia, July 11, 1996. In the Preliminary Objections, the ICJ considered the issue of jurisdiction in which it focused primarily on whether both parties were bound by the Convention On Genocide.

Crimes Against Humanity—ICTY Reduces Nikolić Sentence

In an ironic twist of timing, the Appeal Chamber at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has overturned the 27‑year sentence imposed in the case of Momir Nikolić and imposed a new sentence of 20 years.^[1] The irony is that the reduction was based on extent of cooperation and degree of remorse, both key factors in the sentence that was imposed on Milan Babic in 2004. Yesterday, we discussed Mr. Babic’s case and his unfortunate suicide in prison this past Monday.

On May 7, 2003 Nikolić entered a plea of guilty to one count of crimes against humanity, namely persecutions based on political, racial and religious grounds, for his role in the alleged crimes committed at Srebrenica in the 1990s.^[2] Based on the agreement, the Trial Chamber dismissed the remaining charges of genocide, complicity in genocide, and war crimes and imposed a cumulative sentence of 27 years imprisonment—well in excess of the recommended punishment.^[3] According to the terms of the plea, the Prosecutor agreed to recommend a sentence of 15 to 20 years in prison.^[4]

In today’s judgment, the Appeal Chamber granted 3 of Nikolić’s 12 grounds of appeal. The Appeal Chamber found that:

• The Trial Chamber impermissibly counted Nikolić’s role twice—once in determining the seriousness of the crime and again as an aggravating factor.^[5]
• When the Trial Chamber found that Nikolić expressed insufficient true remorse over the seriousness of the crimes, they relied on an incorrect translation of testimony. Specifically, in describing the number of dead, the statement uttered was that there were “…about 7,000.” However, the phase that shocked the Trial Chamber with its apparent callousness was the falsely translated “…only 7,000.”^[6]
• The Trial Chamber did not give sufficient credit to Nikolić for the extent and significance of his cooperation with the Tribunal. This error resulted in a miscalculation of mitigating factors.^[7]

The Appeal Chamber is the court of last resort at the ICTY. With no further avenues of appeal, Nikolić will remain in the custody of the Tribunal until he is transferred to a cooperating state prison to begin serving the remainder of his sentence. It is likely that Nikolić will be expected to testify against fugitive indictees Ratko Mladic and Radovan Karadzic, should they be captured and extradited to the ICTY, for their participation in the alleged crimes committed at Srebrenica in 1995.

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[1] Appeals Chamber Reduces Momir Nikolić’s Sentence, ICTY Press Release AM/MOW/1047e, Mar. 8, 2006.
[2] Prosecutor v. Nikolić, Amended Plea Agreement [hereinafter Plea], IT‑02‑60‑PT, May 7, 2006.
[3] Prosecutor v. Nikolić, Amended Joinder Indictment, IT‑02‑60‑PT, May 27, 2002. See also Prosecutor v. Nikolić, Sentencing Judgement [hereinafter Judgement], IT‑02‑60‑PT/1‑S, Dec. 2, 2003.
[4] Plea supra note 1 at para. 4(a). As noted in para. 13, sentencing recommendations are not binding on the Trial Chamber.
[5] Prosecutor v. Nikolić, Judgement on Sentencing Appeal [hereinafter Appeal], IT‑02‑60‑PT/1‑A, Mar. 8, 2006, at paras. 57-63.
[6] Appeal supra note 5 at paras. 68-73. The remarks in question were actually made by defense counsel. The Appeal Chamber found that the Trial Chamber deemed the statement to have been adopted by the defendant when he entered no objection to counsel’s comments.
[7] Appeal supra note 5 at 74‑115.

McNabb in the News (3-9-06)

Senior Principal Douglas McNabb will be a guest on the BBC radio show Today in Parliament tomorrow morning (March 9, 2006) at 7:00 AM ET. He will be joining a Member of Parliament to discuss the Extradition Act of 2003 and the 2003 extradition treaty that has yet to be ratified by the US Senate.

ICTY—Milan Babic Found Dead in Prison

The International Criminal Tribunal for the Former Yugoslavia (ICTY) announced yesterday that Milan Babic, former Serb leader in the Republic of Krajina and former international crimes defendant, was found dead in the United Nations Detention Center in the Netherlands where he was serving a 13‑year prison sentence.^[1] Detention Unit officials and Dutch authorities confirmed that Babic had taken his own life.^[2]

Babic was trained as a dentist and later served as the President and Foreign Affairs Minister of the breakaway Rpublika Srpska Krajina (Serbian Republic of Krajina), as well as President of the Serb Democratic Party (SDS), in the 1990s.^[3] He was indicted on one count of crimes against humanity and four counts of war crimes. Babic surrendered to the Tribunal voluntarily on November 26, 2003.

On January 27, 2004, Babic pleaded guilty to one count of crimes against humanity, namely persecutions on political, racial and religious grounds, as a co-perpetrator in a joint criminal enterprise under Article 5 of the ICTY Statute.^[4] As a condition of his plea, Babic was called by the prosecution to testify against other defendants before the International Tribunal, including Slobodan Milosevic and Momcilo Krajisnik. Less than two weeks ago, Babic appeared as a witness for the prosecution in the trial of Milan Martic.^[5] He was apparently expected to testify in future trials as well.^[6]

At the time Babic entered his plea, the prosecution was asking for a sentence not to exceed 11 years.^[7] However, the Trial Chamber, considering both the aggravating factor of his position of leadership in the alleged enterprise and the mitigating factors of his remorse and acceptance of responsibility, assessed a cumulative sentence of 13 years.^[8] In their decision, Justices Orie, El Mahdi, and Carnivell announced that they were “not convinced that [Babic] has at all times recognized the full significance of the role he played in Croatia in the period,” and that a sentence of a 11 years “does not achieve the purposes of punishment, nor does it do justice.”^[9]

The ICTY has initiated an internal inquiry into Babic’s death, as authorized in the ICTY Statute and Rules of Procedure and Evidence.^[10] This is the second reported suicide of an individual convicted by the ICTY. In 1998, Slavko Dokmanovic reportedly died by his own hand.^[11]

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[1] Milan Babic Found Dead in Detention Unit, ICTY Press Release, AM/MOW/1046e, Mar. 6, 2006.
[2] Id.
[3] Balkans: Milosevic Ally Babic Kills Himself in Jail, AKI News [hereinafter AKI], Mar. 6, 2006.
[4] Milan Babic Pleads Guilty to One Count of Crimes Against Humanity, ICTY Press Release JL/P.I.S./818‑e [hereinafter Press Release], Jan. 27, 2004.
[5] AKI supra note 3.
[6] Serb War Criminal Commits Suicide, Times Wire Services, Mar. 7, 2006.
[7] Press Release supra note 4.
[8] Milan Babic Sentenced to 13 Years’ Imprisonment, ICTY Press Release, CT /P.I.S./861e, June 29, 2004.
[9] Id.
[10] ICTY Statute, art. 27 provides for the Tribunal supervision of imprisonment. ICTY Rules of Procedure and Evidence, Rule 104, “All sentences of imprisonment shall be supervised by the Tribunal or a body designated by it.”
[11] Croatian‑Serb War Criminal Commits Suicide at UN Prison, Chicago Tribune, Mar. 7, 2006.

ICTY—UN Amends Tribunal Statute

Late last week, the United Nations Security Council announced that it had unanimously adopted Resolution 1660 (2006), amending the International Criminal Tribunal for the Former Yugoslavia (ICTY) Statute to create the new, appointed position of reserve judge.^[1] This resolution affects articles 12 and 13 quater of the Statute. The motivation for this rule change is to pre‑empt lengthy disruptions in trials while the ICTY attempts to execute its completion strategy.^[2]

In pertinent part, article 12 now provides that:
The Secretary-General may, at the request of the President of the International Tribunal appoint, from among the ad litem judges elected in accordance with article 13ter, reserve judges to be present at each stage of a trial to which they have been appointed and to replace a judge if that judge is unable to continue sitting.^[3]

Article 13 quater specifies that:
In the event that a reserve judge replaces a judge who is unable to continue sitting, he or she will, as of that time, benefit from the provisions of paragraph 1 above [granting all powers and immunities accorded to the ad litem judges].^[4]

The new provisions address only the need for a permanent replacement for a sitting judge. Absences of shorter durations are still addressed under Rule 15bis of the ICTY Rules of Procedure and Evidence.^[5]

The resolution was adopted pursuant to the request of ICTY President Fausto Pocar of Italy. This rule change is intended to ensure that active trials will not have to be restarted if a sitting permanent judge is unable to continue hearing the case. The reserve judge, who is required to be “present” at each phase of the trial, would simply ascend to the seat vacated by the incapacitated permanent judge and the trial would continue—presumably without significant prejudice to the defendant.

The question is to what extent this administrative efficiency causes prejudice to defendants in fact. Each trial is conducted solely by a three‑judge panel acting as trier of both fact and law. As such, it is essential that the judges be physically present for all phases of the trial and that they hear all of the evidence first‑hand. This factual question, rather than procedural due process concerns that would most likely arise in U.S. federal cases, is likely to be the basis of potential challenges to the new reserve judge scheme.

Background
In the summer of 2004, the international crimes trial of Slobodan Milosevic was interrupted by the resignation and subsequent death of Judge Richard May.^[6] At that time, it was necessary to hold hearings in order to secure the consent of the defendant to continue the trial with a substitute judge under Rule 15bis(C).^[7] Based on a lack of affirmative response, the matter was referred to the Trial Chamber to decide whether it was in the interests of justice to continue without the defendant’s consent.^[8]

Under the new rules, there is no longer a procedural or administrative need for consent or evidentiary hearings.

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[1] Security Council Amends Former Yugoslavia Tribunal Statute, Unanimously Adopting Resolution 1660 (2006), United Nations Security Council Press Release SC/8653 [hereinafter UN], Feb. 28, 2006. See also Security Council Amends Tribunal Statute, ICTY Press Release AM/MOW/1045e [hereinafter ICTY], Mar. 1, 2006. The UN Security Council is authorized to amend the Tribunal Statute in accordance with its Chapter VII powers.
[2] ICTY supra note 1. “This measure assists the Tribunal in its efforts to complete its work by avoiding situations in which a specific trial would have to be restarted if one of the judges on the bench is unable to continue.”
[3] UN supra note 1 at art. 12 annex (5).
[4] UN supra note 1 at art. 13 quater annex (4), brackets mine. During their terms of appointment, ad litem judges are appointed to specific trials and have the same powers as permanent judges, including adjudicative powers.
[5] International Criminal Tribunal for the Former Yugoslavia Rules of Procedure and Evidence [hereinafter Rules], Rule 15bis (A). “If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business, unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than five working days.” See also Order Under Rule 15bis to Sit in the Absence of a Judge, Prosecutor v. Milosevic, IT-02-54-T, May 6, 2005.
[6] Message of Judge Theodor Meron, President of the ICTY, Upon the Death of Sir Richard May, Retired Judge of the Tribunal, ICTY Press Release MF/P.I.S./867e, July 1, 2004.
[7] Rules supra note 4 at Rule 15bis(C).
[8] The Trial Chamber implemented its ruling in the affirmative in its Order Replacing a Judge in a Case Before a Trial Chamber, Prosecutor v. Milosevic, IT‑02‑54‑T, June 10, 2004.

McNabb in the News (3-6-06)

Senior Principal Douglas McNabb has been quoted in an article in The Tennessean about the potential extradition of Martha Patlan and Genero Espinosa Dorantes, who we discussed last Tuesday.

Convincing the Mexican government to extradite Patlan and Dorantes will require a promise that they won't be subject to the death penalty, said Douglas McNabb, a Washington-based lawyer whose firm specializes in international extradition defense.

"Because Tennessee can seek the death penalty and Mexico can't seek one, Mexico is going to want to get written assurances that the U.S. will not seek the death penalty," he said. "That's going to be a big issue."^[1]

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[1] Christian Bottorff, Extradition in Boy’s Death May Take Years, The Tennessean, Mar. 3, 2006.