The Saddam trial: challenges to meeting international standards of fairness with regard to the defense.

AuthorEllis, Mark S.
  1. INTRODUCTION

    It is an unfortunate fact that the Saddam trial will likely be remembered more for its chaotic nature and inefficiencies than for its contribution to establishing accountability for international crimes. Yet, the Supreme Iraqi Criminal Tribunal ("Iraqi Tribunal") addressed a number of important legal issues during the Dujail trial.

    The Iraqi Tribunal dealt with many issues touching on the relationship between the Iraqi Tribunal and the defense. For instance, the Iraqi Tribunal regularly removed defendants from the trial proceedings because of disruptive behavior. Defense counsel, too, were dismissed from the trial proceedings. The Iraqi Tribunal also took the unique step of imposing counsel on defendants against their wishes.

    Were these steps consistent with Iraqi and international law? From the perspective of the defense these Iraqi Tribunal actions were improper and made the subsequent proceedings illegal. The counter view is that the tribunal had the legal authority to take these actions in the interest of justice. This article will review key Iraqi Tribunal decisions relating to the defense, and determine whether the defendants' rights were violated. Because the Iraqi Tribunal relies on international law, (1) this assessment will include a review of international treaty law, decisions from existing international war crimes courts, and Iraqi law.

  2. WAS THE IRAQI TRIBUNAL CORRECT IN REFUSING DEFENDANTS THE RIGHT TO SELF-REPRESENTATION?

    The Statute for the Iraqi High Tribunal establishes a series of rights afforded to defendants to ensure that they receive a "just [and] fair trial." (2) A defendant in the Iraqi Tribunal receives extensive procedural and substantive protections, including the following minimum guarantees:

    1. To be informed promptly and in detail of the content nature and cause and of the charge against him;

    2. To have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing and to meet with him privately. The accused is entitled to have non-Iraqi legal representation, so long as the principal lawyer of such accused is Iraqi;

    3. To be tried without undue delay;

    4. To be tried in his presence, and to use a lawyer of his own choosing, and to be informed of his right [to] assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance and to have the right to request such aid to appoint a lawyer without paying the fees, case if he does not have sufficient means to pay for it; if he does not have the financial ability to do so.

    5. The accused shall have the right to request the defense witnesses, the witnesses for the prosecution, and to discuss with them any evidence that support his defense in accordance with the law.

    6. The defendant shall not be forced to confess and shall have the right to remain silent and not provide any testimony and that silen[ce] shall not be interpreted as evidence of convection or innocence. (3)

    Noticeably absent from the Statute is any provision for the right to self-representation, (4) making the Iraqi Tribunal the only "international or internationalised" tribunal that does not ensure such a right. (5) The right to self-representation is guaranteed by a number of international and regional conventions (6) and is seen as a fundamental right. (7) However, a defendant's right to self-representation is not absolute; it is a qualified right that can be restricted or even denied in certain circumstances.

    The International Criminal Tribunal for the Former Yugoslavia (ICTY) has wrestled with the issue of such representation during most of its life cycle. Although the ICTY's Statute guarantees the right of the accused to conduct his or her own defense, (8) this has been restricted by the tribunal's own decisions.

    In the case of Prosecutor v. Slobodan Milosevic, (9) the prosecutor requested that counsel be assigned against the wishes of Mr. Milosevic. Although the tribunal denied the prosecutor's request, it nonetheless emphasised that international and regional treaties "plainly articulate a right to defend oneself in person." (10) However, the tribunal declared that "the right to defend oneself in person is not absolute ... there may be circumstances ... where it is in the interests of justice to appoint counsel." (11) In short, the accused "under customary international law ... has a right not to have counsel." (12)

    The ICTY later confirmed its position that the right to self-representation could be limited or denied under appropriate circumstances. Once again, the issue was whether the tribunal could order the appointment of defense counsel to assist Mr. Milosevic, even though he did not want the assistance. The tribunal structured its decision on the position that appointed legal representation was imperative for a fair trial. (13) The tribunal ruled that it was "plain from the medical reports" that the accused was not fit to de fend himself and that allowing him to defend himself was delaying the trial. (14)

    In its decision, the ICTY judges looked to European Court of Human Rights (ECHR) jurisprudence to clarify when the right of self-representation can be limited. (15) The tribunal concluded that the fact that the law of some States precludes a defendant in a criminal case from representing himself, requiring that a lawyer assist him with his defense, is not incompatible with the ECHR. (16) Thus, in the case of Croissant v. Germany, (17) the European Court of Human Rights held that where the accused had appointed two counsel of his own choosing, the Regional Court's insistence upon the appointment of a third in spite of the accused's strong objection to that appointment did not violate Article 6(3)(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, this appointment did not violate the minimum right of an accused "to defend himself in person or through legal assistance of his own choosing." The court stated that

    it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant's wishes.... However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice. (18) The court specifically noted that "avoiding interruptions or adjournments corresponds to an interest of justice which is relevant in the present case and may well justify an appointment against the accused's wishes." (19)

    The tribunal concluded that Articles 20 and 21(4)(d) of the the ICTY Statute allowed for the assignment of counsel. (20) The tribunal ruled that the overarching right to a fair trial including the right to a defense, may lead to the assignment of counsel to conduct the defense for the accused. (21) Furthermore, the need for the trial to continue overrode the importance of respecting the right of the accused to represent himself. (22)

    The assigned counsel for Milosevic appealed the decision of the Trial Chamber and argued that the right to self-representation constituted "a fundamental principle" protected by both European and international law and that the trial chamber erred in its interpretation of the ICTY Statute. (23) Defense also argued that the trial chamber did not correctly adhere to past decisions by the ICTY and the International Criminal Tribunal for Rwanda (ICTR). Defense argued that

    [t]he circumstances in which counsel have been assigned to an unwilling defendant at the ICTY and ICTR have been limited to circumscribed situations, largely concerning obstructionist behaviour by defendants. This is not the case in the present situation, where the sole possible justification for considering the imposition of counsel relates to the health of the accused, who has consistently asserted his right to represent himself from the time he was transferred into the custody of the ICTY. (24) On appeal, the tribunal affirmed in part and reversed in part the trial chamber's decision to impose defense counsel. (25) Although the appeals chamber found that the trial chamber's restriction to self-representation failed a proportionality test, it stated that the right to a fair trial may, where appropriate, lead to the assignment of counsel for the accused. The right to self-representation "may be curtailed on the grounds that a defendant's self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial." (26)

  3. WAS THE IRAQI TRIBUNAL CORRECT IN IMPOSING STANDBY COUNSEL ON THE DEFENDANTS?

    Addressing previous discussions as to whether counsel can be assigned to obstructionist defendants, the ICTY trial chamber in Prosecutor v. Serelj answered in the affirmative. (27) The tribunal ruled that standby counsel could be assigned to a defendant despite his objection. (28) Finding that the defendant's attitude and actions were obstructionist, the tribunal determined that the appointment of standby counsel was in the interest of justice and the best way to maintain the integrity of the proceedings. (29) The tribunal ruled that

    [t]he phrase "in the interests of justice" potentially has a broad scope. It includes the right to a fair trial, which is not only a fundamental right of the Accused, but also a fundamental interest of the Tribunal related to its own legitimacy. In the context of the right to a fair trial, the length of the case, its size and complexity need to be taken into account. The complex legal, evidential and procedural issues that arise in a case of this magnitude may fall outside the competence even of a legally qualified accused, especially where that accused is in detention without access to all the facilities he may need. Moreover, the Tribunal has a legitimate interest in ensuring that the trial proceeds...

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