The Iraqi Special Tribunal and the Right to a Fair Trial

In my initial post yesterday, I discussed some of the ways international tribunals limit the right of defendants to an effective defense. That difficulty, not surprisingly, is not unique to the tribunals; national criminal prosecutions that apply international law – substantively and procedurally – are usually no better, and are often far worse.

The current trial of Saddam Hussein, which is based on an unstable blend of international criminal law and Iraqi criminal procedure, is a case in point. Article 19 of the Iraqi Special Tribunal Statute provides defendants with fair-trial rights that are essentially similar to the ICCPR’s, including the right “[t]o 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.” As Human Rights Watch has thoroughly documented, however, the IST has repeatedly undermined the rights of Saddam, his co-defendants, and the other “High Value Detainees” to a fair trial and an effective defense.

First, between June, 2004, and December, 2004, when the IST became operational, U.S. investigators used Iraqi government documents to question at least thirty detainees. Those interrogations took place before any of the detainees were represented by counsel, and it is highly unlikely that the detainees were informed of their right to counsel and right to remain silent, both protected under the IST Statute. The IST has assured HRW that it will not use any uncounseled statements made by the detainees as evidence against them at trial, but nothing in the IST Statute, the IST Rules of Procedure and Evidence, or the Iraqi Code of Criminal Procedure requires such exclusion. Moreover, the IST refused to guarantee HRW that it will exclude inculpatory evidence obtained through investigations initiated as a result of uncounseled statements (no “fruit of the poisonous tree” doctrine).

Second, the IST has consistently interfered with the ability of defense attorneys to meet with their clients. In some cases, the IST has delayed or refused to accept attorney’s applications to register as counsel. Requests to meet with a particular defendant have been ignored or delayed, and when access has been granted it has often been timed to coincide with the defendant’s questioning by an investigative judge – when counsel was required by Iraqi law to be present. On more than one occasion, a U.S official with knowledge of Arabic has been present in the interview room when a defense attorney was conferring with his client. (The right of a defendant to meet in private with his attorney was only added to the IST Statute in October, 2005.) And just yesterday the IST confirmed that it was prohibiting the attorneys for Saddam and his co-defendants from meeting with their clients, ostensibly as punishment for leaving the Tribunal last week after clashing with the judge.

Third, defense attorneys have not been present when the investigative judge has interviewed witnesses and collected relevant evidence, even though Article 57 of the Iraqi Code of Criminal Procedure permits the presence of counsel unless the investigative judge enters into the record an explanation of why counsel’s presence was not permitted. The absence of defense attorneys during the investigative stage is particularly troubling, because the dossier prepared by the investigative judge for the trial court constitutes substantive evidence of a defendant’s guilt. In this respect, the IST lags far behind international criminal law generally: the ICTY specifically held in Kordic and Cerkez that such wholesale admission of a dossier is inconsistent with the right to a fair trial; instead, the trial court must examine each category of evidence in the dossier, sensitive to the need to guarantee the evidence’s authenticity and to the dangers of admitting evidence not tested by cross-examination.

Fourth, defense attorneys have consistently been prevented from adequately examining the evidence against their clients, despite the fact that Rule 40 of the IST’s Rules of Procedure and Evidence specifically provides that the defense is permitted “to inspect any books, documents, photographs and acquire these things, which are material to the preparation of the Defence, and also inspect any books, categories of, or specific documents, photographs and tangible objects in the accused custody or control which are intended for use by the Criminal Court as evidence at the trial.” Defense attorneys were routinely denied access to documents and evidence during the investigative phase, and transcripts of judicial questioning were never made available, despite numerous requests. Moreover, attorneys have consistently been denied sufficient time to review the investigative judge’s dossier — and have often been forced to conduct even that limited review in public areas of the court.

Fifth, Rule 40 of the Iraqi Code of Criminal Procedure only requires the prosecution to disclose witness statements and all other evidence 45 days before trial. 45 days is a patently insufficient amount of time to prepare a defense to charges of crimes against humanity and genocide, especially given that Iraqi law permits imposition of the death penalty for both.

Sixth, and finally, all of these problems are compounded by the lack of equality of arms between the prosecution and defense. Although Saddam Hussein and other high-profile defendants have access to skilled defense attorneys (when they’re allowed to meet with them), many future defendants will have to employ or be assigned Iraqi attorneys with little or no experience in international criminal law. Moreover, those attorneys will face a prosecution team with far superior resources and training: the U.S. has allocated $128 million to investigating and prosecuting former Iraqi officials, and has established a fifty-person office, the Regime Crimes Liaison Office, that has played an active role in interviewing detainees, reviewing documents, and training IST staff.

In the wake of the murders of two defense attorneys involved in Saddam’s trial, numerous scholars and human-rights groups have called on the Iraqi government to move the IST out of Iraq. There is no question that such a move would improve the security situation, but it would not address the central problem with the IST: as presently constituted, defendants are unlikely to get a fair trial no matter where the trials are held.