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Michael Scharf, Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western University Law School in Cleveland, discusses the possibility for justice in the recent verdict in the International Criminal Tribunal for Yugoslavia for the case of Momčilo Krajišnik. Having just returned from the Netherlands where he was advising on how to handle a defendant such as Saddam Hussein, he also speaks about Saddam’s second trial that is currently taking place in Baghdad.
TRANSCRIPT:
JERRY FOWLER: My guest today is Michael Scharf. He is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western University Law School in Cleveland. Last year, he was nominated for the Nobel Peace Prize by the Chief Prosecutor of the Special Court of Sierra Leone. He is joining us for his second visit on Voices on Genocide Prevention. Michael, welcome back.
MICHAEL SCHARF: Hi Jerry; it is good to be back.
JERRY FOWLER: There are a couple of big events happening in the world of international justice regarding genocide. As we are speaking today, on Wednesday, the International Criminal Tribunal for Yugoslavia handed down the judgment in the case of who was the speaker of the Bosnian Serb Assembly and one of the political leaders of the Bosnian Serb community during the so-called ethnic cleaning of 1991 and 1992 in former Yugoslavia, and they convicted Krajišnik of the crime against humanity of extermination and the crime against humanity of persecution against Bosnian Muslims, but they acquitted him on the charge of genocide. How could that happen?
MICHAEL SCHARF: It is kind of a weird decision Jerry actually. I have been really wondering about this and I am going to have to study the opinion in a lot of detail to try to make sense of it, I guess, but right now I would have to say that for genocide—as your listeners know from all of your episodes in the past—there is this very high standard of specific intent that is required of a conviction. You have to really prove that the individual defendant intended specifically to either destroy the entire group, or a large portion of the group, because of its ethnicity or race or religion, and crimes against humanity which is a lower crime in international law under the hierarchy of evil does not quite require that kind of a standard; instead you have to show that somebody committed—in this case extermination which is mass killing, and persecution which is again killing people based on their political or racial or religious belief and grounds, and that the people that you killed were basically civilians, and that a whole lot of them died. It is a bit of a different standard, but in the case of Krajišnik, you would think that in the midst of the ethnic cleansing campaign of 1992 when the Bosnian Serbs, aided by Serbia, were really trying to remove the Bosnian Muslims from a large portion of the territory, in order to do a huge land grab, and they did this through burning, rape, mass killing on a large scale, and this is an individual who was part of the decision making apparatus. He was one of the top three people in the government; nothing could have been done without him. You would think that if you could convict him of the crime against humanity of persecution that it comes awfully close to what was necessary for genocide, so it is a little bit puzzling that the court has made that distinction in this case.
JERRY FOWLER: You talk about this issue of intent being a very high bar. What kind of evidence would be necessary to establish a person’s intent to destroy a group if it is not the type of campaign that was actually carried out in Bosnia?
MICHAEL SCHARF: As you know, there have been very few convictions in history of the crime of genocide. Before the Genocide Convention, and before the term really became a legal term, you had the Nazis convicted of what was in essence genocide, on the strength of evidence that they planned the extermination of six million Jews, and they order the extermination, and they carried out the extermination of so many people. In modern times, you have got a couple of Rwanda tribunal cases, a couple of Yugoslavia tribunal cases, where the tribunal has decided that genocide has occurred, and the only time that they have convicted for genocide is where the leader actually ordered and directly knew what was going on and participated in it and desired to bring about that result. It could be that, in cases where you have got a leader that is maybe one-step removed and you are trying to get him under a theory of liability like command responsibility or joint criminal enterprise that the tribunal does not believe you can meet the threshold of proving the specific intent for genocide.
JERRY FOWLER: Another aspect of this decision handed down by the International Criminal Tribunal for Yugoslavia, today on Wednesday, that puzzles me, and I think a lot of Americans do not quite understand is that he was convicted of extermination—which as you say is mass murder and persecution—and a couple of other crimes, and his sentence was twenty-seven years. That seems awfully lax, awfully light for crimes of this magnitude/
MICHAEL SCHARF: You have to look at it in the context of really the European sentencing structure, where in Europe, often a twenty year sentence is thought of as a life sentence, and there have actually been these huge debates in the Yugoslavia tribunal where they have given life sentences, and then they have sent people to carry out their sentences in a European country's jails, and the European jail says, “Ok, well, they have a life sentence; we will let them go in twenty years,” and so what they have gone to doing is saying the actual words very specifically: we sentence you for the rest of your life, in order to ensure that these people are not released after just twenty years. A twenty-seven year period, in the European context, would be seen as seven years greater than a life sentence, and so this is actually one of the more serious sentences that has been handed out by the tribunal, given the age of this individual; also it is unlikely that he would ever see civilian life again. I think that this is probably not seen by the judges as a light sentence at all.
JERRY FOWLER: Another issue that is presented by the Yugoslav Tribunal is that Krajišnik was being tried for events that happened in 1991 and 1992, and he has been in custody since 2000, and it is 2006 before he is convicted, so really, fully fourteen years after the end of the time when these crimes were being committed. Is it really possible to have meaningful justice when there is such a gap of time between the events and the judgment?
MICHAEL SCHARF: You know, Jerry, they are still prosecuting some of the surviving octogenarian Nazis who are surfacing after all these years for World War II crimes, and there is about to be prosecutions before the Cambodia Tribunal for crimes that occurred in the 1970’s which were thirty-six years ago, so I think that fourteen years might sound like a long time, but this is a person who really escaped justice for awhile, and then when they were finally brought to justice, some of the delays were based on his defense council asking for more time. Justice in the scheme of war crimes moves fairly slowly. Again, when we talked about the Saddam trial, Saddam is being accused of genocidal acts that occurred in the 1980’s which were a decade before the acts that Krajišnik was accused of, so this is pretty much again, par for the course.
JERRY FOWLER: Let us turn to the Saddam trial. As you say, he is charged with genocide. Briefly, what is the basis of that charge?
MICHAEL SCHARF: As you know, the Saddam trials—plural—are a series of six trials dealing with different things that the Ba’ath party did while Saddam Hussein was in power, and the first trial that ended during the summer—the verdict will be coming out in two weeks—involved just a small minor incident at a town of al-Dujail where 158 people were killed. The second trial is the onfall campaign trial, and it involves an accusation of 180,000 people murdered systematically over an eight month period, from seventy different towns in Northern Iraq, and these towns were almost completely Kurdish, and the reason for their destruction, according to the prosecution, was genocidal, to destroy and remove the Kurds from that part of Iraq.
JERRY FOWLER: Before we go further, we should clarify, what is the court that is trying Saddam? This is not an international court in The Hague; this is actually a court in Iraq.
MICHAEL SCHARF: This is an Iraqi court, sitting in Baghdad, with all Iraqi judges; it was created by a legislative act by the new democratic government once it had its elections, and it seems for all intensive purposes like a regular domestic tribunal, but it is not. Really, it is a tribunal that was highly influence by the United States and the United Kingdom, it has taken as its law the law of the Yugoslavia tribunal and the Rwanda tribunal and the International Criminal Court, its rules of procedure are modeled after the international tribunals, and it has international assistance from all over the world helping with this case because it is a case of such high magnitude. I like to think of it as an internationalized domestic trial.
JERRY FOWLER: You were kind of suggesting that that is a positive aspect of it; aren’t there some questions about the legitimacy of this court because of the influence, especially of the United States?
MICHAEL SCHARF: I think in a perfect world, the outside assistance would have come from countries that had less of an interest and would not have the taint of having invaded Iraq in the first place without Security Council authorization. We have to remember that the permanent International Criminal Court is established under the concept of complimentarity which means that domestic trials are always to be preferred unless, and only when, they are incapable or unwilling to prosecute, and this model of having international assistance to help domestic trials prosecute is actually one that the International Criminal Court favors. The problem again is that the United States invaded Iraq and one of the first things as an occupying power it did is it created this Iraqi high tribunal, and the fact that the legislature of Iraq later re-legislated and made changes to the tribunal, is not in everybody’s eyes seen as a way of cleansing the tribunal from the initial taint. That is an issue I am sure that the judges are going to deal with in their very first verdict which will come out in two weeks.
JERRY FOWLER: Speaking of judges, in the trial that is going on now, this trial for the onfall campaign, the Chief Judge was just replaced after he was perceived to have said some, I guess, nice things about Saddam. Isn’t it a little unusual to replace a judge in the middle of a trial, especially because he might have said something generous towards the defendant?
MICHAEL SCHARF: This is actually the second time that this has happened. In the very first trial, Judge Rizgar Amin, who was seen as a very sweet, nice, gentlemanly judge, was criticized because he was losing the battle of the wills against Saddam, and under tremendous political pressure and media pressure and public pressure, he withdrew and was replaced by one of his assistants, one of the other judges. This time, the initial media reports were that the President of Iraq literally reached over and had the Chief Judge al-Amiri—who was proceeding over the second trial—removed and replaced by one of his subordinates. The problem, though, with press reporting is that you never quite get the full story. There was a press report a few days later that, in fact, what happened was that the other judges had made a request to the President of Iraq to remove this judge for a variety of reasons, including the fact that he was saying these things like, “Saddam, you are not a tyrant; you are not a dictator, you are just a good guy,” but the other things he was doing, for example, was declaring a three week recess after the trial began, right after everybody agreed that this trial had to be much more efficient than the first trial. What we do not know exactly is what the role is that the judges played in making the request and how much of this was interference from the presidency versus a proper judicial request to the presidency, under the statute, to have someone removed who was not doing the job, not just because he was saying kind words, but for other reasons as well.
JERRY FOWLER: Who are these judges? Are they judges who had been judges under Saddam Hussein? Were they exiles?
MICHAEL SCHARF: We only get to see the judges once they become the Chief Judge of any trial, and since they do tend to replace the Chief Judge, we have seen four of the fifty judges, but the rest of them—and there are five for each of these trials—still have their faces removed from public view in order to protect them, so we do not know as a public who they are. I, however, was invited to help train the judges two years ago, and so I spent a couple of weeks with all fifty of them. What I learned was that during Saddam Hussein’s reign, he had created two court systems: an ordinary court system which he pretty much left alone and an extraordinary court system; he called them the revolutionary courts or the special courts which were these politically motivated tools of his power. There were one thousand judges, overall, in Iraq at the end of the regime in 2003. Two hundred and fifty of them had been members of the Ba’ath Party or had presided in these revolutionary courts, leaving 750 ordinary judges to select from. The Iraqi Bar Association, together with the new government of Iraq that had recently been elected democratically went through all the names, and looked at their resumes, and had interviews, and they excluded people who were exiles, they excluded people who had any kind of evidence that someone in their family had been injured or that they had directly been hurt by the Saddam regime. They did not always vet that carefully I suppose because during the first trial, one of the judges that was on the bench heard some testimony that indicated to him that one of his family members was actually a victim, and then he himself said, “I have to quit; I have to resign because of a conflict of interest,” and there are rules for this court for that to happen, but basically you had these judges that were just ordinary judges over criminal trials, property trials, contract disputes, that were out of the eye of the dictator, and some of them had twenty or thirty years of experience judging. Of course, none of them knew anything about crimes against humanity or genocide or war crimes, so it has been a steep learning curve for all of them.
JERRY FOWLER: One of the issues in the first trial and now in this trial has been Saddam’s behavior in his attempts to disrupt the proceedings, and now I think just a couple of times this week he has been removed from the courtroom. How can judges deal with a disruptive defendant?
MICHAEL SCHARF: It is sort of a battle; it is like an arms race that goes back and forth. Everything the judges try to do, Saddam and his lawyers try to counter. This is not the first trial in history where you had a defendant who was not so interested in getting an acquittal as he was in disrupting or derailing the trial. Going back even in the United States, you can go to the 1969 Chicago Seven Trial, featuring Abby Hoffman and Bobby Seal for an example of what can go wrong in a courtroom when the defendants are bound to determine to try to wreck the trial. What happened in that trial is that the judge actually put a gag and handcuffed the defendant during the trial, and what we remember historically about that trial was that the judge seemed to treat the defendant unfairly, but you always have to wonder, what choice does a judge have? More recently in the case of Zacharias Mousawi just last year, the twentieth person that was supposed to have been involved in the World Trade Center bombings was so disruptive that the American judge threw him out of the courtroom three times in a single day. Saddam Hussein is doing the same thing. Whenever the evidence gets too intense, he stands up and says outlandish things in the courtroom, they try to turn off his microphone, he yells and screams, and finally the judge says, “You are out of here. I am removing you from the court,” and to the rest of the world it looks unfair, but you have to wonder what choice does a judge have under those circumstances? How do you handle a case like that? It is very difficult.
JERRY FOWLER: I guess a related issue is that Saddam Hussein’s defense lawyers have boycotted the proceedings because of their claims of unfairness. You kind of have a situation where neither the defendant nor his retained defense lawyers are participating.
MICHAEL SCHARF: One of the things that the judges have done in the Saddam trial is to take a page out of the Yugoslavia tribunal, Rwanda tribunal and Sierra Leone tribunal precedent, and they have appointed these stand-by public defenders. There are Iraqi lawyers—actually these people were superstars; they were next in line to be the judges, so they are very qualified people—they have been sitting throughout the trial, ready to step in if anything should happen—if a defense council dies, if a defense council boycotts, if a defense council becomes so disruptive that they have to be removed, and in the first trial, these people stepped in about halfway through the trial, and afterwards, the trial went much more efficiently, and the press actually reported that the closing arguments by the public defenders were superb. They were eight hours long; they really made their case, and I think a lot of the press did not even notice that these were not Saddam’s actual retained lawyers, but rather the public defenders that replaced them. What is going on in this case is that if the defense council boycotts, they cannot just wreck the process, and the judge says we will go forward with these public defenders, and the problem to date, I think, is that the press office for the Iraqi high tribunal has not done a good job of educating the Iraqi public and the world public that these public defenders are really quite capable of doing a good job defending Saddam. The only problem is Saddam does not like them and he will not talk with them, and if he does not cooperate with his lawyers, the question is: can he really get a good defense?
JERRY FOWLER: And the answer to that is?
MICHAEL SCHARF: Sometimes there is not a lot of choice. If his own defense council are walking out of the courtroom without permission, they are literally abandoning their client in a capital case where his life is at risk, and it is probably better for Saddam, under those circumstances, to have appointed council who are vigilantly going to try to make the best arguments that they can, on the record, than to have defense council that are more interested in making political points or that are not interested in appearing at all in order to discredit the tribunal.
JERRY FOWLER: One final question; you were just over in the Netherlands doing some classes with the prosecutors at the International Criminal Court. Did you get any inkling of the progress that they are making in investigating Darfur?
MICHAEL SCHARF: No, what they seem to be more interested in right now is focusing on the Charles Taylor case which is about to begin, but the issue of Darfur in the context of my sessions, which actually were about this very issue, about how do you handle a courtroom when a defendant and his lawyers are trying to wreck the procedure. That is what we were focusing on, and they were very concerned about it because it is not just Saddam Hussein. Slobodan Milosevic did it; there is a case that is just starting up at the Yugoslavia tribunal called the Seselj case, and Seselj was just ordered to have an appointed lawyer rathern than to represent himself because he had been so disruptive, and again, that was a controversial ruling that we will probably be hearing much about in the future months, and Charles Taylor himself has been know to be really outrageous, and so he is being prosecuted not by the ICC, but in the ICC, and they are trying to figure out whether they need to reconfigure the courtroom. Should they put a glass booth around him like they did for Eichmann in Jerusalem in the 1960s? How do you handle this situation? It is one that will not go away.
JERRY FOWLER: Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western University Law School in Cleveland. Mike, thanks for being back with us.
MICHAEL SCHARF: Always a pleasure Jerry.
JERRY FOWLER: Take care.
