Opinio Juris

Marty Lederman has kindly published a long post I have written on what — if anything — the Justice Case has to say about the criminal responsibility of government lawyers like Yoo. Here is the introduction:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:

Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.

I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

I hope readers will check out the entire post, along with Marty's excellent introduction, in which he discusses his general views on the issue. I completely agree with Marty and hope that readers will not misunderstand my position. I am not saying that nothing John Yoo and the other government lawyers did could ever be considered criminal. I am not saying that the Justice Case rules out the possibility of a future prosecution. Indeed, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.

As a brief follow-up to Sonya's post, it's worth noting that the IHT began trying Tariq Aziz, Saddam's deputy prime minister and the highest ranking Christian in Saddam's regime, earlier this week:

Iraq's former deputy prime minister, Tariq Aziz, was known as the 'Ace of Spades' in the United States' deck of playing cards of Iraq's most wanted.

But he was better-known as the regime's moderate public face, who fronted the cameras in the days before the US invasion with his trademark black-rimmed glasses and Cuban cigars.

Aziz has now gone on trial in Iraq on genocide charges, accused of approving the execution of scores of business people while the country was under economic sanctions.

He has been in US custody for the last five years and if he is found guilty, he could face death by hanging.

The 72-year-old entered the courtroom with a walking stick, looking frail and weak.

He and seven others are on trial for executing 42 Baghdad merchants in 1992, who were accused of raising food prices at a time when Iraq was facing stiff UN economic sanctions.

[snip]

Judge Rahim Hassan al-U'kaili says Aziz and his seven co-defendants will be charged with war crimes, genocide and crimes against humanity.

"Tariq Aziz didn't have any role in the issue of the execution of merchants," he said.

"However, his participation in the issuance of two resolutions which stipulated the following - each one who monopolises foodstuffs for commercial purposes should be executed, and his portable and non-portable properties should be confiscated."

Although I haven't examined the case against Aziz in any detail, the genocide charges are puzzling. The victims were merchants executed (almost certainly illegally) for price-gouging. So where is the specific intent to destroy a racial, ethnic, national, or religious group?

The following article was written by Sonya Sceats, Associate Fellow in International Law at Chatham House in London. It first appeared in The World Today, Chatham House's journal. I am reprinting it here for our readers who are interested in the more recent activities of the Iraqi High Tribunal.

Rowdy sessions of the Iraq High Tribunal attracted sensational daily news coverage while Saddam Hussein was being tried. However, following his grim execution in December 2006, coverage all but evaporated. The foreign press and most western monitors packed their bags and left, and television reporting in Iraq dwindled. Now even the United States Department of Justice, which initially provided key financial and political support, is quietly withdrawing its advisers.

So what is happening at the Tribunal and why are the Americans pulling out?

The departure of the American lawyers is hugely significant. In practical terms, it means that crucial technical assistance for the judges and prosecutors will be lost. From a more general perspective, it marks a watershed in the gradual turning inwards of the Iraqi High Tribunal. The desire of the Iraqis to try Saddam Hussein and other senior Ba’athists themselves, and their insistence on making the death penalty available, means that international involvement has always been low. But until recently, the presence of international advisers, and, in the courtroom, journalists and observers, ensured some connection with the outside world.

DYSFUNCTIONAL

According to insiders, the Tribunal is in a state of internal turmoil. Morale among the judges is said to be very low. For example, the judges who heard the case relating to widespread attacks on Kurdish villages in 1998 are reportedly disillusioned by ongoing political wrangling over the execution warrants for Ali Hassan al-Majid, better known as Chemical Ali, and two others found guilty – former defence minister Sultan Hashem Ahmed and Hussein Rashid Mohammed, a deputy chief of staff in the army. Powerful interests are resisting the execution of Sultan Hashem in particular because he is widely respected in the military and in Mosul, where his tribe is fighting Al Qaeda, and there are fears his execution will inflame the insurgency.

It seems likely that the US Department of Justice is withdrawing in a bid to disassociate itself from the high levels of dysfunction. Infighting and absenteeism among the judges have both become rife. This has caused a sharp drop in productivity which will in turn almost certainly delay the commencement of important new trials. Meanwhile the loss of international interest may have compounded the problems. With the departure of the press and most independent monitors, vital forms of external scrutiny have been lost.

GENOCIDE CASE IGNORED

The Tribunal has concluded two trials and is nearing the end of a third. The opening case concerning the massacre of 148 villagers in Dujail was the subject of intense scrutiny by the media, non-governmental organisations (NGOs), academics, and others. Key talking points included the courtroom antics of Saddam and his co-defendants and frequent boycotts by their lawyers, the challenging security context – several staff and defence lawyers were killed while the trial was in progress – and the important question of whether it was fair. Unfortunately, subsequent cases, involving crimes of far greater magnitude, have barely been reported or discussed. The Tribunal’s second, and arguably most important, trial concerned the series of chemical and other attacks launched by Iraqi armed forced on thousands of Kurdish villages in 1998. An estimated 180,000 people lost their lives in what came to be known as the ‘Anfal’ – spoils of war – campaign. Between August 2006 and June 2007, six leaders of the attacks including al-Majid were tried for genocide, crimes against humanity, and war crimes.

Charges were also brought against Saddam, who attended early sessions, but were dropped following his execution. Undoubtedly, his absence was the primary reason for such patchy news coverage. This is deeply regrettable because, in contrast to the Dujail killings, a relatively minor incident, the Anfal campaign was an iconic symbol of the barbarity of the Ba’athist regime. It is therefore understandable that many Kurds feel bitter that Saddam escaped accountability for these atrocities because of a prosecution strategy which prioritised Dujail to secure a ‘quick win’.

Lack of interest also means that ongoing problems and some modest improvements since the Dujail hearing have not been properly acknowledged. Low points included the removal of the first presiding judge, at the request of the Iraqi prime minister’s office, after he stated in court that Saddam was ‘not a dictator’, and another boycott by defence lawyers.

According to the International Center for Transitional Justice, the lone NGO monitor for the Anfal trial, defendants faced many challenges including impossibly vague charges, and a Tribunal failure to accommodate defence testimony; less than ten defence witnesses were heard.

On a brighter note, the proceedings were generally less chaotic. The quality of legal argument also improved – the prosecution made a strong case for the command responsibility of most defendants, proper defences were mounted and the Tribunal demonstrated increased competence in international criminal law.

From a legal perspective, the most important feature of the trial is the genocide verdict. This crime is notoriously difficult to prosecute because of the need to demonstrate a specific intent to destroy, in whole or part, the persecuted group, and this remains one of the few times it has been proved in court. The proceedings were closely followed by Iraqi Kurds. When the verdicts were announced – all but one of the defendants were found guilty – Kurds took to the streets in northern Iraq to celebrate. A decision to confiscate the assets of those convicted should mean their personal wealth is redistributed to the Kurdish communities they sought to destroy.

UPRISINGS TRIAL

A third trial, relating to the brutal suppression of mass Shi’a uprisings in the aftermath of the 1991 Gulf War, is expected to finish in the next month or two. Fifteen defendants including al-Majid are standing trial. According to observers, order has finally been achieved in the courtroom – it is even said that the presiding judge considers al-Majid a ‘model defendant’ because he asks legal questions and is generally courteous; a far cry from his behaviour during the Anfal proceedings. However, discipline in the courtroom is not equivalent to fairness and deep concerns remain over the conduct of this trial. In particular, its hasty commencement last August before investigations were complete, and the Tribunal’s refusal to delay proceedings, has clearly prejudiced the defence.

There has also been criticism of a decision to narrow the scope of the trial to events in Amara and Basra. This was clearly pragmatic – it was thought that more than a hundred defendants would be tried if all the related uprisings were included – however, it means linkage evidence necessary to establish command responsibility may not be presented.

At least four other cases are almost ready. They relate to the infamous gassing of Kurdish villagers in Halabja; the expulsion of Fayli (Shi’a) Kurds in the 1980s; the destruction of marshes relied upon by the Marsh Arabs; and the killing of eleven merchants. The last of these is politically significant because, although the crimes were comparatively small scale, the victims were Sunni and the Tribunal hopes this will counter Sunni perceptions that it is a tool of Shi’a and Kurdish vengeance.

SERIOUS FLAWS

There is no doubt that the Dujail trial was seriously marred by political meddling and a range of fair trial failings, including inadequate time for defendants to prepare their cases, and a lack of rigour in verifying the documentary evidence crucial to establish the guilt of Saddam and his co-accused.

However, the trial was not the complete train wreck many predicted. Most would agree that the standard of justice was an improvement on trials in the mainstream Iraqi criminal justice system. And despite enormous security risks, dozens of witnesses turned up to testify, allowing a detailed record of the killings to emerge.

Since Dujail, there have been some signs of progress. The judges have achieved authority in the courtroom and their skill in trying complex international crimes seems to have improved. And yet the remaining problems are grave. Political interference appears to be continuing – judges have been leant on by politicians to drop cases and initiate others for political purposes, and the chief prosecutor, Jaffar al-Moussawi, was recently removed after criticising the Tribunal’s ‘financial and ethical corruption’.

Many will maintain that Saddam and other senior Ba’athists should have been tried instead by an ad hoc international tribunal like those set up for the former Yugoslavia and Rwanda, however there was no support for this within the United Nations. And, the International Criminal Court cannot try crimes committed before 1 July 2002. Hence a more realistic criticism is that there should have been more international involvement in this Iraqi-led process.

While the original statute for the Tribunal allowed the appointment of international judges, the second statute restricted this to cases involving states; none have been heard yet, despite pressure from Iran and Kuwait. International advisers are also permitted but opposition to the death penalty by European and other countries means almost all such advisers have been American. The departure now of all but four of the American lawyers is merely the latest step towards the Tribunal’s international isolation.

The predictions are that the Tribunal will be wound down in the next year or two. Let us hope that the remaining trials receive the public attention they clearly need, from both human rights monitors and the international media.