We are writing this public letter to express our concerns arising in the Anfal trial. We hope the shortcomings identified below can be rectified to bring this trial into compliance with internationally recognized fair trial standards. Fair trials are instrumental to providing justice for victims and their families and will play a crucial role in ensuring that the brutal practices of the past regime are not repeated.
Specifically, we are concerned that the charging instruments issued against the six defendants in the Anfal trial are vague and thereby violate the defendants’ right to be informed of the charges against them. We raised similar concerns with respect to the Dujail trial in our report on that proceeding and hoped the problem would be resolved. So far, no corrective action has been taken. In addition, we are concerned that the unavailability of a significant portion of defense witnesses will severely curtail the defendants’ right to an adequate opportunity to present their case.
Defects in the form of the charging instruments
Pursuant to article 19(4)(a) of the IHT Statute and article 14(3)(a) of the International Covenant on Civil and Political Rights (ICCPR), a defendant has the right to be informed “promptly and in detail of the content, nature and cause of the charge against him.” This requires that the charging instrument contain sufficient information about the material elements of the case alleged against each defendant to allow them to prepare an adequate defense to the charges.
In order to effectively prepare a defense, the defendant must be able to determine the type of criminal liability to be applied against him, and what facts will be proved in order to sustain that theory. Thus, at a minimum, the particular nature of the defendant’s responsibility (for example, as a planner, commander, instigator, or aider of the crime) must be clearly identified, and the defendant must be given a concise statement of the material facts that will be used to establish the defendant’s specific mode of responsibility.
Disclosure of the dossier of evidence, in itself, does not give the defendants sufficient notice of the charges against them. Because the dossier is not tailored to each defendant, it does not inform the defendant of the material facts related to his role that will be proved at trial.
The charging instruments issued against the defendants on February 20, 2007, contain insufficient material facts of the case alleged against each defendant. For most of the defendants, insufficient information is provided regarding the basis of their individual criminal responsibility for the crimes committed. Generally, this is due to inadequate clarity over the facts the prosecution intends to prove relating to their position of authority during the Anfal campaign and how they fit into the overall chain of command during this campaign.
Charging the defendants with all forms of criminal responsibility listed under article 15 of the statute creates further problems for the fair and expeditious conduct of proceedings in the Anfal trial. Although the court is not limited to charging defendants with only one form of criminal responsibility, charging all defendants with all forms of criminal responsibility recognized under article 15 makes it difficult for defendants to prepare a meaningful defense in the limited time allotted.
Moreover, the charging document fails to provide sufficient notice of the facts that will be used to support the theory of criminal liability. Each form of criminal responsibility being alleged requires proof of separate and additional material elements. For example, charging a defendant with command responsibility under article 15(4) of the statute requires proof of three elements: the existence of a superior-subordinate relationship; that the superior knew or had reason to know that the criminal act was about to be or had been committed; and that the superior failed to take necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. The charging instrument issued against any defendant must therefore include a summary of the material facts presented to substantiate each element. Similarly, the charge of joint criminal enterprise requires the pleading of additional facts regarding the nature of the enterprise and of the participants, as well as the form of joint criminal enterprise alleged against the defendant.
From the information provided in the charging documents, many defendants are unable to determine what form or forms of criminal responsibility are being alleged against them and what facts have been used to establish such responsibility. For example, the charges against defendants Sabir Abdul Aziz al-Duri and Farhan Mutlak al-Jubouri merely state that they “deliberately participated” or “intentionally participated” in killing Kurdish civilians and directing attacks against them. It is unclear whether the facts set forth regarding their role in such attacks are intended to establish their direct responsibility, their participation in a joint criminal enterprise, or their command responsibility for the crimes committed.
By charging the defendants with all forms of criminal responsibility and failing to specify the material allegations intended to establish each form of responsibility, the defendants are unfairly prejudiced in their ability to prepare their defense.
We would therefore urge that efforts be taken to ensure that the judges and prosecutors of the IHT understand the importance of sufficiently-pleaded charging instruments and of the relevant case law on this issue. We hope that in the future, the court will provide more details in the charging instruments on the nature of the case being alleged against each defendant, especially with regard to the alleged authority and role of each defendant in the crimes committed.
Ensuring that defense witnesses can testify
A further threat to the integrity of proceedings relates to the availability of defense witnesses during the recently-commenced defense phase of the Anfal trial. Article 19(4)(e) of the IHT Statute guarantees the right of the defense “to call and examine defense … witnesses, and to present any evidence in his defense in accordance with the law.” Article 14(3)(e) of the ICCPR also guarantees the defendant’s right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” Affording defendants the opportunity to call witnesses and obtain testimony under the same conditions as the prosecution is essential to a fair trial. It is imperative that the judges of the IHT fully uphold this right during the Anfal trial and future trials.
Our understanding is that many witnesses that defendants wish to call are unwilling to come to Iraq to testify because they fear arrest. Failure to obtain the testimony of key defense witnesses threatens to undermine the fairness of trial proceedings. In this regard, we would draw attention to the Human Rights Committee’s decisions interpreting ICCPR article 14(3)(e), noting that in death penalty cases, the court’s requirement to make every reasonable effort to obtain material defense testimony is of even greater importance.
We would therefore urge the court to allow efforts to obtain safe passage of defense witnesses for the limited purpose testifying in the Anfal trial. This would be consistent with the Rome Statute of the International Criminal Court (article 93(2)), as well as the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY), which has allowed judges to grant safe-passage agreements for the purpose of obtaining witness testimony since the first case before that tribunal.
Should this prove to be infeasible for reasons beyond the IHT’s control, we urge that the court provide defense witnesses the opportunity to testify through video-link. Since trial judges would retain as much control over testimony given via video-link as with live testimony, affording this opportunity to the defense is essential to safeguard the rights of the defense while protecting the integrity of proceedings.
Although such measures are not strictly required under the IHT Statute, the ICCPR or other sources of international law, we urge the court to make every effort to pursue these options. Doing so is critical to protect the overall fairness – and the perception of fairness – of proceedings in a trial of the utmost importance to the Iraqi nation and its people.
Adherence to fair trial rights in these highly public trials plays a crucial role in building firm respect for the rule of law. Full protection of the rights of the defendants – something sorely lacking under Ba’ath Party rule – is needed for Iraq to be transformed into a society where there are fair trials that respect human rights.
International Justice Program