Hello, I'm Michael Scharf, welcome back
to International Criminal Law.
In our course so far, we've looked at the
definitions of international crimes, and
the challenges of bringing a perpetrator
to justice.
Now assuming that you do get an
international criminal perpetrator to the
courthouse.
Then the real fun begins, and it starts
with pretrial procedures.
In today's session, we're going to be
looking at self-representation, plea
bargaining, and the exclusion of evidence
as three of the most important issues
that come up in almost every one of these
major international criminal trials.
The objectives of our session are first
of all, to learn about the contours of
the right of self-representation.
This is something that almost every
dictator has wanted to do.
Or a tyrant, when they're on trial.
Their goal is to try to hijacked the
proceedings, and they do it through
self-representation.
Next we'll learn about the history and
application of plea bargaining to
international criminal tribunals, and the
differences between its applications in
the international sphere and
domestically.
And finally, we'll explore the rule
relating to the exclusion of torture
evidence, the exclusionary rule that
applies in international trials.
We're going to be using the simulation
that was in the assigned readings, and
which you all have been wrestling with in
the days coming following up to this
session.
So to remind you of the facts of the
simulation, we have two major indicted
war criminals, that had been brought to
the Hague.
One is Ratko Mladic, he was the Bosnian
Serb General.
Who used to be a regular Serb general,
and he was responsible the atrocities at
Srebrenica.
The other is fictional, and that is the
wife of Slobodan Milosevic.
Now, Mira Milosevic really exists as a,
real person.
And Slobodan Milosevic was indicted, and
prosecuted at the Hague, but he died
before his trial can be completed.
During that trial there was evidence that
Mira Milosevic was the madam, the Lady
Macbeth, of Slobodan Milosevic.
That he would not have been who he was
without her influence and her literal
control.
So in our simulation, we are assuming
that she has also been sent to the Hague.
now, everything in here is, is based on
fact, but that part is fictional, and so
there should be no liability for us using
that as part of our simulation.
Okay, what was the story behind the
reason the tribunal wants to prosecute
Mladic and Milosevic's wife Mira.
It starts out in June 1991, when Slovenia
and Croatia declare their independence
from Serbia, which had been weakened.
With the death of Tito a few years
earlier.
And Slobodan Milosevic, who had declared
the president of the former Yugoslavia.
of Serbia.
Was trying to strengthen his hold on
these other republics.
Now, in March, 1992, Bosnia had a really
difficult choice.
Do they join Slovenia and Croatia?
or do they stay what is becoming a Serb
ethnic dictatorship.
And they decided to do the brave thing,
they had a plebiscite and they decided to
declare independence.
But it was pretty obvious what was going
to happen, and that is in fact what
happened, and that is that they Serbs
aided the Bosnian Serbs, and the Bosnian
Serbs took over two thirds of the
territory.
By April 1993, the security council had
created the Yugoslavia tribunal.
And in May 1993, they had also, well
first, they had declared Srebrenica a
safe area.
And then they declared, the,
establishment of the Yugoslavia tribunal.
Well, declaring something a safe area is
not same as making it so.
And Srebrenica as we know from history
was not a safe area.
It was the place where the Bosnian Serbs
rounded up the Bosnian Muslims, and
systematically killed 6,000 men and
little boys and had them buried in mass
graves.
That's the crime for which these two are
being prosecuted today.
Now, in our simulation.
oh, and, and these are just maps, to show
you what's going on in Bosnia, so you can
understand the context.
So Bosnia is on the southern area of
Europe, it's in between Croatia and
Serbia, and if you look at the map on the
right you see the ethnic makeup of Bosnia
in 1995, when the Srebrenica massacre
occurred.
And what you see is the green areas,
which are the large cities, are where the
Muslims lived.
The red areas, which were more rural, is
where the Serbs lived.
And, the Serbs got together and basically
ethnically cleansed many of the cities.
And the arrow points to where Srebrenica,
which is like an island of Muslims
surrounded by Serbs existed on the map.
Okay.
So, let's talk about self-representation.
Why would Mira Milosevic want to
represent herself?
In our simulation packet, it says that
she wants to take control of her court
proceedings, like her husband did, and
like Seselj, another person who's been
indicted by the Yugoslavia tribunal and
has been prosecuted for the last couple
of years, has done.
She says she's going to prove through
self-representation that she is a martyr.
She's going to re-propagandize the
population and say that everything that
she and her husband did was appropriate
and legitimate and it was right.
And she is going to turn the proceedings
into a circus to show how unfair they
are.
She announces this all on the eve of the
trial, in her motion to represent
herself.
And the judges have to say hm, we know
her intentions, we know what she is going
to try to do, will we let her do it or
not.
Well, they've got some examples so they
can look at, some precedence for where
things can go horribly wrong through
self-representation, and the biggest one
is the Saddam Hussain trial.
Now technically Saddam was represented by
a lawyer throughout the trial, but in
Iraq they have a special rule that says
that.
When you are a defendant after your
lawyer is done questioning witnesses, you
are allowed to question the witnesses.
So, in other words under the Iraqi rule,
Saddam was his own co-counsel, he was
representing himself alongside his
retained council.
Now, what did he do during these cross
examinations?
He turned them into political speeches.
Instead of asking questions, he was
trying to justify what he did to the
population.
He tried to justify the war against Iran.
And most importantly, he tried to say
that United States were unlawful
occupiers.
And he did so in a very aggressive way.
He tormented the people he was cross
examining, he scared them because they
were always afraid of Saddam Hussein.
And can you imagine being confronted by
him in the courtroom, and this is what
Mira Milosevic wants to do during her
trial.
Well, if you are being represented by
counsel, there are ways the court can
control an unruly counsel.
Even one who wants to use the trial for
political reasons.
For example, a counsel can be told, if
you don't shape up, you're going to spend
the night in jail.
Or a week in jail.
These are things that high-paid lawyers
don't really like to do.
Or you can say secondly, we're going to
fine you, a lot of money.
And high paid lawyers don't like to lose
their money in fines.
And thirdly, we're going to have your
license revoked.
This is a little bit more difficult in an
international tribunal than it is in a
domestic proceeding.
Because the tribunal would then have
write a letter to the domestic bar that
the attorney is part of, and request
revocation.
And sometimes these domestic bars are not
as likely to follow what the
international tribunal does.
But still, you can see that between the
lawyer and the tribunal, the tribunal
holds the cards.
But what about when an individual is
their own lawyer?
Can you say we're going to throw you in
jail?
No!
They're already in jail.
Can you say we're going to fine them?
You've already taken their money away.
Or you're trying to find their money
because if they're found guilty they're
going to have to pay reparations anyway.
Can you revoke their license?
Now, this is interesting.
Many international perpetrators are
lawyers and some say, oh, what that just
shows how bad lawyers are.
The, all the people who'd been wanted for
genocide and crimes against humanity are
lawyers; therefore, lawyers are bad.
No, no, no, it doesn't mean that.
What it means is this.
In order to commit crimes against
humanity and genocide, you have to be a
political leader.
And most political leaders are lawyers,
because political legal training helps
them know how to work through the
legislature and, and the executive.
So, there's no real cause and effect
between being a lawyer, and being an
international criminal.
But there is a relationship that almost
everybody who's been prosecuted for
international crimes, is a lawyer, and
therefor they say, we should be allowed
to represent ourselves.
Article 14 of the Covenant On Civil And
Political Rights, which is the basic
human rights document that all the
countries in the world adhere to, says
that individuals have a right to defend
themselves in person or through legal
assistance of their own choosing.
This is very similar to the United States
Constitution, and all the countries in
the world are supposed to abide by this.
Well what does it mean?
Does it mean that everybody has an
absolute right to represent themselves?
If they choose.
Is it a right that cannot be revoked no
matter what they do.
Is it a conditional right if you abuse it
you lose it.
And what happens if the trial is so
complicated and your legal training
wouldn't equip you to deal with that?
Does the court still have to allow you to
represent yourself?
All of those questions have been before
the International Tribunals.
Trying to interpret this clause of the
Covenant On Civil And Political Rights.
So in the first case to raise this was
the Slobodan Milosevic case.
And the judge from the United Kingdom,
judge Richard May, ruled that
self-representation was an absolute
right.
If Milosevic wanted to represent himself,
he was allowed to do so, and nobody could
stop that.
Now, Judge May was a smart guy, and he
did something else.
He appointed some defense lawyers who
were very respected to be amicus counsel,
and their job was to point out to the
court things that Milosevic missed,
especially pretrial with regard to legal
issues.
These people were not Milosevic's defense
counsel.
They were helping the court make sure
that they didn't miss any defense
arguments, because Milosevic may not know
to raise them.
Now Milosevic did two things through his
self-representation.
One was, he abused it.
He was somebody who used cross
examination to make political speeches.
He terrorized the witnesses that he was
interrogating.
And he also tended to get very ill.
He had a heart condition, and apparently
he was manipulating his drug intake.
And so he would get sick.
His heart condition would be something
that would be of concern to the
international judges, and so his trial
began to just drag out.
And for those two reasons, the
prosecution said, we would like to have
standby defense council appointed, ready
to step in if Milosevic is too ill or if
he's too disruptive, or if he does a
boycott of his trial.
And the appeals chamber said.
You know what?
That's a good idea, however, you can't
just take away his right, of
self-representation, just because, you're
angry with him, for the way he's trying
his case.
For his minor disruptions.
they said that for major disruptions, it
might be possible, but there had to be a
calibrated and proportionate response.
In other words, taking away suffers a,
representation.
It's like, it's like the nuclear option,
and you don't jump to that when you have
other options.
Well, the Standby Public Defender is
probably the smartest thing they came up
with, and all the tribunals now have
that.
The reason it's a good idea is because.
Before you had a standby public defender,
if the defendant declared a walkout, or
if he was too sick because he was
manipulating his medications, as in the
case of Slobodan Milošević, the trial
would have to end.
With a standby public defender, you tell
the defendant, you can walk out, but
we're going to keep going with your
public defender.
Now the public defender is not a panacea,
it's not the perfect solution.
For example, Milosevic and Seselj, and
pretty much everybody who has been tried
and given one of these standby public
defenders has said, I refuse to cooperate
with the standby public defender.
Now, a defense counsel can only be really
effective if they're working closely with
the defendant.
The defendant can tell them the insights
of the case, the inside knowledge of the
witnesses and this will really help a
defense counsel prepare for a cross
examination.
If the defendant says.
I don't like you standby public defender.
I will not cooperate with you.
You're really putting the defense through
the standby public defender at a
disadvantage, and some countries say that
if a defendant says it is my strategy to
boycott the trial, then the defense
counsel has to say, well, I am an
instructed council I follow the orders of
the defendant, I am his mouthpiece with
legal training so I will boycott the
trial.
And the standby public defenders are put
there so that they won't boycott the
trial.
And so some countries said well that's
going to make.
Our lawyers who are involved in the case,
maybe as standby public defenders in a
lot of trouble.
In fact the first standby public
defenders were from a country where they
had this rule, and ultimately the
Yugoslavia tribunal said look.
You're in a different jurasdiction here
we have different rules.
Whatever rules you have at home don't
apply here, and you cannot be in trouble
for following our orders, our rules.
So the stand by public defenders have had
this role, but it's not been a perfect
solution.
Now, as part of our simulation we are
also looking at plea bargaining.
Before we get to that, let me just say in
the case of Mira Milosevic, where she has
said that if she does not give, get the
option of being able to represent
herself, she might go on a hunger strike,
or she might not cooperate with her
standby public defender.
This raises a lot of issues.
So, according to the Yugoslavia
tribunal's appeal chamber decision, you
wouldn't want to start right from the
beginning by saying you've lost your
right of self-representation just because
you've threatened to do bad things
pretrial.
You'd want to go calibrate it.
You'd want to go and, and make sure that
you don't go right to the nuclear option.
So you give her a warning first.
Behave yourself, if you did revoke
self-representation maybe you would do it
temporarily.
Maybe you would follow a three strikes
you're out rule.
But whatever you did, you'd want to
follow this calibrated approach so that
ultimately.
The biggest interest is the fairness of
the trial, including fairness to the
victims who want a trial to proceed
without being highjacked by a defense
council or a defendant who is bound and
determined to just be disruptive.
Okay, let's now turn to the second issue
in our simulation, and that is the plea
bargain issue.
The issue here is that this man who is
the general who actually perpetrated the
crimes, who actually ordered his troops
to kill 7,000 people has been given the
option for a plea bargain.
They say to him.
If you testify against Mira Milosevic and
you talk about the big policies she had,
the genocidal plans that Slobodan
Milosevic and she had for all of Bosnia.
We're going to, we're going to give you a
deal, we're going to give you some kind
of a, a plea bargain.
You won't have to do much time in jail.
And this might be something that he would
accept, because he's getting old.
He doesn't want to spend the rest of his
life in jail, and it's very hard not to
accept a, a plea in that situation.
Well, there were two main judges that had
to answer this question about whether
plea agreements would be used in the
international tribunals.
The first was Judge Cassese.
He was the first judge, the first
president of the Yugoslavia tribunal.
And he announced at the time that they
were creating the rules for the tribunal
that there would be no plea bargains.
He said, people who are accused of
genocide, the crime of all crimes.
Or crimes against humanity, or grave
breaches of the Geneva conventions.
Where there's a duty to prosecute.
They can not be subject to plea
bargaining, it would be anathema to all
that we stand for as a tribunal that is
trying to create a historic record, that
is trying to bring, bring peace back to
this troubled place, that is trying to
punish the perpetrators with something
that is so harsh that it will send the
signal, that others should not engage in
these acts.
So he said no plea bargaining, and that's
what the rules reflected.
A couple of years later, you know at the
time Cassese said that, there was only
one guy in custody, Duško Tadić, and the
likelihood of getting all 180 people that
had been invited by the tribunal was very
low, because the Serbs were still in
power.
But a couple of years later there were
changes and more and more the
perpetrators, some of them were Croatian,
some of them were Bosnian, some of them,
most of them were Serb, were being
surrendered to the tribunal or being
captured by the tribunal, or being
captured by the tribunal.
We know from the past session that some
of this was happening because of
abductions and luring.
And a lot of it was happening because the
international community was using
conditionality of financial aid to these
new countries that were coming out of a
transitional period.
So, basically when Slobodan Milosevic was
surrendered from Serbia to the Hague.
The international community gave a 100
million dollars to Serbia.
And that year he was the number one
export from Serbia.
By value of money, I mean literally.
So this is how these people ended up
going to the Hague.
Well, by the time judge McDonald, who's
an American judge, arrives as President
of the Tribunal and takes Cassese's
position, there is just a long backlog of
cases and all of these high-powered
people are just languishing.
In prison.
And so she said, look, in the United
States we do a lot of plea bargaining.
We're going to need to do plea bargaining
at the International Tribunal.
And so, she started to institute that.
Now, what are some of the objections that
the international community has to plea
bargaining?
Because the United States, it's true,
uses it at a very high level, but most
countries don't.
One is, that if a prosecutor gives you a
deal, those deals are really hard not to
take.
So, in this picture we have the
prosecutor saying, plead and get 5 years
or go to trial and risk 20.
And that's what you usually see in plea
bargaining.
A lot of innocent people would rather
take a small sentence, then risk, if
there's good circumstantial evidence,
going to jail for a long time.
So, one of the questions about plea
bargaining is, is it really fair?
Or doesn't it result in innocent people
pleading guilty?
Secondly the number of people in the
United States who are subject to plea
bargaining is now over 95%.
Most people don't know that, that in the
US, criminal trials are a rarity.
Most all the cases are decided by plea
bargaining.
And this seems to indicate that maybe
there's something wrong with the U.S.
System, where instead of proving guilt
beyond reasonable doubt in front of a
jury, where you have a historic record,
you are just doing these things behind,
behind closed doors with these kinds of
options that are not really options.
They're really coercive.
So this is one of the concerns of the
international community.
so, the pros and cons of the different
kinds of plea bargaining are important to
look at.
One kind of plea bargaining is called
Charge Bargaining.
In Charge Bargaining, the prosecutor will
say, you've been charged with genocide.
But we'll drop your charge to crimes
against humanity, if you'll plead guilty.
So let's look at the pros and cons of
that kind of plea bargaining.
The first is that if you are charged with
genocide and they give you a tiny light
sentence, that might violate the genocide
convention that says you have to be
prosecuted and given a serious sentence
commensurate with the seriousness of the
crime.
But if you drop the genocide charge.
There is no direct conflict with the
genocide convention.
what are the cons however?
Well, this kind of plea bargaining
encourages over-charging.
If you want someone to plead guilty to
crimes against humanity, you charge them
with genocide whether or not you think
you have the evidence to prove genocide.
Then the prosecutor can say, all right we
don't need to go to trial we'll make a
deal with you.
We'll drop genocide and only prosecute
you for crimes against humanity.
And the person may say, oh, okay, that
sounds reasonable.
Where in fact, the person really would
have never really been charged with
genocide if not for plea bargaining.
Now another problem is that it can
distort the historic record.
If you're charged with genocide, as Mira,
Milosevic would be charged.
Then the idea is to prove, through the
trial, how the government of Mira and
Slobodan Milosevic used genocide to
ethnically cleanse the Bosnians.
That it was their policy.
That it was their strategy.
And that this is unlawful.
And that this is punished, and that this
will deter others.
But if you just say, alright to Mladic,
make the deal with us and drop the, the
genocide charge, we're only going to
prosecute for crimes against humanity,
then it looks like Mladic wasn't involved
in genocide.
And whatever he says in his plea
agreement, which is going to be a scant
document, which merely reproduces sort of
the prosecutor's charges, and doesn't
flesh out all of his involvement, is
going to be something less than the true
and full story.
Now finally a negative aspect of charge
bargaining is that the prosecutor cannot
guarantee the sentence.
The prosecutor can say to the defendant,
all right we'll drop genocide, you'll
only be prosecuted for crimes against
humanity.
But that doesn't mean that the person
won't get a life sentence for crimes
against humanity.
Killing 7,000 people under crimes against
humanity is going to be seen by the court
as just about as bad as killing 7,000
people under the crime of genocide.
So, if you are a defendant and you don't
have a guarantee, why would you make a
plea agreement?
You'd rather roll the dice and go to
trial and see what happens.
So, the, the charge bargaining has a lot
of problems, and for that reason a lot of
people think that there ought to be,
sentence bargaining instead.
so, here we have, an example of one of
the cases, where charge bargaining, was
so problematic.
This is case of Plavsic, she was the
Deputy to Karadžić, the leader of the
Bosnian Serbs.
And she, was held charged, with genocide
right along with Karadžić.
So, she goes to trial, and she says I
want a plea agreement.
And they give her one.
A charge bargaining agreement, just like
we've been discussing.
They drop genocide.
Instead, she ends up getting a ten year
sentence, in a fairly nice, dorm-like
Swedish prison, which has.
As part of it, a riding paddock, a big
screen TV and other amenities that you
normally would not get if you were tried
and convicted.
But she was able to negotiate this in
order to be prosecuted.
Now most people thought that when she
made this plea agreement, not only would
she plead guilty and save the
international community the trouble of
having a two or three year long trial,
that would cost $100 or $200 million.
But that she would also plea and, and
testify against Milosevic, and Karadžić,
and some of the other people that would
come to trial.
And in fact she never has testified
against anybody.
And she's been let out of jail for good
time served and being a model prisoner,
and she's now a free woman who's gotten
away with committing genocide.
And has done a very small punishment for
crimes against humanity.
So let's look at the option of sentence
bargaining.
This is the alternative to charge
bargaining.
In sentence bargaining the individual
says, look I not comfortable with just
dropping the charge.
You know sure I don't want to be called a
genocidal perpetrator, but I want to know
for a fact what my charge my sentence is
going to be.
So lets just bargain on the years.
So the first thing is, you get a more
definite promise.
the prosecutor can say, all right here's
the deal.
We'll give you five years in prison if
you testify.
If you say you're guilty.
If you spare the necessity of a long
trial.
Now it is true that the judges can
overturn the bargain if they don't think
it's fair, but if they do the defendant
has the option of also erasing the
bargain and going to trial.
So, for the defendant this is more
definite.
This is definitely the way they want to
go.
also, this will produce a more accurate
record, because the plea will be a plea
of guilt to all the crimes charged.
Genocide and crimes against humanity, and
therefore it won't erase or distort the
historic record by erasing one of the
charges.
What are the cons?
Well the biggest one is that, if you are
charged with genocide and you get five
years, this sends all sorts of wrong
signals.
It says people who committ genocide are
just going to be given a token sentence.
And therefore, there's a lot of
squeamishness in the international
community with sentence bargaining.
But of the two kinds of plea bargaining,
most experts believe that sentence
bargaining is more appropriate for
international trials.
Now let's turn to our third pretrial
issue, and that is the question of
exclusion of evidence.
Now in most countries especially those
with a jury there are rules for the
exclusion of evidence.
In the United States this comes up a lot
with respect to the Miranda warning, and
that's something that says if someone
isn't given their full rights when
they're arrested.
The confession that they give afterwards
has to be excluded, because it's likely
to not be admissible for a variety of
reasons, in terms of its reliability,
whether it's coerced, and others.
So, in the context of torture evidence,
the international community has created
an international version of this
exclusionary rule.
And the rule goes back to, sort of the
story about why torture is unlawful and
why evidence from torture should be
excluded.
The history goes back hundreds of years.
In fact, in the early years of trials,
including those between the star chamber
in the United Kingdom, people who.
Confessed, always did so, because of
torture, and that evidence was always
used in court.
In fact, what the king would say is go
and find the person, force him to
confess, then bring him to trial and
we'll be able to, to execute them.
But in years later, the international
community realized that this approach to
allowing torture evidence to come in was
anathema to the whole idea of excluding
torture itself, of prohibiting torture.
And so, in these years, while they
negotiated the torture convention, which
was put into force in 1994, and most or
many countries in the world are now party
to it.
Although as we saw in a previous session,
many of the countries that frequently
resort to torture, have not ratified it.
The convention drafters decided when they
were prohibiting torture and saying that
those people who commit torture would be
prosecuted, to also put a clause in that
said that any.
Testimony that resulted from torture was
excluded from any criminal proceedings.
and it would be against the individual or
against other people, because they really
wanted to make sure that there was no
encouragement for torture.
So what are the reasons for this
exclusionary rule?
The first one is, that torture evidence
is inherently unreliable.
There's a famous story about Senator John
McCain, who was a fighter pilot during
the Vietnam war.
He was shot down, the Vietnamese captured
him and they subjected him to awful forms
of torture.
And they kept saying over and over again,
tell us the names of your other pilots,
the other people in your squa, squadron.
We need to find them.
We need their names and instead he gave
them the names of the Green Bay Packers,
which had just won the Super Bowl, their
starting line.
offensive line, and they didn't know,
apparently they didn't watch TV back in
Vietnam in, in that period of time, and
so they didn't know.
And in, in other words this information
came in and it's like often happens with
torture.
People will say anything while they are
being tortured but much of what they say
isn't reliable.
And what that can happen with that in, in
the case of modern day anti terrorism is
that you get so much information.
Through, enhanced interrogation, that
isn't reliable that you don't know how to
determine which is and which is
unreliable, and you could spend so much
time pursuing false leads that you never
have time to actually find the real
story.
Okay, a second reason.
Why torture evidence is excluded is
because it would deter people from
committing acts of torture if they knew
that their case against the person was
being tortured would have to be thrown
out of court.
Why would you commits these acts to tried
to get confession if you knew from the
beginning that the confession couldn't be
used.
So this was a great way of trying to
deter people from committing torture by
excluding the fruits that they would get
from those interrogations.
And then finally, it would protect the
integrity of the judicial process in
general.
And courts have a supervisory authority
in which they do not want to be tainted
along with the people who are the police
officers that work with the prosecutors
that bring the cases before them.
So by saying, we're not going to allow
any torture evidence to be before our
court, it keeps the court above the kind
of dirtiness that would taint it if they
allowed the torture evidence to come in.
So, they, the negotiated this
exclusionary rule, and it's been applied.
And what we're going to do is apply it
now to, a case that's really an unusual
case study, one that will test the entire
concept of this exclusionary rule, and
that is what happened at S-21.
Alright.
So, here's a picture of S-21.
This is in Cambodia, during the Khmer
Rouge reign from 1976 to 1979.
This was a period of time when Pol Pot
thought that the Khmer Rouge was infected
with CIA and Vietnamese spies.
And so he took all of the people that
were suspected of possibly being spies,
he rounded them up, and he took them to
S-21.
S-21 had been a regular high school, but
it had been converted into the world's
worst torture chamber.
And the people who went there were often
subject to the most heinous types of
abuse you can imagine, and almost
everyone of them confess that they were a
Vietnamese or CIA spy.
So, they were kept together in these
areas that had horrible conditions,
chained like slaves in the old slaving
ships
This is an actual picture from the museum
that still exist today, you can go and
visit it in Phnom Penh and it's been
maintained exactly like it was the day
the Vietnamese liberated this torture
camp.
And what they found were these beds with
manacles and torture devices, and
bloodstains and, and brain matter, and
all sorts of horrible things on the walls
of these rooms.
And, and you can still go there and you
can feel the repressive nature of this
place.
Okay, so.
Why would anybody want to use the
evidence that came from, from this S-21.
Well the reason has to do with the
situation in Cambodia and that is this.
The Khmer Rouge was really good at not
documenting the chain of command and
their orders.
So, there wasn't available to the modern
day Cambodia tribunal the kind of
evidence that the Nazis had left or that
other war criminals like Saddam Hussein
had left behind, and in order to prove
command responsibility which we've
covered in this session.
In this class and also joint criminal
enterprise they needed to show the chain
of command.
Well what happened at S-21 is that each
and every person who was brought there,
would be asked a series of questions
about who they worked for.
Where they worked, who worked with them.
They're biographical questions and the
answers to these questions 17,000 times
over.
Created a group of documentation that the
prosecutors could use to show the whole
network of the Khmer Rouge.
Who worked for who, who called the shots,
who followed the orders.
And therefore, this information was
something that would be very important to
use in their trials.
So there's a host of possible exceptions
that the prosecutors considered using in
Cambodia to try to allow this evidence to
come in.
And we'll be looking at some of them
today.
one is the difference between torture.
And cruel, inhuman, and degrading
treatment.
The torture convention, in Article 15,
only prohibits the use of torture
evidence.
And as we've seen earlier in our course,
some things that don't rise to the level
of torture therefore do not trigger the
torture Conventions exclusionary rule.
we'll be looking at the analogy to the
Miranda bookings exception, something
that is used in the United States under
the Miranda warnings.
We'll be looking at the necessity
doctrine.
And we'll be looking at the Silver
Platter Doctrine.
And finally we'll be considering an
extended exception for crimes against the
torturer.
Now let's look at Article 15 very
closely, so we can see what the article
covers and what may be excluded from it.
Article 15 of the convention.
The torture evidence exclusionary rule
says that each party shall ensure that
any statement which is established to
have been made as a result of torture,
shall not be as invoked as evidence in
any proceedings.
Except, and this is the most important
part.
Except against a person accused of
torture as evidence that the statement
was made.
Okay.
Let's apply it now to our simulation.
The first simulation, involving torture
evidence, is the question of self
incriminating statements that were made
just prior to torture at S-21.
So let's say that an individual is not
yet being tortured, but they're about to
be.
And they say things that are going to be
incriminating to them.
they say, yes they were a member of the
Khmer Rouge they say that they were a
commander.
They say things that can be used against
them.
But, this did not occur during the actual
torture.
It occurred.
Just prior to the torture.
Should that come in?
Well let's think about the possible
exceptions as applied to that
hypothetical.
One is they weren't actually being
tortured yet.
These were biographical questions like
Miranda booking questions, where the
person was being asked just questions
like, where do you live, who do you work
for, who do you work with, and they were
not yet subject to torture.
So, the argument would be that the
torture exclusionary rule only applies
once the torture begins and not prior to
that.
These may be cruel and humanly degrading
circumstances, but it is not yet torture.
Now here is the problem I have with that.
I have been to S-21, I've seen these
rooms.
Anybody who was hauled there knew the
rumors.
They knew that they were going to be.
Heinously tortured and ultimately killed.
And so any questions that you ask
immediately prior to that, it would be
hard in my mind to separate that from the
actual torture.
So that to me is a difficult case to
make, however the Cambodia tribunal
itself has made that case and it has
ruled that if it wasn't actual torture,
if these were, pre-torture discussions,
questioning, they do not come within the
Exclusionary Rule.
Interesting, interesting ruling.
another way they could have, run with
this, was to analogize it to the Miranda
Bookings Exception.
Now here's how it works in the United
States.
In the US you have this, Miranda,
warning.
An if you're not given it, if you're not
told that you have the right, to remain
silent, the remight, the right to a
lawyer.
That anything you say can be used against
you.
that if you can't afford a lawyer, one
can be given to you free of charge.
If you're not told those right, then your
confession, that occurs during an, a
custodial interrogation, has to be thrown
out.
But there is an exception to that rule,
and that is if you go to the police
headquarters, and they immediately, you
know, start to book you.
They, they fingerprint you, and they ask
you what's your name, and where do you
live, and how old you are.
And you blurt something out that's
incriminate, self incriminatory.
That evidence is not considered to be
part of the in, custodial interrogation.
And it comes with an exception.
Now, another possible exception that
could apply, is the Necessity Doctrine.
In other words, if the Tribunal has no
other evidence of the chain of command,
but this evidence that came out of these
a, these interrogations that predated the
torture, these interrogations where
people were asked about who they worked
for and who worked with them, then the
Necessity Doctrine might apply.
Now again, the Torture Convention
excludes the Necessity Doctrine for
actual torture, but if this precedes the
torture, and it's therefore just cruel
and inhuman degrading treatment, then it
could come within the Necessity Doctrine.
And then finally, is this ideae of a
Silver Platter Doctrine.
This is the question of why do you have
the Torture Exclusionary Rule?
You do it to deter torture by your own
people, by your authorities.
You cannot deter other authorities from
committing torture.
So, there was a famous case where the
United States subjected some people in
Guantanamo Bay to extraordinary
interrogation.
Tactics which may have risen to the level
of torture.
And then they were going to be prosecuted
in the United Kingdom, or they were
going, this, this information was going
to be used against a, person in the
United Kingdom that would be denied
immigration status.
In either case the United Kingdom,
considered this issue, and they decided
that, it is not the case, that this is
just being given to them on a silver
platter.
Even though, they can't deter the
American authorities, they still are not
going to allow, the evidence to come in.
An this is because the Torture Evidence
Exclusionary Rule doesn't just have, one
prong behind it, the deterrent prong, but
it has other prongs, including re,
Unreliability.
And most importantly, tainting the
judicial process.
So, under the UK's approach, which isn't
the approach to all countries.
And, in fact, the United States does
have, in its approach, a silver platter
doctrine.
If evidence comes in from another country
or if evidence comes in from non police
officers.
It doesn't matter.
What violations there were, if there
wasn't a search warrant, if the person
was coerced, if they weren't read their
rights.
None of that applies, it comes in on a
silver platter.
So, this doctrine could have applied, but
it's not the one that the Cambodia
tribunal looked at, and there are
possible abuses.
If you allow the silver platter doctrine
to come in, because although you can only
deter your own nationals, your own
authorities from committing torture, but
what signal are you sending.
You are sending a signal to the whole
world, well everybody can torture and
we'll use your evidence.
And so, that really does undermine the,
the concept of deterrence that's in the
torture convention.
So, finally, should there be an expanded
exception for crimes against the
torturer.
And here this goes to the question of
whether the Torture Evidence Exclusionary
Rule exception for using evidence to
prove that the torture occurred in a case
against the torturer should be expanded
more broadly.
Now, let's look at this very carefully.
The exception was there to prove that if
somebody committed an act of torture, and
the only evidence that they were the
torturer was the actual documents that
came from the torture that that shouldn't
be excluded.
If we allow that exception to also say
that anytime a torturer is on trial
whatever comes out of the torture session
that implicates the torturer is allowed
to come in, we would in fact be blowing
up the entire exclusionary rule.
And, in particular that's a concern when
they're self incriminatory statements.
As in this case, where the, the person
who was giving those statements were
making self incriminatory statements
because, again the torture convention
exclusionary rule was really put there to
try to prevent the evidence of torture
from being used.
So as not to encourage people to commit
torture.
Let's look at the hypothetical that
you've been wrestling with this week.
And that is, what if there were
statements made.
By the person who's being tortured that
implicates one of the leaders of the
Khmer Rouge who are now on trial.
Could those come in?
And there, you might have a better case
under some of these exceptions.
So here, we have a picture of, of someone
who's being tortured.
He's having his fingers, squeezed with
pliers.
And then, on the right side, you see the
actual.
Co-defendant one of the people that are
being tried before the Cambodia tribunal,
even as this course moves forward.
So, let's look at the possible exclusions
or exceptions to the rule as applied to
this hypothetical.
first, the silver platter doctrine.
Okay, so the evidence came in because the
Khmer Rouge themselves did the
interrogation, but now it would be used
by the Cambodia Tribunal, which is an
international tribunal made up of
international civil servants.
Shouldn't they be allowed to use torture
evidence, no matter where it came in, as
long as they were not involved in
torture?
And again, this brings the question up.
Between the dichotomy of the U.S.
Approach where there is a silver platter
doctrine and the U.K.
Recent precedent that said it should not
be allowed in cases of torture.
What about an expanded exception for
crimes against the torturer?
Here it's not self incriminatory.
These are statements that are going to
incriminate the person who's being tried
for the acts of torture.
Now, the difficulty here is, this isn't
the actual jailer who is, you know, the
person who was doing the pliers to the
persons fingers.
He's not being tried.
And it's not the camp commander.
It's someone up three levels.
It's one of the, the leaders of the
entire Khmer Rouge.
And the person may be indirectly
responsible for creating the camp.
And the conditions in which this torture
flourished.
But it's not this type of situation that
was contemplated by that exception.
Should the exception be generalized to
say that the evidence of torture can
always be used against the person
involved in that torture?
And you could argue that this would be a
deterrent, because people who commit
torture would know, not only that the
evidence couldn't be used against Other
people.
But it would always be used against them
if they were ever prosecuted.
And this is an interesting concept, but I
think it's not grounded in the
legislative history.
The negotiating record of the torture
convention's exclusionary rule.
It'd be a large step to take, and perhaps
a step too far.
It's not the step that the Cambodia
tribunal has taken.
Okay.
So, let's put it all together.
What we've seen today.
Is that, international criminal law.
Once you get the individual to the court
house.
The individual starts with a lot of
pretrial proceedings.
The first one, almost always is, the
individual says.
I want to represent myself.
And we looked today at the pros and cons
of that, and how the court should deal
with that situation in a proportionate
and calibrated way.
Second, the individual is often going to
want a plea agreement.
They're going to say look I can save you
a lot of time if you just let me plea,
maybe I'll testify against another
person.
And in the context of international
criminal law.
Those plea agreements are fairly
controversial.
Because of the heinous nature of the
crimes, that the person has been charged
with.
So we've explored the pros and cons of
plea agreements.
And in particular, the pros and cons of
the different kinds.
Charged bargaining versus sentence
bargaining.
And finally we've looked at a really
difficult issue.
That is, can torture evidence ever be
used, even in a case where it would
implicate the very torturers.
That is an issue that is currently being
tried.
It's pending over at the Cambodia
Tribunal in Phnom Penh.
So far, the Cambodia Tribunal has ruled
that the torture evidence can come in,
because it was biographical information
that was given before the actual
commencement of the torture.
This is a fairly controversial question
and it's one that we're likely to see
repeated.
In other jurisdictions.
Next class, we're going to move from
these pretrial issues to the actual
conduct of the trial.
And in particular, we're going to look at
what happens when a tyrant is on trial,
who doesn't want to play by the rules,
and wants to use the court for something
other than a judicial institution, to
propagandize the population to become a
martyr and to be disruptive.
And so, next session do the readings and
come prepared for the simulations on
disorder in the court, maintaining
control of the courtroom.
I'm Michael Sharp and this has been
international criminal law.
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