Issue #9: Does the IST protect the basic right to the assistance of counsel?

Yes By Michael Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 107 (2006).

International law emphatically protects the right to the assistance of counsel in presenting a fair and full defense against criminal charges, and this right is embedded in domestic procedures around the world, to include Iraq. This basic right to counsel operates against the backdrop of two principles that are part of the legal framework for fair trials (and explicitly included in the IST): 1) the right to be presumed innocent until proven guilty in accordance with the law, and 2) the right not to be forced to testify or to admit the guilt of the charged offenses. In an internationally televised appearance of Saddam Hussein on television on July 1, 2004, an investigating judge informed him of a list of seven preliminary charges pursuant to the basic right of all suspects "[t">o be informed promptly of the detail, nature, cause and content of the charge against him" [Article 19 of the IST Statute">. At that time, there was no indictment issued against Saddam Hussein or any other defendant.

The work of the investigating judge at that early stage of the proceedings was centered on establishing whether a prima facie case existed against Saddam Hussein sufficient to warrant holding him under Iraqi legal control and custody. Under Iraqi criminal procedure law, as reflected in Article 18 of the IST Statute, an Investigative Judge may initiate investigations on the basis of information obtained from any source, particularly from the police, and any governmental and nongovernmental organizations. The Investigative Judge evaluates the information to decide whether there is sufficient basis to commence the investigation, and once an investigation has commenced, is empowered to question suspects, victims, or other witnesses as well as to issue sub poenas for documentary evidence related to the offenses under investigation. It is a crime under Iraqi law for any official or agent to extract evidence from an accused, witness, or informant "in order to compel him to confess to the commission of an offence or to make a statement or provide information about such offence or to withhold information or to give a particular opinion," and this provision applies to the work of the IST.

During the first appearance before the investigative judge, the IST Rules stipulate that the investigating judge must notify all suspects of the following rights "in a language he speaks and understands:"

i. The right to legal assistance of his own choosing, including the right to have legal assistance provided by the Defense Office if he does not have sufficient means to pay for it;

ii. The right to have the free assistance of an interpreter if he cannot understand or speak the language to be used for questioning;

iii. The right to remain silent. In this regard, the suspect or accused shall be cautioned that any statement he makes may be recorded and may be used in evidence.

Article 23 of the Iraqi Law on Criminal Proceedings requires that any statement of the accused to the investigating judge is recorded in the written record and "signed by the accused and the magistrate or investigator." Thus, every suspect (to include Saddam Hussein) who has appeared before the IST investigative judges to date has been notified of their rights to counsel and has acknowledged their comprehension of those rights in writing.

Apart from the specific admonition noted above to the suspect or accused that any statement may be recorded and used as evidence (which is acknowledged and signed by both the accused and the investigative judge), the IST requirements exceed many domestic statutes in other nations by requiring:

Whenever an Investigative Judge questions an accused, the questioning shall be recorded by audio, video, court reporter or by other means. The accused shall be informed that the questioning is being recorded. At the conclusion of the questioning the accused shall be offered the opportunity to clarify anything he has said, and to add anything he may wish, and the time of conclusion shall be recorded. The content of the recording shall then be transcribed (if done by audio or video) as soon as practicable after the conclusion of questioning and a copy of the transcript supplied to the suspect.

Of course, as would be expected, an accused may voluntarily waive his right to have legal assistance during questioning, but only if the Investigative Judge determines that the waiver is voluntarily and intelligently made. The Investigative Judge "shall not proceed without the presence of counsel" when questioning a suspect who has invoked the right to assistance. Furthermore, if a suspect has waived his right to counsel but then invokes that right, "the questioning should be stopped and never resume again until the defence (sic) be present." These provisions comport fully with the relevant human rights provisions and are in complete accordance with the practices of other international tribunals.

Posted @ 9:29 AM | Experts Debate the Issues: The Dujail Trial