[MUSIC]. 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. [MUSIC]
