In just a few months, five leaders of the genocidal Khmer Rouge regime will go on trial before the U.N.-established war crimes Tribunal in Cambodia (known as the ECCC). Case Western Reserve University School of Law's globe-trotting professor Michael Scharf and two of his students recently traveled to Phnom Penh to help the ECCC prepare for the historic "Killing Fields Trials."
Scharf, who directs the School of Law's Frederick K. Cox International Law Center and its War Crimes Research Office, has helped establish war crime tribunals in the former Yugoslavia, Iraq, Rwanda and Sierra Leone. He has beenassisted by third-year law students Margaux Day and Niki Dasarathy. The students spent six months (August through December) as legal interns at the ECCC.
The trials of the accused, allegedly responsible for the deaths of 1.7 million people, are set to begin in late January or early February.
Last summer, the International Prosecutor of the Tribunal Robert Petit of Canada asked Scharf to spend part of his fall sabbatical working with the Tribunal. The two met in 2006 when Scharf was in Cambodia to lead the first training session for the ECCC's judges, prosecutors and defense counsel. With the pre-trial proceedings ramping up, "this is a particularly critical time for the tribunal and your presence could make a huge difference to us," Petit wrote Scharf in June.
Specifically, Petit asked Scharf if he would draft the prosecution's brief in reply to the defense's motion to exclude joint criminal enterprise (JCE) liability from the Tribunal. Because it would be difficult to obtain convictions of the former Khmer Rouge leaders without this form of liability, "this could be the most important of the pre-trial decisions the Tribunal will render," Petit told Scharf.
Scharf arrived in Phnom Penh in early November with several binders full of Nuremberg-era cases and the relevant decisions of the Yugoslavia and Rwandan Tribunals and the Special Court for Sierra Leone. These were assembled with the aid of Case Western Reserve law students.
Scharf, Day and Dasarathy produced a 30-page brief by working around the clock for several weeks. Deputy Prosecutor Bill Smith of Australia said it was "one of the best pieces of legal argument" he had seen. The brief will be submitted to the judges before the court's December 30, 2008,deadline, and a decision should follow shortly thereafter.
Scharf is the only law professor in the world to have been invited to serve as Special Assistant to the Prosecutor of the Khmer Rouge Genocide Tribunal. In addition to drafting the brief on JCE liability, the prosecutor asked Scharf to provide a lecture to the entire staff of the Tribunal, including its judges and defense counsel, on "Avoiding Chaos in the Courtroom."
Nearly 90 members of the Tribunal attended the presentation, which was the subject of front-page article in the Cambodia Daily, the country's leading newspaper, on November 26.
"Members of the tribunal need to expect the unexpected, be prepared for disruptive defendants and defense counsel, and avoid inflating public expectations, as war crimes trials have traditionally been among the messiest of the great trials in history," said Scharf.
These themes are developed in Scharf's critically acclaimed book, Enemy of the State: The Trial and Execution of Saddam Hussein, published this fall by St. Martin's Press.
Scharf warned that maintaining control of the Khmer Rouge trials is likely to be especially challenging since the lead defense attorney is Jacques Verges. Verges is known for his unconventional defense tactics in a string of high-profile cases involving accused terrorists and war criminals.
When one of the defense lawyers in attendance asked sarcastically if the title of Scharf's book, Enemy of the State, referred to defense counsel, Scharf surprisingly answered that in a way it did. He proceeded to tell the story of how Saddam Hussein had threatened the life of the public defender, who had stepped in to give the closing argument for the defense when Saddam's retained lawyers were boycotting the end of his trial.
He described how Saddam roared at the diminutive Iraqi lawyer: "If you give the closing argument, I will consider you my enemy and the enemy of the state"— meaning that Saddam's followers who were watching the broadcast of the trial would have the lawyer killed. But Scharf told how the visibly shaken defense lawyer proceeded to give a four hour closing argument, which was good enough to acquit one defendant, led to relatively light sentences for three others, and a life sentence rather than death for one of Saddam's principal co-defendants.
Scharf noted that the British Bar Association nominated this brave Iraqi public defender, whose identity has remained a secret for his safety, for the prestigious "Rule of Law Award."
After a short stay in the United States, Scharf currently is in Kampala to help the government of Uganda establish a domestic war crimes tribunal and truth commission.
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