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Old 09-12-2008   #1
Rex Brynen
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Default Iraqi Legal Database

The UNDP and Iraqi High Judicial Council have assembled an online database of Iraqi laws that may prove very useful:

Quote:
The Iraqi Legal Database (the “ILD”) is now available online at http://www.iraq-ild.org. The database makes available to users (free of charge) all Iraqi laws, regulations, constitutions, orders, etc. from 1917 to 2008. This is the first time that this has been done in Iraq, and represents a massive advance for the rule of law and for transparency in the administration of justice generally speaking.

The ILD was created by UNDP in collaboration with the Iraqi High Judicial Council. UNDP has already commenced work on an updated version of the ILD, which will contain a number of fundamental improvements, and will include twice as much data (including court decisions and legal opinions). That version of the ILD will be completed in 2010.
The website is in Arabic only, however.
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Old 12-23-2009   #2
Hugh Davis
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Thanks, Rex.

By the way, It looks like the Google toolbar can translate this site to English.

That ought to be interesting to read. I'm trying to learn Arabic, but it's going to be awhile before I consider myself competent to read the language.
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Old 12-28-2009   #3
OccamsRazor
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Great resource, and a great step in transparency.

What's still amazing to me is that there is no "standard" of proof in Iraqi law. For example, in criminal courts in the US, a prosecutor has to prove "beyond a reasonable doubt" (around 80%) that the defendant committed the crime. In a civil case, the standard is simply a "preponderance of the evidence" (51%). This essentially acknowledges the realistic fact that evidence might not prove someone definitely innocent or guilty, but that as a society, we are willing to accept these various levels of proof, and the risk of erroneous judicial decisions that result. The flip side is that it codifies the standard, which increases reliability.

In Iraqi law, you are either guilty, or innocent. It's black or white. I had the opportunity to speak with the judge (Ra'id Juhi Hamadi Al-Sa'edi) that presided over the trial of Saddam Hussein (at great risk to his own life), and the topic came up. I don't get the sense that the standard was "100%" (e.g., the evidence proved with complete certainty that you were guilty), but rather that it was largely left up to judicial discretion.

Here's an example. In a US criminal court, if the prosecutor proved 65% that the defendant was guilty, you'd be let off (as the standard of proof is higher). In Iraq, if the judge thought you were guilty, you'd be behind bars.

Sorry for the off topic rant, but it's a random fact that I learned and continues to amaze me. On a side note, Ra'id Juhi Hamadi Al-Sa'edi is an impressive man, and made with a strong moral fiber. While the system is very different in Iraq, the rule of law is continuing to progress.
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Old 12-28-2009   #4
jmm99
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Default Standards of proof

In US law, we have three basic standards:

1. Preponderence of the evidence - 50 yds and a nose.

2. Clear and convincing evidence - reasonable field goal range (which depends on the kicker).

3. Beyond a reasonable doubt - red zone with momentum.

Once I was summing up a pro bono defense to the jury, and used the analogy that beyond a reasonable doubt was touchdown time. The judge broke in, saying: "Mr McCarthy, I can't let you get away with that one. But, I'll accept first and goal on the nine." The jury laughed and I got on to the real test for beyond a reasonable doubt.

Reasonable doubt exists where a reasonable explanation, based on the facts, can be advanced consistent with the defendant's innocence. It's then up to the prosecutor to beat down each such reasonable explanation. It is not up to defendant to prove that reasonable explanation (by a nose or otherwise) - which is what the presumption of innocence is all about.

I expect you will find something in the Iraqi Code (or in the commentaries on the Code) dealing with proof standards in civil and criminal cases. I'm not a SME in that area.

Regardless of the standard which should be applied, more depends on the judge or jury you happen to have. E.g., compare the decisions by Judge Kessler (this post in War Crimes, and also here and here) and Judge Hogan (this post in War Crimes), where different results were reached on similar evidence.

Though both judges were in theory applying a preponderence of evidence standard, Judge Hogan's decision seemed to me to be more based on 50 yds and a nose; but Judge Kessler's decisions were more to require the clear and convincing evidence range (or even tending to the beyond a reasonable doubt range).

From our (US) standpoint, the real, live decision-making process by the Iraqi courts is of more importance than the paper rules. We have had two instances of detainees (in fact, non-innocents) being shot after capture (outside of a firefight), where at least one factor in the decisions to shoot was a percerption by our troops of the "revolving door" of Iraqi justice; that is, where detainees taken by US troops were often freed on technicalities. A similar situation seems to have been present in the Astan incident involving CPT Chris Hill (where no one was shot).

A bit rambling, but the quality of local justice (as actually applied) is a very important consideration in developing appropriate military and legal doctrines in the "small wars" arena.

Regards

Mike
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Old 12-28-2009   #5
OccamsRazor
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I'm certainly not a SME in any of this, being a mere law student, but he was asked a direct question about the standard of proof used in Saddam's trial, and he simply replied that there was none - the defendant is either innocent or guilty. Perhaps something was lost in translation, but he seemed to know exactly what we were talking about.
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Old 12-28-2009   #6
jmm99
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Default Not an Iraqi Code SME either, but ...

The Iraqi judge's statement seems correct in one way, but incomplete. Legal stuff (and governance issues in general) are difficult unless discussed in a common language.

Anyway, re: Saddam's trial, I Googled up Did the Dujail Trial Meet International Standards of Due Process ?, which has this to say:

Quote:
While Far from Perfect, the Saddam Trial Was Not Fundamentally Unfair
By Michael P. Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 162 (2006).
....
Not an American Court

But we also have to keep in mind that this is not an American court. Although the Iraqi High Tribunal Statute and Rules adopt the fundamental due process safeguards enumerated in Article 14 of the Covenant on Civil and Political Rights, they also make clear that the Tribunal is to be governed by Iraqi Criminal Procedure, which is based on the civil law model prevalent in the Middle East. While we may not be accustomed to a system that does not provide for disposition of preliminary motions until the final Judgment, that allows the defendant to conduct cross examination along side his lawyer, or that issues a detailed charging instrument at the end of the prosecution’s case -- that does not mean the IHT process violates international fair trial standards.

Take, for example, Professor Heller’s assertion that the trial is unfair because the Tribunal’s Statute does not require the Court to find Saddam and his co-defendants guilty “beyond a reasonable doubt.” Instead, Article 19 of the IHT’s Statute merely provides that “the accused is presumed innocent until proven guilty before the Court.” Although the Statute does not spell out the test for proving guilt, the Statute must be read together with the Iraqi Criminal Code and practice, under which a Judge must be “satisfied of a defendant’s guilt” -- the traditional standard which civil law judicial systems (like France and Holland) employ, and a phrase that the IHT judges told me is functionally equivalent to the American “beyond reasonable doubt standard.” It should also be noted here that the U.S. Supreme Court has refused to define what “beyond reasonable doubt” means and has held that American courts do not have to provide any definition of this amorphous phrase in their instructions to a jury in a criminal case. See Victor v. Nebraska, 511 U.S. 1 (1994).
Cf., my reference in my prior post to the interplay between "beyond a reasonable doubt" and thev "presumption of innocence".

Best I could do via a rapid search - "iraqi criminal code" "reasonable doubt".

Regards

Mike

PS: Don't pull that "mere law student" stuff again. If you are engaging in a lawyer's argument, make that argument - whether you are a lawyer or not.
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Old 12-29-2009   #7
OccamsRazor
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Interesting. The article is largely consistent with our conversation, although there was no mention of a correlation to beyond a reasonable doubt. It almost seemed as though there was a binary process, which was a mindset that I had trouble understanding. Indeed, it was as if there was just some mythical, undefined point at which the judge would arbitrarily be convinced of guilt - all or nothing. While I understand that reaching beyond a reasonable doubt is still highly subjective (as you convincingly previously elaborated on), the Iraqi system makes more sense knowing that there is a standard and known tipping point of guilt, which makes it not so different after all.

P.S. The student statement was not meant to take away from the validity of my analysis (given the knowledge I possess), but rather to raise a flag that not all requisite data (significant gaps in knowledge) may be available. Indeed, I probably know just enough to sound convincing, but I also run a reasonable risk of being convincingly wrong . It seemed appropriate to say so. I do see your point, though, and the observation is noted.
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Last edited by OccamsRazor; 12-29-2009 at 03:58 PM.
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Old 12-29-2009   #8
jmm99
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Default How cases are really decided

Quite some years ago, a rather famous judge was asked about his process in deciding cases. He said he read through the briefs and record; then put them on the shelf for a while. He then went back and read them again; and again put them back on the shelf. Finally, decision time came. He was asked whether he then analysed the facts and law and roughed out the arguments. No, he said. I simply look at the shelf until I get a "feeling" for who should win and who should lose. Then I write my opinion to justify that result. An honest judge.

And then there was a case before one of our Michigan appellate courts, which was just bad. The legal positions were bad on both sides; the clients had no redeeming values; and the lawyers were worse. The three judges were walking up the stairs from the courtroom to their offices, griping about how to decide this mutt. The decision was reached for each of them to fling the briefs down the stairs and the one which went furthest would win. Done and a per curium decision (one liner) was filed.

Nonetheless, we (lawyers) have to play the game and speak in terms of the traditional facts, law, analysis trilogy. Which, BTW, is probably more often how judges decide cases; but there are the "mystical" exceptions.

Regards

Mike
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Old 12-30-2009   #9
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Speaking of reliance or predictability, we shouldn't forget the policy goals that cause even the most activist judge to become a textualist, or vice versa, when the opposite philosophy serves the ends more effectively than the self-espoused one.
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