Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?

Ahmad Al Faqi Al Mahdi
Ahmad Al Faqi Al Mahdi

On 22 August 2016, Ahmad Al Faqi Al Mahdi entered a guilty plea before the Trial Chamber for destruction of cultural monuments in the UNESCO world heritage site in Timbuktu, Mali.1Prosecutor v. Al Mahdi, ICC-01/12-01/15-T, Video Recording of the Admission of Guilt, 22 August 2016, available at https://www.icc-cpi.int/mali/al-mahdi. Despite having admitted to the crimes charged, the case proceeded to a two-day trial.  The judgement and sentence are expected by 27 September 2016.2Prosecutor v. Al Mahdi, ICC-01/12-01/15-T-6-ENG, Transcript of the Trial Hearing, 24 August 2016, available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/12-01/15-T-6-ENG.

Interesting as it may be to debate the merits of going after the likes of Al Mahdi and the significance of this case (see e.g., Mark Kersten in Justice in Conflict (2 posts) or Owen Bowcott’s article in The Guardian), I am interested in the trial. Or is it a trial? After all, Al Mahdi pled guilty, acknowledged the factual matrix in the charging document as accurately reflecting his conduct, and voluntarily, knowingly, and intelligently (understandingly) waived guaranteed fair trial rights, in particular the rights to be presumed innocent, against self-incrimination, and to have the prosecution prove each charge against him beyond a reasonable doubt.

So what is there to try?  Why put Al Mahdi through the crucible of having to retell that which presumably he has already told the Prosecutor or force him to effectively prove his guilt (having entered a guilty plea, there is a presumption that Al Mahdi is guilty) for the crimes for which he has already accepted responsibility and for which he is willing to bear the consequences?

The prosecution and Al Mahdi have agreed that the sentence should be capped at nine years. But no deal is done and sealed until it is approved by the judges.  Expect no rubber-stamping. Judges jealously guard their judicial powers and privileges, as they should. More importantly, they need to establish that the evidence warrants the guilty plea and that the sentence is appropriate.3See Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, in force on 1 July 2002, 2187 UNTS 38544, Art. 65 (Proceedings on an admission of guilt); The Rules of Procedure and Evidence of the International Criminal Court, ICC-ASP/1/3 and Corr.1, Rule 139 (Decision on admission of guilt).

AlMahdi-ICC-timbuktuGiven the significance of the case, it must have been tempting to put on the proverbial dog and pony show; the parading of witnesses and the divergence into interesting though irrelevant areas, and maybe even the attempt to establish the historical truth – as if such a thing is possible in court proceedings.4See Address of Antonio Cassese, President of the International Criminal Tribunal for the Former Yugoslavia, to the General Assembly of the United Nations (4 November 1997) available at http://www.icty.org/sid/7452See also ICTY, Establishing the Facts, ICTY.org, http://www.icty.org/sid/324#establishing. “The Tribunal’s judgements have contributed to creating a historical record, combatting denial and preventing attempts at revisionism and provided the basis for future transitional justice initiatives in the region.” For a counter-argument see Michael G. Karnavas, Gathering Evidence in International Criminal Trials—The view of the Defence Lawyerin Michael Bohlander ed., International Criminal Justice: A Critical Analysis of Institutions and Procedures 79–86 (Cameron May Ltd. 2007). This being a momentous occasion in the short but rather ill-fated existence of the ICC (dare I mention the Kenyan cases?),5For example, in Prosecutor v. Ruto and Sang, the prosecution vacated the charges against the accused; see Prosecutor v. Ruto and Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, 5 April 2016; in Kenyatta, the charges against the two accused were withdrawn due to insufficient evidence; see Prosecutor v. Kenyatta, ICC-01/09-02/11, Decision on the withdrawal of charges against Mr Kenyatta, 13 March 2015; Prosecutor v. Muthaura and Kenyatta, ICC-01/09-02/11-696, Decision on the withdrawal of charges against Mr Muthaura, 18 March 2013. A list of the ICC cases, where charges were withdrawn of not confirmed, is available at https://www.icc-cpi.int/pages/closed.aspx. and considering that the Al Mahdi case is dealing with the destruction of medieval shrines, tombs of Sufi saints, a 15th century mosque, and all sorts of precious and irreplaceable items of cultural heritage, the impetus for a trial of sorts – as opposed to a mere sentencing hearing – is understandable. Having the graphic details – the who, what and why of this wanton destruction – being played out in public court proceedings makes for good drama. This is especially so when the protagonist was a willing participant in the criminal events, and now, having seen the errors of his ways, is an even more willing remorseful raconteur, prepared to spare no detail, engage in no obfuscation, and omit no names of his collaborators in this crime (and maybe others unnamed).  The two-day trial seems reasonable and exacting.

Trial or slow change of plea

Before I continue, a brief, but relevant segue: the KAING Guek Eav alias “Duch” trial before the Extraordinary Chambers in the Courts of Cambodia (“ECCC”);6Case of KAING Guek Eav alias “Duch”, 001/18-07-2007-ECCC/TC, Judgement, 26 July 2010, E188. See also the Case Information sheet available at https://www.eccc.gov.kh/en/case/topic/1. a slow change of plea with all the theatrics and flourishes of a show trial.  It may prove instructive.

Duch was the head of S-21, the notorious torturing and killing detention center in Phnom Penh, Cambodia, during the Pol Pot regime.7Case of KAING Guek Eav alias “Duch”, 001/18-07-2007-ECCC/TC, Judgement, 26 July 2010, E188, para. 23. Even before his arrest, Duch had acknowledged his position and more or less the activities he oversaw at S-21.8See Anthony C. Lobiado, Pol Pot’s Nazi-Style Experiments, World Net Daily, 7 June 1999, available at http://www.wnd.com/1999/06/3715/; Nic Dunlop & Nate Thayer, Duch Confesses, Far Eastern Economic Review, 6 May 1999, available at http://natethayer.typepad.com/blog/2011/11/duch-confesses-he-was-the-chief-executioner-in-one-of-historys-most-murderous-regimes-now-hes-a-born.html; Nic Dunlop, The Lost Executioner: A Story of the Khmer Rouge (Walker Books 2006). Duch decided to cooperate with the prosecution and the investigating judges (the ECCC is a civil law based hybrid court), and in the course of his cooperation, he provided numerous statements and answered detailed interrogatories.  Effectively, there was nothing to try – or at least so it seemed.

In this historic case, evidence was taken, victims (civil parties as they are called at the ECCC) gave evidence and even participated through their lawyers in the proceedings, civil society was engaged and the horrors over which Duch presided were aired.  For some of us who followed the trial, it seemed chaotic and confusing, often plunging into the ridiculous, with Duch holding court, seemingly being the only one in full command of the evidence. What should have taken a few weeks at most, took nearly eight months; the price for digressing into a historical promenade, as opposed to focusing on the operative facts of the case and establishing the guilt which Duch had admitted and for which he was presumably prepared to account. The ending of the trial proceedings was surreal. The International Co-Lawyer argued that the prosecution should have offered him a deal (as the ICTY prosecution had done in Obrenović),9Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Transcript, 26 November 2009, E1/81.1, p. 10-18. while his ostensible partner, the National Co-Lawyer, was arguing for a not guilty verdict10Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Transcript, 25 November 2009, E1/80.1, p. 117. with a by the by jurisdictional argument that Duch should not have been tried since he does not fall within the most responsible category as set out by the Agreement and Establishment law of the ECCC.11Id., p. 85.

I will get back to Duch and tie that “trial” to the Al Mahdi case, but first let’s examine a bit the concept of plea agreements in other international settings, having been inspired by common law and to some extent civil law practices.

Plea bargaining

There have been plea agreements and changes of pleas at the ICTY and ICTR.  The first one – and perhaps a watershed moment for the ad hoc tribunals was Erdemović12At his initial appearance in 1996, Erdemović entered a guilty plea to the first count of the indictment (crimes against humanity) and was sentenced to ten years of imprisonment. On appeal, the Appeals Chamber considered proprio motu the validity of his plea, granting the opportunity to plead anew finding that Erdemović’s guilty plea was not informed. In 1998, Erdemović changed his plea to guilty with respect to the second count (murder as a violation of the laws or customs of war). His sentence was reduced to five years. See Prosecutor v. Erdemović, IT-96-22-A, Judgment, paras. 2, 3; Prosecutor v. Erdemović, IT-96-22, Change of plea hearing, 14 January 1998, T. 22/3-20. – a self-admitted hands-on physical perpetrator in the Srebrenica atrocities. The notion of plea bargaining is antithetical to civil law systems where truth in pleading is essential.  In other words, one cannot bargain away criminal conduct in exchange for cooperating with the prosecution to receive a light sentence on only some or lesser characterized crimes.  This posed a dilemma in Erdemović and its progeny.  Or did it?

While plea bargaining is anathema in civil law systems, sentence bargaining is not.  As long as the accused pleads to all the crimes established by the evidence and acknowledged through his or her admissions, bargaining for a reduced sentence is perfectly acceptable. In actuality the judge is suggested a non-binding agreed sentence or a sentencing range, with the judge being at liberty to accept or reject the agreement and exercise his or her independent judicial authority in fashioning a sentence.

In accepting the proposed agreed sentence or in departing and fashioning a higher or lower sentence, the judge will in no small measure consider mitigating factors such as cooperation with the prosecution or investigating judges, provision of evidence against other suspects, willingness to give truthful evidence in future proceeding against others, acceptance of responsibility, expression of remorse, and so on.  But none of this can happen until and unless the judge establishes guilt by examining and taking evidence, as opposed to relying on representations of the prosecutor of what the evidence would show if a trial was held – as is the norm in some jurisdictions in the US.  It matters not what the accused is prepared to admit to enjoy the benefits of the bargain, the judge needs to be convinced that the evidence supports the charges.

In the common law systems, plea bargaining is so routine that if it ceased, those criminal justice systems would come to a grinding halt.  Judges are not inclined to interfere with or second-guess a prosecutor who has made a good-faith effort to save victims the trauma of trial, taxpayers the costs and uncertainty of a trial, not to mention the judge’s time in having to sit through it when he or she could be moving his or her docket of cases along, unless the agreement is overly lopsided.

In the US, there is even the possibility for an accused who is unwilling to admit to participation in a crime and maintains his or her innocence to enter a plea known as an Alford plea.13North Carolina v. Alford400 U.S. 25 (1970). In entering an Alford plea, the accused voluntarily, knowingly, and intelligently consents to a prison sentence, if he or she intelligently concludes that it is in his or her interests to plead guilty considering that the jury could, at the conclusion of a trial, reach a guilty verdict. In capital cases where the accused is exposed to the possibility of a death sentence, agreeing to be sentenced as if guilty and receiving a life-in-prison sentence may be appealing – even to the innocent.  I even invoked Alford in an open sentence change of plea hearing at the ICTY.14Prosecutor v. Kabashi, IT-04-84-R77.1-S, Sentencing hearing, 31 August 2011, T. 76/5-77/5, available at http://www.icty.org/x/cases/contempt_kabashi/trans/en/110831IT.htm. Odd as it seemed, it proved useful – though not without some explaining and bit of help from a common law judge sitting on the bench.

In civil law systems, the judge is looking for the objective material truth.  It is his or her responsibility to ensure justice for all. The evidence needs to support the charges being admitted.  Indeed, if the facts are mischaracterized, in other words, the facts support a re-calibration of the crimes charged, the judge is required to do just that – re-characterize; it is not a matter of prosecutorial discretion.15The ICC has adopted this procedure; see Regulation 55 of the Regulations of the Court providing that in its final judgment, a “Chamber may change the legal characterization of facts to accord with the crimes … or to accord with the form of participation of the accused … without exceeding the facts and circumstances described in the charges and any amendments to the charges.” Sensible. And highly pertinent for us common law lawyers to appreciate in understanding how the civil law judicial mind works – though, granted, there is no one single civil law system.  In any event, it is worth noting that some civil law systems have adopted a form of plea/sentence bargaining, with a shortened procedure to allow for a truncated trial.16See, for example, Criminal Procedure Codes of Germany: Strafprozessordnung StPO, para. 257c; France: Code de procédure pénale, Arts. 495-7 to 495-16 and 520-1; Switzerland: Strafprozessordnung stop, Art. 358 et seq.; Macedonia, Criminal Procedure Law, Official Gazette No. 150, 18 November 2010, Arts. 329, 489-496; Republic of Kazakhstan, Code of the Republic of Kazakhstan, 4 July 2014 No. 231, Arts. 612-617.  This expedited proceeding saves time, while enabling the trial judge to take the requisite evidence, hear the full admission of the accused, and hear the mitigating factors in order to determine whether the facts meet the charges and whether the sentence is appropriate.

The international and internationalized tribunals recognize the legal fiction that results from common law plea bargaining, and thus have opted for the civil law approach which I characterize as truth in pleading and sentencing.  One has to plead to what the evidence shows are proved crimes, and agree to a sentence reflective of the crimes and attendant mitigating factors. Interestingly, if we reflect on the judges’ obligation to re-characterize the facts and the truth in pleading and sentencing approach adopted, we can see that the accused, to a large extent, is shielded from one of the inherent evils seen in the US common law criminal justice system – namely, the overcharging (elevating the charges beyond available evidentiary proof and/or beyond the conduct in question) of crimes as a leverage in securing, or more appropriately, coercing, an accused into accepting a plea agreement.

Back to Duch 

KAING Guek Eav, aka "Duch"
KAING Guek Eav, aka “Duch”

Duch’s “trial” took nearly eight months despite all the statements he had provided. Though contentious at times, for all intents and purposes, his trial was in reality a slow change of plea hearing. Witnesses were called and challenged, Duch equivocated even on some of his own admissions, psychiatric evidence was introduced, historians testified, and at times it seemed that this trial was more about the Khmer Rouge period than about Duch’s actions and responsibilities.  There was never any doubt that he lorded over S-21, order torture and even the method of torture, that he manipulated the confessions to fit the expected narrative to give justification for the ultimate fate of the prisoners.  So what went wrong – especially in the end?

Setting aside the contradictory pleadings of the Co-Lawyers (speculation abounds on the why), one cardinal rule was ignored by the defence from the very beginning: never take your client in to cooperate and give incriminating statements without having worked out the details of the agreement. The International Co-Lawyer invoked during his closing argument the ICTY prosecution in Obrenović for offering Obrenović a reasonable sentence in exchange for guilty plea and full cooperation.17Prosecutor v. Obrenović, IT-02-60, Sentencing Judgment, 10 December 2003. See also ICTY Press Release, 21 May 2003, Dragan Obrenovic Pleads Guilty to Persecutions as a Crime Against Humanity, available at http://www.icty.org/en/sid/8245. But was this the time or forum for the International Co-Lawyer to complain about not getting a deal from the prosecution for Duch’s cooperation?  No.  The time to close the barn doors is not after the horses have already bolted.

Any agreement should be negotiated well in advance of any statements being given. This, of course, presupposes that the defence has diligently done its investigation (if and when permitted), is intimately familiar with all of the evidence, and has spent serious time with the client. Normally, the defence can and should ask the prosecution to provide an offer of proof in writing, so that lawyer and client can go over it and determine to what extent it is acceptable, what may need editing, what proposed facts are unacceptable, etc.  All of this, including the range of sentence is discussed before the client is taken in for debriefing.

The lawyers representing Obrenović were seasoned and well acquainted with the plea bargaining process; it is both art and science, though the science part makes all the difference. Obrenović benefited because his lawyers were proactive, but also because the prosecutor was keen on flipping Obrenović into a prosecution witness. Nikolić,18See ICTY Press Release, 7 May 2003, Momir Nikolic Pleads Guilty to Persecutions as a Crime Against Humanity, available at http://www.icty.org/en/sid/8253. in the same case, tried to do the same only he was caught in a web of lies, thinking that if he gave the prosecution what it wanted and did not have, he would get a light sentence. Pleading guilty and flipping into a prosecution witness carries risks. There is a penalty for perjury, as Nikolić came to find out.19Prosecutor v. Blagojević & Jokić, IT-02-60, 29 September 2003, T. 2126/8-2127/25, where Nikolić, testifying as a witness, admitted on cross-examination that a statement he gave to the prosecution earlier contained a lie. In the Plea agreement, the prosecution recommended from 15 to 20 years sentence. Nikolić did not face any contempt charges; his sentence was reduced from 27 to 20 years on appeal. See Prosecutor v. Nikolić, IT-02-56, Judgement on Sentencing Appeal, 8 May 2006.

In any event, Duch had precious little to bargain once he gave up the goods in pre and post arrest interviews. The prosecution may not have been so keen on striking a deal, though assuming Duch himself was agreeable (and there’s no telling given his manipulative character)20Stephen Kurczy, From Khmer Rouge Torturer to Born-Again Christian, Christian Science Monitor, 6 April 2009, available at http://www.csmonitor.com/World/Asia-South-Central/2009/0406/p06s02-wosc.html; Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Psychological Assessment Report Concerning KAING Guek Eav, 12 August 2008, E3/509. a hard bargain could have been driven. Yes, Duch had made admissions in the press, but he could have played hard ball: no quarter sought, none given. No statements, no admission of guilt in court, no testifying, no future testifying. Zip.

Pleading in final arguments for the Trial Chamber to recognize a client’s cooperation with the prosecution and to be sentenced leniently as other accused have based on negotiated plea agreements, when nothing was negotiated and agreed prior to the purported cooperation, is the least effective avenue to sentence mitigation. There being no offer of proof, Duch was free to equivocate and confabulate – as he did. There being no sentence agreement or even a general cap on what the prosecution would recommend, the prosecution was free to ask for a much higher sentence than the defence (or at least one of the Co-Lawyers) expected – as it did.  And there being no meeting of the minds, as it were, the Trial Chamber was not provided with any guidance from any mutual agreement of the parties of what an acceptable sentence for Duch would be.  An interesting aside: on appeal the prosecution, despite claiming that Duch was cooperative, sought and obtained a higher sentence for Duch – life.  Another lesson on plea bargaining.

Al Mahdi’s gambit

Nine years may seem to some as being way too light for the destruction of this world heritage site.  The evidence of the destruction is undisputed. Al-Mahdi admits to taking part in the destruction. There are claims that he has cooperated and will continue to cooperate with the ICC prosecution concerning the investigation of others who were involved, only the prosecution is in a position to assess the quality of this cooperation. And there is the issue of whether, despite his acknowledgement of having committed the crimes and his purported cooperation, he sufficiently appreciates the nature and gravity of the crime, which, in my opinion, also ties in with rehabilitation and being remorseful.

So what was there to try?  And if there was anything, was it really a trial – at least in the adversarial sense that is the ICC norm?

It may be characterized as a trial in the civil law sense, but before the ICC it would be more appropriate to refer to it as a prolonged or drawn-out change of plea/sentencing hearing. At the end of the proceedings, if the Trial Chamber rejects the plea agreement and decides to sentence Al Mahdi to, say, double the time – 18 years, can Al Mahdi realistically withdraw his plea agreement and proceed to trial?  No.  Effectively, this is an open sentencing proceeding with the parties having agreed that nine years is an acceptable sentence. In theory this also means that there should be no grounds to appeal if the sentence is nine years or less – though at least at the ad hoc tribunals an appeal was always available even when the imposed sentence was within the agreed range.

No doubt, Al Mahdi’s narrative was sufficiently acceptable to the prosecution. Presumably, there is independent evidence validating Al Mahdi’s admissions. And presumably, the prosecution has articulable grounds supporting the agreed sentencing period of nine years.

From what we are able to glean, it appears that Al Mahdi’s lawyers have diligently approached the prosecution and have managed to extract an agreement that is defensible. Well done.

Realistically, it is in everyone’s interest that the trial/sentencing goes well. Having heard the evidence, the Trial Chamber, I hazard to guess, will accept the plea agreement – assuming (and this is no small assumption) it is convinced that Al Mahdi has expressed genuine remorse.  We will soon know.

By accepting the plea agreement, the Trial Chamber may motivate other accused to forgo lengthy trials and risk heavy sentences in exchange for expedited trial/sentencing hearings and modest sentences. If the judges take a hard-nose position and reject the plea agreement for unsound reasons, not only will it delegitimize the prosecution’s ability to meaningfully engage in plea/sentencing bargaining, it will also disincentivize the defence from entertaining plea overtures from the prosecution. It is also counterproductive for the ICC; shortened trial/sentencing hearings are highly cost-effective.  Not to mention the certainty in outcome.

Assuming Al Mahdi delivered the goods and is willing to continue to do so as the plea agreement requires, the Trial Chamber is well advised to seize this opportunity to foster plea agreements.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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