War-Crime Expert Assists in "Killing Fields" Trials in Cambodia

The trials of the accused, believed responsible for the deaths 1.7 million Cambodians, will take place before a U.N. war-crimes tribunal and are scheduled to begin in late January or early February.

Case Western Reserve University law professor Michael Scharf

Scharf was called on to draft a prosecution brief in response to a defense motion to exclude "joint criminal enterprise" liability from the trial. Joint criminal enterprise is a legal doctrine used to convict a defendant of crimes committed by others in the interest of a common plan. Joint criminal enterprise liability is considered key to obtaining convictions of the Khemer Rouge leaders.

"This could be the most important of the pre-trial decisions the tribunal will render," said Robert Petit, the tribunal's international prosecutor, who approached Scharf this summer for assistance.

Scharf arrived in the Cambodian capital Phnom Penh in early November with binders of Nuremberg-era cases and relevant decisions from the Yugoslavia and Rwanda tribunals, as well as the Special Court for Sierra Leone.

With help from two Case Western Reserve University law students, Margaux Day and Niki Dasarathy, who interned at the tribunal, Scharf produced a 30-page brief, which will be submitted to the judges before the court's Dec. 30, 2008, deadline. A decision on the joint criminal enterprise liability issue should be announced shortly thereafter.

Scharf, who directs Case Western Reserve University School of Law's Frederick K. Cox International Law Center and its War Crimes Research Office, is the only law professor to have been invited to serve as special assistant to the prosecutor for these proceedings. In addition to drafting the brief on joint criminal enterprise liability, Scharf lectured to the tribunal's staff, including its judges and defense counsel, on "avoiding chaos in the courtroom."

"Members of the tribunal need to expect the unexpected, be prepared for disruptive defendants and defense counsel, and avoid inflating public expectations," Scharf says. "War crimes trials have traditionally been among the messiest of the great trials in history."

Maintaining control of the Khmer Rouge trials is likely to be a challenge, Scharf warns. The lead defense attorney is Jacques Verges, known for his unconventional tactics in high-profile cases involving accused terrorists and war criminals, including Slobodan Milosevic and Saddam Hussein. Scharf points to the accounts in his recently released book Enemy of the State: The Trial and Execution of Saddam Hussein, in which he describes the courtroom theatrics firsthand.

The Case Western Reserve professor currently is in Kampala to help the government of Uganda establish a domestic war crimes tribunal and truth commission.