Defining Justice

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• Victor's Justice?
• Standards for Proving Guilt
• Can Saddam Mount an Adequate Defense?
• The Saddam Show
• Justice in a war zone
• Command Responsibility
• The Question of Genocide
• The “You Too?” Defense
• The Death Penalty
• Whose Justice?

H uman rights groups are concerned that the Iraqi tribunal’s “beyond reasonable doubt” test may be more lenient than the test used by most international criminal courts. Human Rights Watch has noted that under Iraqi law, an accused can be convicted on the “satisfaction” of the court –– a standard too loose, the group says, to assure a fair trial.

Where does the “beyond reasonable doubt” standard come from?

The words “beyond reasonable doubt” come from the common law system used in the United Kingdom, the United States and other Commonwealth countries. In a common law system, justice is based on the right to be tried by a jury. The phrase dates back to 1770, when British soldiers were accused of murder for firing on civilians in the Boston Massacre. The soldiers were tried before Massachusetts’s highest court. Patriots wanted the men convicted, but also wanted to show the Crown that Boston could host a fair trial. One of the judges told the jurors that “if upon the whole ye are in any reasonable doubt of their guilt, ye must then, agreeable to the rule of law, declare them innocent.” Defense attorney John Adams, the future president, argued that the reasonable doubt standard was too lax and that jurors should not convict unless they were absolutely convinced of guilt –– the test that was typical at the time. In the end, two soldiers were convicted of the lesser charge of manslaughter, and their thumbs were branded with an “M,” for murder.

Will the Iraqi tribunal use the “beyond reasonable doubt” standard during the trial?

It’s unclear. Michael Scharf, a law professor at Case Western Reserve University who helped train the tribunal judges, says that when he discussed the Iraqi standard with them, they confirmed that it is the “functional equivalent of the ‘beyond reasonable doubt’ standard.” But the Iraqi Criminal Code clearly states that guilt must be proved only to the “satisfaction” of the court. As the law governing the tribunal doesn’t declare a standard for proving guilt, tribunal judges may have more flexibility to use their own intuition about guilt or innocence. Critics have asked the tribunal to clarify its standard and have requested that it use “beyond reasonable doubt.”