Javal S. Davis

08.05.2016 ( Last modified: 07.06.2016 )
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facts

Javal S. Davis was born in Roselle, New Jersey, in 1977. In 1994, he started work as a tool salesman. He joined the US army as a reservist of the 372th military police company. In May 2003, his company was sent to Iraq and deployed in Abu Ghraib prison.

In late 2003, rumours started circulating that members of the US army had been mistreating and torturing Iraqi detainees in Abu Ghraib prison. In January 2004, Joseph Darby, a member of the US military police, informed the army leadership about these abuses and supplied the officer in charge with photographic material. The pictures documented scenes in which naked Iraqi detainees were being beaten and forced to simulate sexual acts.

At the end of January 2004, the commander-in-chief of the multinational troops in Iraq, General Ricardo Sanchez, instructed General Antonio Taguba to set up an inquiry into the affair. The findings of his investigation were handed over to the authorities in charge on 4 April 2004.

The so-called Taguba report (see “links”) concluded that American soldiers carried out acts of humiliation which severely violated international law. It stated that numerous ‘sadistic abuses’ were inflicted upon detainees of Abu Ghraib between October and December 2003. The guards had set up their own rules, which were condoned more or less explicitly by their superiors.

The report cited numerous examples of maltreatment towards detainees, such as physical and sexual abuse, torture, intimidation by use of military dogs and the threat of rape and killing.

The report specifically named seven suspects: Ivan Frederick II, Charles Graner, Sabrina Harman, Megan Ambuhl, Jeremy Sivits, Lynndie England, Megan Ambuhl (see “related cases”) and Javal Davis.

Javal Davis was indicted by the US Army on 12 May 2004.

legal procedure

Javal Davis was indicted by the US Army on 12 May 2004. He was charged with the following offences: conspiracy to mistreat detainees, dereliction of his duty to protect detainees from maltreatment; violence against detainees, forgery of official documents to mislead the authorities in their inquiry.

Javal S. Davis pleaded guilty and was sentenced to six months’ imprisonment for dereliction of duty, forgery of official documents and violence against detainees. He did not file an appeal against this decision.

spotlight

The Geneva Conventions protect all individuals from torture and inhuman or degrading treatment during times of armed conflict or occupation. The 3rd Geneva Convention (relative to the treatment of prisoners of war, dated 12 August 1949) protects prisoners of war against any such treatment (Art. 13, 14, 17 § 4 and 87 § 3). The 4th Geneva Convention (relative to the treatment of civilians during times of war, dated 12 August 1949) guarantees the same protection for civilians (Art. 32). The Additional Protocol I (relative to the protection of victims of international armed conflicts, dated 8 June 1977) also contains a ban on torture (Art. 75.).

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (dated 10 December 1984) defines the term “torture” in Art. 1 and bans it at all times and against all individuals. The extensive ban on torture has today become an inherent part of the jus cogens, meaning the norms that every State has to comply with under all circumstances, even when the State in question has not ratified any such convention.

Any such acts as described above are considered to be war crimes under the Geneva Conventions (in Art. 129 of the 3rd Convention and Art. 146 and 147. of the 4th Convention.) The same applies under Art 8 of the Statute of the ICC (International Criminal Court).

Moreover, the fact of having carried out acts of torture on orders from a civil or military superior authority can never, in International Criminal Law, exonerate a subordinate from his responsibility for the acts of torture committed. (Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 7 § 3; Statute of the International Criminal Tribunal for Rwanda, Art. 6 § 3; Statute of the ICC Art. 33).

context

The Iraqi special tribunal is a hybrid tribunal created on the 10th December 2003 in Bagdad by the coalition provisional authorities which were government established after the invasion of Iraq in 2003. The mission of this tribunal is to judge acts of genocide and crimes against humanity as well as war crimes committed between 17 July 1968 and the 1st May 2003, the period covering the political regime of the Baas party. It is therefore aimed specifically at crimes committed by Iraqis in the aforementioned period notably those committed during the war against Iran (1980 – 1988) and the invasion of Kuwait (1990-1991).

The Iraqi special tribunal was created in the context of the Iraq war (also known as the Gulf war) that began on the 20th March 2003 by operation “Iraqi Freedom.” The operation involved the invasion of Iraq by the coalition. It was conducted by the United States, the United Kingdom and the international coalition in order to overthrow the Baas party of Saddam Hussain. The Baas party originating in Damascus in 1947 came to power in Iraq in 1963 but it was only due to a coup of 17th July 1968 that it definitively seized power until 2003. When Saddam Hussein came to power on the 16th July 1979 the party changed significantly and militarised itself. By organising itself into various cells throughout the country the party became strongly resistant in the face of hardship. The United States have been the leaders of the war in Iraq and many reasons for the war have been officially cited by the government of G.W Bush; the fight against terrorism, the elimination of weapons of mass destruction that Iraq was supposed to hold; the arrest of Saddam Hussein, to mention only the main ones. After a rapid defeat of the Iraqi army at the end of April 2003 and the capture of Saddam Hussein, the coalition and Iraq tried to establish a transitional democratic government representing all the Iraqi communities. The coalition also aimed to try members of the Baas party that had been captured.

In close collaboration with the American department of justice to which he reports directly, Paul Bremer, (Iraqi second civil administrator) established by decree the statute of the Special Iraqi tribunal on the 10th December 2003. The United States have awarded more than $100 million to ensure the “construction of the courtroom, conduct exhumations, study the documents seized, the preparation of evidence and the training of the tribunal’s members”.

The statute of the tribunal is a mix of two existing forms of procedure, inspired strongly by American adversarial law as well as Egyptian law which is essentially inquisitorial. If the statute is deemed to be insufficient it explicitly states that the Iraqi penal code of 1971 is to be used. The statute of the tribunal introduced alongside the Iraqi penal legislation a number of crimes taken from statutes of other international criminal courts in order to incriminate the former dictator Saddam Hussein and other members of the regime, namely genocide, crimes against humanity and war crimes. Furthermore, each time that one of these crimes does not have a corresponding match in the Iraqi penal order, the statute authorises the tribunal judges themselves to determine the sentence taking into account the gravity of the crime, the individual characteristics of the accused and international jurisprudence. With regards to its composition, the Iraqi special tribunal consists of 20 attorneys contracted for 3 years, 3 chambers composed of 9 permanent judges appointed for 5 years, a court of appeal composing of 9 judges and 20 judges appointed for 3 years. It is formed solely of Iraqi judges of which a certain number have denounced from the beginning the pressure exerted by the provisional government. Some judges have been the victims of threats, of removal and even of assassination.

Whilst being discredited from the beginning as rendering winners justice, the Iraqi special tribunal had the means to quickly realise its central objective, that of judging the ex head of state Saddam Hussein as well as the main representatives of the Baas regime. In addition to genocide, crimes against humanity and war crimes, the tribunal also had jurisdiction to try cases relating to the manipulation of judges, squandering national resources and the use of the Iraqi army against another Arab state. All of these charges were on the indictment for the first trial.

The first trial which took place in front of the tribunal was the trial of Saddam Hussein judged alongside seven of his lieutenants on the 19th October 2003. There were doubts concerning the fairness of the trial in regard to the conditions under which the trial began. Several Human Rights organisations one being  Human Rights Watch have condemned technical and financial limits placed on the defence which risked hindering their work in comparison with the support received by the prosecution. Another issue which was the subject of controversy was the re-establishment of the death penalty on the 30th June 2004, which was abolished in 2003 by Paul Bremer. Despite the position today in international law being clearly abolitionist,  several death sentences were passed early on culminating with the hanging of Saddam Hussein in December 2006 which was voluntarily made public. After said hanging the tribunal has continued and continues today to prosecute the former members of the Baas government.

At present, the Iraqi special tribunal is still evolving in the context of a political crises and repeated attacks. The execution on 25 January 2010 of “Chemical Ali”, Saddam Hussein’s cousin seems to have revived the movements against religious minorities present in Iraq.

Fact Sheet
Name: Javal S. Davis
Nationality: United States
Context: Iraq
Charges: Torture, War crimes
Status: Sentenced
Judgement Place: United States
Particulars: Sentenced to six months’ imprisonment by a military tribunal