On Tuesday, Adil Mohammad Abbas Zubeidi, one of the defense lawyers working at the Iraqi Special tribunal (IST) that’s trying Saddam Hussein and eight of his top henchmen, was gunned down in Baghdad and killed. Another defense lawyer, Thamer Hamoud al-Khuzaie, was also shot in the incident, but he escaped death and was taken to a nearby hospital for treatment.
Zubeidi was the second of the the 13 defense lawyers to be killed in less than a month.
Tuesday’s incident raised yet again the key question as to whether a “fair trial” can be held for Saddam and his top associates in the anarchic and death-stalked city that is Baghdad today. Richard Goldstone, who was the first Chief Prosecutor of the Int’l Criminal Tribunal for former Yugoslavia (ICTY) was quoted by AP as saying, “It is just impossible to have a public trial if you can’t guarantee the safety of witnesses, judges or defense counsel.” ICTY, you may recall, has been sited in The Hague since its founding in 1993.
US-based legal specialists who have been watching– and in at least one case, also advising– the people running the Saddam trial now have their own blog. It’s called Grotian Moment: The Saddam Hussein Trial Blog. (The reference there is to Hugo Grotius, 1583-1645, an early-modern philosopher whose work formed a foundation for many of the principles of present-day international law– and of European imperialism, too, by the way.)
So anyway, on Tuesday, the GM blog’s Michael Scharf– a law prof who has also worked as a key advisor for the IST– wrote a post on the blog asking, “Are the Murders of Defense Counsel going to derail the trial?” and answering his own question… “No.”
Scharf makes this amazing “blame the victim” argument:
- the defense attorneys in part brought this tragic situation upon themselves when they elected to have their faces and identities broadcast during the first day of the trial, and when they subsequently refused to accept the Iraqi Government and U.S. military’s offers of security. Now they are seeking to exploit the tragic — but not unforeseeable — murders of their colleagues in an attempt to derail the proceedings….
Well, that’s not quite as bad as the Iraqi PM’s spokesman Laith Kubba, who according to that Newsday piece linked to at the top of this post,
- suggested that Hussein’s own supporters might have killed the attorneys to disrupt the trial. “We know that Saddam and his followers are ready to do anything … to block the work of the court,” he said.
Scharf concludes his blog post with this:
- I think that the judges will end up dealing with this problem by requiring the defense counsel to accept US military protection. If the defense lawyers continue to refuse to do so and to boycott the trial, the judges may tell them that as duly appointed defense counsel, they are officers of the court, and have a responsibility to accept the security and continue to participate in the trial, or they can face sanctions such as fines, imprisonment, and disbarment, and they can be replaced by court-appointed defense counsel who will not play these kinds of high-risk games in an effort to disrupt the proceedings.
His piece there on the GM blog is twinned with one from his colleague Laura Dickinson, who makes the case for moving the trial out of Iraq, even if only temporarily.
Of course, as I have argued both here and over on the Transitional Justice Forum blog a number of times (like, here), the whole question of holding the trial inside Iraq at this time is intensely political. It can’t be divorced from entanglement with the controversies swirling around the political-legal status of the US troop presence in Iraq, or from those around the status of the Iraqi transitional authorities that were created through a US-designed mechanism.
The IST’s “founding myth” is that it is an Iraqi court, and indeed that it plays a special role in defining the nature of the new independent state of Iraq. (What it notably doesn’t seem to establish very well is the important principle of the indpendence of the judiciary from the executive power.) John Burns wrote in the NYT yesterday, about the proposal to relocate the trials outside of Iraq,
- That proposal has been repeatedly rejected by Iraqi officials, and by American Justice Department lawyers who advise them, who have said holding the trial in Iraq is a test of Iraq’s sovereignty and of progress toward responsible government after the horrors of the Hussein era.
Note that use of the term “advise”.
Burns’s report was relatively good though. He described the arguments made by the defense lawyers more fairly than many other US reporters. For example,
- Reporters who went to the Shaab district of Baghdad after the killing [on Oct. 19] of the first lawyer, Mr. Janabi, found witnesses who said they had heard some of the men who stormed Mr. Janabi’s office saying they were from the Interior Ministry. Mr. Janabi’s body turned up shortly afterward on wasteland nearby, with gunshot wounds to the head.
“I got a phone call from Thamir al-Khuzaie,” Mr. Dulaimi [that is, saddam’s own main lawyer] said, “and he told me that the car carrying the men who sprayed them with bullets today was followed by a police car. Thamir said the police car picked both of them up after the shooting, and took them to the American hospital.
“It only goes to show how cleverly they coordinate these attacks. It is the Interior Ministry that has offered to provide us with protection against these attacks, but it is the ministry itself that is planning the killings.”
Burns is not so good, though, it seems to me, in doing any investigative reporting into who it actually is that controls all of the levers of power in this court’s proceedings. Who has physical control of the evidence? Who controls the IT systems? Who has physical custody of the prisoners? We really need to know how truly “Iraqi” this court is– or, how American.
Anyway, it seems to me at this point there is no way to foresee any satisfactory end to the question of “What will happen to Saddam Hussein?” The trial is supposed to resume on November 28. One scenario is that that will happen, the judges will rush through the Dujail case, announce a death sentence, and shortly afterwards Saddam will be executed. Other scenarios could have the case dragging on for a lot, lot longer, and possibly even disintegrating into increasing chaos over time.
One thing seems certain: this will not be the kind of clean-cut, “exemplary” legal proceeding with which one would like to see a newly democratic Iraq inaugurated.