Category: War crimes etc

I just wrote a post over at Transitional Justice Forum about the ICC get its hands on its first indictee. He is Thomas Lubanga Dyilo, of the Democratic Republic of Congo.
I raise a question there as to whether the timing of this is in some way a reaction to the fiascos of (1) the death of Milosevic and (2)the continuing deterioration of Saddam’s trial in Baghdad, both of which developments have started to show that the broad “project” of using high-profile war-crimes trials to try to help heal grave political conflict has not been as successful as many in the human-rights movement previously hoped…
I’ll be doing an hour-long call-in show on this issue, on some west-coast (US) -based radio station, later this week. Heck, I should probably get some more details about that so I can invite you all to tune in… All this is connected to the article I have on international war-crimes trials in the current issue of Foreign Policy.
Btw, I have now found a late-proof PDF version of this article and have posted it into the archive here, with a link on the JWN sidebar. (Readers should simply ignore the meaningless Latin, which is used there as a space-holder… Also, the blank spaces on the pages, which are where the mag’s ads go.)
So now you can comment on the FP piece, here– or on my post on the ICC, over there at TJF.

I find two aspects of Milosevic’s death in UN custody yesterday quite interesting. The first is what his death actually tells us about the value of using criminal prosecutions to do a “truth establishment” exercise (and the linked question of the reactions to his death in different political spheres.) The second is the continuing tale of the toxicological aspects of his death.
Regarding the value of criminal trials in “establishing a historical record” about past atrocities– which is one of the main goals people are seeking when they support such trials– Milosevic’s death, and the suicide in UN custody earlier this week of the “lesser” defendant Milan Babic, have underlined the problems with the fact that criminal trials always revolve centrally around the actions and culpability of named individuals.
Then, if key indicted individuals should somehow “escape” from the control of the court– whether through a death, a suicide, or through becoming in some other way “unfit to be tried”– the trial stops right in its tracks. And not only the issue of the guilt or innocence of the accused individual is left hanging– indeed, given the presumption of innocence, he has to continue to be presumed innocent after his death– but also the whole broader “truth establishment” venture stops dead in its tracks.
Recognizing this fact, tribunal spokesperson Christian Chartier is quoted here as saying: “This is tragic for the truth… This is tragic for the victims.”
I note that truth commissions don’t suffer from this extreme vulnerability to the physical status of a small number of individuals.
The reactions to Milosevic’s death have been interesting in this regard. (See my discussion of this issue, too, in my comment to this post over at Transitional Justice Forum.)
The BBC’s Jon Silverman (whom I met once, in Rwanda) has a piece on their website titled simply, Worst outcome for Milosevic tribunal.
Silverman writes that M’s death:

Continue reading “Milosevic’s death”

I put up a post at Transitional Justice Forum today titled “Haiti, Iraq, and political transition”. It explores some of the “justice” issues involved in the very messy and risk-freighted post-election periods in Iraq and Haiti– and the role that “transitional justice” mechanisms can play (for good or ill) during such transitions…
Check it out.
One source I cite there is this report, from AP’s veteran Baghdad correspondent Hamza Hendawi, who writes that the trial is now having an unintended new unifying effect acorss sectarian lines inside Iraq– Iraqis are increasingly treating it as a sitcom! Including quotes from both a Shiite and Sunni, Hendawi writes, “Iraqis are united over one thing — the trial’s entertainment value.”
Oops, perhaps not quite what the US occupation authorities and their RCLO intended when they invested $138 million in this trial process.
Meanwhile, over at the “Grotian Moment” blog, which is group-authored by a large number of law professors, some of whom have played an active role in prearing and help organize the trial, giving “training” to its Iraqi judges in London, etc., there is an understandable degree of consternation at how things have been going there.
In this post, Michael Scharf, one of the judges’ trainers, explains how far he sees the trial falling short of the three “cardinal rules” that he, presumably, urged on them there. They were:

Lesson #1: Keep [it] short.
Lesson #2: Keep it fair.
Lesson #3: Keep it under control.

David Crane, who was Chief Prosecutor at the Special Court for Sierra Leone,wrote,

I have a concern about an appearance of bias on the part of the new Chief Judge, currently presiding over this stage of the trial of Sadaam. An Iraqi Kurd, who lived in a village destroyed by Sadaam, a defendant, can give the appearance of just such a bias. This may bring a result that may appear to be unfair to this fledgling democracy. I am surprised that there has not been a stronger move to have the Chief Judge recused.

But most intriguing of all, on that blog past as on the one before it, there are some fairly lengthy comments from Saddam’s own preferred defense lawyer, the former Qatari Jusice Minister Dr. Najeeb al-Nuaimi.
The blogosphere really becomes a more and more interesting place, eh?

The US occupation forces’ much-hyped effort to put Saddam Hussein and his henchmen on trial in Iraq is now in complete shambles.
On January 15, the former Chief Judge, Rizgar Amin, resigned from his job after complaining of political interference from the Iraqi government, which has been described by the the powerful and shadowy US government body that created the “Iraqi Special Tribunal” as being “in charge” of the proceedings.
Some body– unclear exactly which– then proposed Amin’s deputy, Saeed al-Hammashi to succeed him. But the Iraqi government’s “Debaathification Commission” then accused Hammashi of having been a Baathist. He was taken out of the running and the job was given to Judge Raouf Rasheed Abdel-Rahman, who opened today’s resumtpion of the proceedings…
Which almost immediately degenerated into chaos.
According to that account, by the Daily Telegraph’s Oliver Poole,

The new chief judge … helplessly banged his gavel yesterday as a defendant was dragged from court, the defence team left in protest and Saddam walked out shouting: “Down with traitors.”
…Mr Abdel-Rahman opened proceedings with the clear intention of stopping more outbursts from Saddam and his henchmen. Political speeches would not be allowed, he said.
“If any defendant crosses the lines he will be taken out of the room and his trial will be carried out without him.”
Within minutes, his strictures resulted in the departure of half of the defendants and all defence lawyers. Barzan Ibrahim Hassan al-Tikriti, Saddam’s half brother and the former head of intelligence, ended a lengthy statement about his health by calling the court “the daughter of a whore”.
When he refused to leave, two guards grabbed him and the three men started pushing and shoving. Still fighting and egged on by Saddam, who was shouting “Long live Iraq” and waving his fist, al-Tikriti was then dragged from the room.
That led to further scenes as the defence team protested at what it called his mistreatment.
Mr Abdel-Rahman ordered one lawyer to be evicted after he refused to stop shouting complaints. The rest of the defence team walked out in protest despite warnings from the bench that “any lawyer who walks out will not be allowed back into this courtroom”.
After lawyers appointed by the court arrived in their place, Saddam refused to accept them, saying that he had the right to leave if he did not recognise his legal representatives. As he stood up, a guard pushed him back into his chair.
“You do not leave; I allow you to leave when I want to,” Mr Abdel-Rahman said, before ordering his removal.
Saddam, by now in control of proceedings, replied: “I led you for 35 years and you order me out of this court?” He then left, accompanied by two guards and followed by two other defendants who had refused to accept their new lawyers.
The session increased doubts that the trial can afford the defendants a fair hearing.

In the absence of Saddam Hussein and his chosen legal team, Abdel-Rahman continued with the trial, bringing in more prosecution witnesses, who were questioned by the prosecution attorneys for three hours.
Miranda Sissons, who has been observing the trial on behalf of the International Center for Transitional Justice, noted the passivity of the court-appointed “defense lawyers” during those appearances. She told the NYT’s Robert Worth that, “They said nothing during three hours of testimony this afternoon, even as prosecutors and the judge peppered the witnesses with questions about accusations of torture and executions ordered by Mr. Hussein and his lieutenants.”
In a press release issued January 27, Human Rights Watch had warned about the risks of the bench and the entire trial becoming politicized. The organization’s Richard Dicker went memorably on the record there saying,

“The removal of Judge al-Hammashi from the trial created the appearance of a court that is continually subjected to political interference… Sitting judges cannot be shuffled around as though they were deck chairs on the Titanic.”

H’mm, an interesting analogy don’t you think? I mean, if we are really talking about the trial as the Titanic, then it doesn’t make any difference if the deck-chairs get rearranged or not, does it?
Here, anyway, are links to two JWN posts I put up about the trial back on December 22: Saddam trial: Iran’s opening bid … and Legality and the Saddam trial.
Here is a fairly lengthy coment I left over at the “Grotian Moment” blog a couple of days ago. It’s about the unavoidable influence that politics inevitably has on the conduct of the trial.
Actually, the inevitability of the “politicization” of transitional justice efforts, in any situation of deep political transition, is a major theme of much of my recent work on transitional justice. Too many lawyers (especially lawyers growing up in the insulated bubble of the US) think that somehow– poof!– a few high-level prosecutions can suddenly make everything right in the world, even after episodes of truly atrocious violence and in deeply traumatized societies struggling to escape from very violent inter-group conflict…
But they can’t…
That’s why I’m glad that the government of East Timor has decided not to seek proscutions of Indonesians or others responsible for the terrible suffering inflicted on their people during their 27 years of being under military occupation by Indonesia– as I wrote about here.
And now, the Saddam trial is collapsing into shambles…
Well, a part of me would have loved to see a decent, thorough-going trial of the man and of all those who enabled and connived in his war-crimes and crimes against humanity. (Which would include, in at least an “accessory” role, people like Donald Rumsfeld and other US enablers.) It would be great to have had all Saddam’s misdeeds brought together and made public in an incontrovertible historical record, and to see the forces of Baathist authoritarianism incapacitated forever.
Both those things may yet happen. But I very much doubt that this embarrassing farce of an “Iraqi Special Tribunal” will be the vehicle through which they happen. Actually, at this point, I strongly doubt they will ever happen at all.
And meantime, one of the chief things we see happening with this “Special Tribunal” is the continued politicization of the justice system inside the “new” Iraq.

Why was the Egyptian Foreign Minister telling his Ambassador in London about the identity of the countries in eastern Europe where US government agencies were holding and interrogating, or planning to hold and interrogate, 23 Iraqi and Afghan prisoners?
To me, that is one of the most intriguing aspects of the “leak” that happened in Switzerland over the weekend, in which reporters from the Swiss weekly SonntagsBlick got hold of and wrote about intercepts that Swiss military intel had gotten from a fax that Egyptian FM Ahmed Abul-Gheit sent to his London embassy, last November 10.
What was the interest of the government of Egypt in the fate of these detainees, pray?
According to this English-language despatch from Swissinfo, which was quoting the SonntagsBlick article,

The Egyptian fax stated that 23 Iraqi and Afghan citizens had been transferred to a Romanian military base near the port of Constanza for interrogation purposes. It added that similar detention centres had been set up in Ukraine, Kosovo, Macedonia and Bulgaria.

The simplest explanation for why the Egyptian government would be involved in this affair would be that these detainees were being hurriedly hustled out of Egypt. I suppose there are other explanations?
Another serious question is why any “Iraqi” detainees were among those being hustled around the Euro-Mediterranean area, at all. When the US forces invaded Iraq they assured the ICRC that they would comply there with the provisions of international humanitarian law that require, inter alia, that security detainees be kept in the occupied territory and not taken out of it. In Afghanistan, by contrast, the Bush administration always said it did not consider itself an “occupying power” under the terms of the Geneva Conventions, and therefore did not consider itself bound by those provisions.
Of course, there are many other ways– torture, etc– in which the US occupation authorities in Iraq have violated the Geneva Conventions. But to take Iraqis out of their country and shuffle them around the world in the CIA’s globe-girdling “black hole” prison system? That’s another very serious infraction, too.
I note, meanwnile, that the SonntagsBlock revelations have set off a flurry of related political activity in some of the European countries named, and elsewhere in Europe:
In Romania,

Members of the team investigating the case of the alleged CIA prisons on Romanian territory have asked the Defense Ministry to make available all files on military airplanes that flew over, landed or took of from Romania starting in 2002.
The commission’s president, Liberal senator Norica Nicolai, said yesterday that similar requests have been made by the Civilian Aviation Authority and by the European Organization for Air Transport Safety.

In Brussels,

The head of a European investigation into alleged CIA prisons in Europe said Tuesday the purported Egyptian government document naming countries where such prisons existed is a new lead which must be followed up.
… The Strasbourg, France-based Council of Europe began its investigation after allegations surfaced in November that U.S. agents interrogated key al-Qaida suspects at clandestine prisons in Eastern Europe and transported some suspects to other countries via Europe.

But in Switzerland– yes, Switzerland, longtime home of the ICRC and birthplace of the whole idea of “international humanitarian law”– the federal government earlier today,

launched a probe … into the leak of an Egyptian diplomatic fax intercepted by its secret service that appeared to lend credence to allegations the CIA had secret prisons in Eastern Europe.
… The Swiss government, which defended the actions of its secret service in intercepting the message, said the federal prosecutor as well as military authorities had begun preliminary investigations over the leak.
“Somebody who acts like this is hurting the reputation and the credibility of our country. Moreover, they are punishable by law,” the government said in a statement.

But the bottom lines on this still, in my view, remain:
* Why is the US government holding prisoners quite illegally and “off the records” in a number of places around the world, and also transporting them across international borders?
* Who are these prisoners? Where are they being held currently? How can their situation be regularized so that they can receive the due protections to which they are entitled under law– whether international humanitarian law or the national law of the place where they are being held?
* And how can the US government and all its accomplices in the “black” detainees conspiracy be held to account for their shocking misdeeds on this issue continuously since October 2001?
(Hat-tip to Christiane for nudging me to write about this!)

Throughout many long portions of its life, Saddam Hussein’s regime had a record as a rights abuser and perpetrator of atrocities equaled by few other governments in the world. Under most circumstances I would be delighted to see a person like that not just incapacitated (by being under arrest) but also on trial, and confronted with as full as possible a record of how much sheer misery his actions had inflicted on other people.
The trial now underway in Baghdad, however, has many flaws; and not the least of these is the fact that it attempts to create an impression of lawfulness in a situation marked indelibly with the politics of “might makes right”.
The international human-rights community seems fairly deeply split over the issue of this trial. (Or is that only the way it looks from here inside the US?) Many rights advocates around the world focus on the illegality of the US invasion and occupation of Iraq as a factor that has irreparably tainted this court— which is indubitably a US creation (with a tiny, supplementary input from Brits and from Iraqis)– and prevents it from having have any recognized legal standing as a rights-based body. Other rights advocates have focused more on details like the weaknesses in the IST’s due-process protections or its power of capital punishment.
Yet other rights advocates, however– and these are mainly US nationals– seem to have been so enamored with the idea of “pushing forward the practice of atrocities law” and/or with the success of the US “project” in Iraq, that they have been quite happy to leap with a single bound over all those pesky questions about the “legality” of the Iraqi Special Tribunal, or the “weaknesses” in the court’s procedures, etc, and to give their full support to the IST throughout. Some of these individuals– including, for example, Michael Scharf of Case Western Reserve University Law School in Ohio– even took on the task of providing specialized training in atrocities law for the IST’s judges and investigators, on behalf of the US occupation authorities.
The questions about the underlying legality of the court’s operations have not, however, gone away– and neither has the discussion within the community of US-based human-rights lawyers over whether this issue indeed still needs to be addressed square-on by the IST itself before the court can proceed any further with its work, or not.
Last week there was a revealing discussion of this over at “Grotian Moment“, a specialized blog in which a panel of US-based law profs discusses the Saddam Trial from time to time.
In that post I linked to there, half a dozen of the blog’s author’s discuss the question, Who Won the Battle of Wills In the December Proceedings of the Saddam Trial? Well, the post was dated Dec. 14, so they didn’t have quite all the evidence they needed at that point. But in broad terms, the court’s proceedings of yesterday and today don’t seem to have changed very much in the trial.
The most interesting parts of that discussion, imho, are the contributions made by Cherif Bassiouni, a very eminent Egyptian-American legal scholar whom I have had the privilege of working with a little bit, and Leila Sadat, a law prof who is also (I think) an Egyptian-American.
Here’s what they said:

Continue reading “Legality and the Saddam trial”

So now, Teheran has started making a big push to have its many, very serious grievances against Saddam put onto the docket of the Iraqi Special Tribunal (IST).
The report linked to there came from Iran’s Mehr News Agency. It quoted Iranian Foreign Minister Manuchehr Mottaki as saying on Wednesday that his ministry would be presenting a formal complaint to the IST concerning Saddam’s use of chemical weapons against Iranian personnel during the eight-year war that followed Saddam’s September 1980 invasion of Iran.
Mottaki claimed that,

“During the war, Saddam used chemical weapons against Iran 200 times, which left 100,000 people chemically disabled,” Iranian Foreign Minister Manuchehr Mottaki said here on Wednesday.
… “The Islamic Republic was the main victim of chemical weapons. It is evident that Saddam carried out all the atrocities against Iran with the help of Western companies and countries,” he added.

Mottaki was speaking to reporters after he’d paid a visit to one of the two Teheran hospitals that still today, 20 years after the event, are needed to provide specialized treatment to CW-affected Iranians. The report continued:

“Western countries and companies that supplied Saddam with chemicals share the responsibility for this crime,” Mottaki said.
“Saddam acquired chemicals from more than 400 Western companies, including 25 American, 15 German, 10 British, 3 Dutch, 3 Swiss, and 2 French companies.”
Iran is deeply concerned about the influence of its archenemy, the United States, on the trial of Saddam, he added.
“We are concerned about the way the court is trying these war criminals, and America’s pressure on the court (to ignore Iran’s demand).
“Iran is closely observing the trial,” he said.

We should all understand that Iran’s claims about the Saddam regime’s large-scale use of CW against Iranians in the 1980s have been well authenticated by numerous well-informed sources, even if the “100,000” casualties may (or may not) be an exaggeration. For example, check this May 1984 report by SIPRI; or this November 1986 report from the CIA (as posted today on a Pentagon website); or this January 2003 article by an Armed Forces Press Service reporter, also posted on a Pentagon website.
Use of chemical weapons is a war crime. And do I need to note here that many hundreds as many Iranians died from Saddam’s use of CW as died in that outrageous and repressive (but actually, fairly “small”) incident in Dujail for which Saddam is now being tried?
Mottaki’s request to have Iran’s massive charges concerning the Saddam regime’s CW use heard by the court is significant– as its timing. Inasmuch as he is trying to have Iran accepted as complainant in the trial, he is probably trying to wrest some control of its proceedings away from the US authorities who have dominated it thus far (and who can confidently be expected to be extremely reluctant to have the details of Saddam’s 1980s dealings with US and other western chemical companies be aired in open court.) But at the same time, Mottaki is notably not challenging either the legitimacy of the court or even the details of the (largely US-designed) “statute” that guides its work.
For example, the Iranians could also have brought a fairly strong case against Saddam on the grounds that he initiated a quite unwarranted invasion of their country in 1980. But so far they haven’t sought to do that. Indeed, to do that would require a change in the court’s Statute, which gives it the right to try only war crimes, crimes against humanity, genocide, and a very structly limited kind of “crime of aggression”– namely, aggression against a fellow Arab country, which Iran isn’t but which Kuwait is.
The timing of Mottaki’s announcement is significant for at least two reasons. First, it comes as Iraq is in quite a degree of post-election political turmoil– and at a time when Saddam’s trial has become a more important issue within internal Iraqi politics than ever before. Asserting Iran’s interest in the trial at this time therefore has many ramifications in terms of the increase Iran seeks in the already large amount of influence that it wields over Iraq’s politics.
And second, this announcement comes as the western powers are increasing their efforts to contain and roll back an Iranian nuclear program that may or may not be intended to produce an Iranian nuclear arsenal. At such a time, to remind the western powers that Iran is the only state in modern times to have actually suffered large-scale CW attacks from a belligerent neighbor is a not-subtle way of reminding them that Iran may indeed have a better “rationale” for acquiring a nuclear deterrent than any of the existing nuclear-weapons states has, since none of them has suffered such an attack on their personnel since WW-1. (Indeed, in that press conference linked to above, Mottaki segued effortlessly from talking about the Iranian CW casualties to talking about the nuclear issue.)
It remains to be seen, of course, whether Mottaki’s announcement will actually be followed up by Iran’s ambassador in Baghdad making the formal request to the court…

The New York Times’s Douglas Jehl has an important piece in today’s paper that establishes a direct link between the ongoing global furore over the Bush administration’s transnational transportation and rendition of detainees for the purpose of coercing “confessions” and the earlier, long-disproven accusations of Iraqi-Qaeda links that were used to help “justify” the launching of the disastrous US invasion of Iraq.
Jehl’s piece is about the treatment of Qaeda high-up Ibn al-Shaykh al-Libi, who was captured by the US forces in Afghanistan in November 2001. It is based on disclosures from “current and former [US] government officials” whom he does not name. (I would guess, leaks from disaffected CIA and DIA officials?)
He writes:

The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition.
The new disclosure provides the first public evidence that bad intelligence on Iraq may have resulted partly from the administration’s heavy reliance on third countries to carry out interrogations of Qaeda members and others detained as part of American counterterrorism efforts. The Bush administration used Mr. Libi’s accounts as the basis for its prewar claims, now discredited, that ties between Iraq and Al Qaeda included training in explosives and chemical weapons.
The fact that Mr. Libi recanted after the American invasion of Iraq and that intelligence based on his remarks was withdrawn by the C.I.A. in March 2004 has been public for more than a year. But American officials had not previously acknowledged either that Mr. Libi made the false statements in foreign custody or that Mr. Libi contended that his statements had been coerced.

The whole of Jehl’s piece is worth reading (registration required, but no payment.) But what it principally underlines for me– yet again!– is the fact that, if what you’re after is solid, actionable information, then the use of torture and other forms of coercive interrogations is not only worthless but actually counter-productive.
In Egypt, “Libi” (and this is, of course, just the guy’s Qaeda-style nom-de-guerre, indicating that he comes from Libya) was coerced or tortured to the point that he told his interrogators what they wanted to hear. That was all that happened. He had apparently “disclosed” a few items about Iraq and al-Qaeda while he was still in US/CIA custody in Afghanistan. But not enough for what the masters of the “GWOT” back in Washington (i.e. Cheney and Rumsfeld) wanted to hear. So maybe there’d been some resistance from the CIA field officers to the idea of torturing the guy any further so they could get more of what they wanted from him?
It is not clear to me where in the US government the idea of “rendering” him to the Egyptians came from; but I would certainly guess, from the highest levels (i.e. Cheney and Rumsfeld).
So off he was sent. Human Rights watch has a disturbing little report about the kinds of things the Egyptian security services were doing to other uspects around that time. (And the subjects of that report even had some “official” Swedish interest in their cases, which probably meant the Egyptians were careful not to do their very worst to them… The kind of “interest” that the US government had in Libi’s case was almost the complete opposite of that, however.)
Altogether, you cannot argue that Cheney and Rumsfeld “didn’t know” what would happen to Libi in Egypt.
Jehl writes of the practice of rendition that,

American officials including Ms. Rice have defended the practice, saying it draws on language and cultural expertise of American allies, particularly in the Middle East, and provides an important tool for interrogation. They have said that the United States carries out the renditions only after obtaining explicit assurances from the receiving countries that the prisoners will not be tortured.

(If you believe that latter claim, or if you would believe any such “assurances” as those mentioned therein, then I have a nice little piece of prime real estate in downtown New Orleans I’d like to sell to you… )
According to Jehl’s account, Libi was not returned to US custody till February 2003, when he was transferred to Gitmo. “His current location is not known.” Jehl also writes that “He withdrew his claims about ties between Iraq and Al Qaeda in January 2004.” (Does anyone have a contemporary reference or link to news of that retraction, by the way? How was he able to communicate it, I wonder? And to whom? I’m assuming not to the general public, since none of the top Qaeda suspects in US custody has yet been able to speak to anyone but interrogators and US security officials.) Anyway, I guess Libi made his retraction to subsequent rounds of interrogators/handlers; and for some reason it seemed credible to them. But he was not able to transmit to the outside world at that time his further claim that his earlier accusations against Saddam had been made to interrogators in Egypt, not US interrogators.
The Americans who knew about Libi’s case back in early 2002 presumably knew full well that these accusations had been made only under the pressure Libi was getting from his Egyptian interrogators. So they at least knew the worthlessness of it.
Jehl writes:

A classified Defense Intelligence Agency report issued in February 2002 that expressed skepticism about Mr. Libi’s credibility on questions related to Iraq and Al Qaeda was based in part on the knowledge that he was no longer in American custody when he made the detailed statements, and that he might have been subjected to harsh treatment, the officials said. They said the C.I.A.’s decision to withdraw the intelligence based on Mr. Libi’s claims had been made because of his later assertions, beginning in January 2004, that he had fabricated them to obtain better treatment from his captors.

You could read this as, in part, a story about differing analyses between these two bodies, the DIA (i.e. the professional military intel) and the CIA. So the DIA had started expressing skpeticism about Libi’s accusations (in intra-administration discussions, but still not to the tax-paying public!) as early as February 2002; though it took the CIA another two years– oh, and there was a war along the way there, did I mention that?– to join them.
In the interim, Libi’s accusations about a strong Qaeda-Iraq link were used as a major pillar in the Cheney administration’s arguments for launching the war, as Jehl notes:

In statements before the war, and without mentioning him by name, President Bush, Vice President Dick Cheney, Colin L. Powell, then the secretary of state, and other officials repeatedly cited the information provided by Mr. Libi as “credible” evidence that Iraq was training Qaeda members in the use of explosives and illicit weapons. Among the first and most prominent assertions was one by Mr. Bush, who said in a major speech in Cincinnati in October 2002 that “we’ve learned that Iraq has trained Al Qaeda members in bomb making and poisons and gases.”

Jehl writes, too, that Sen. Carl Levin, the top Democrat on the Senate Armed Services Committee, has recently been trying to get some of the relevant internal reports made public. About three or four years too late there, I would say. But I suppose it’s better to see some faint glimmerings of the Dems acting a tiny little bit like an opposition party even very, very belatedly, as opposed to never?
Did I mention that there was a war in the interim?
This is all so tragic and depressing. Are these people (including the Democrats as well as the Republicans as well as all the people who run the US national-security behemoth) totally oblivious to the lessons of history? Torture doesn’t work!
In fact, it’s worse than that: Using torture can also lead you into major disasters.
These guys– all of ’em– should be kicked out of office. Maybe they could find jobs in some really seedy provincial comedy theaters doing endless reruns of Monty Python’s satirical sketch, “The Spanish Inquisition”. Especially this part, where the three cardinals first burst into the suburban living-room…

Cardinal Ximinez: NOBODY expects the Spanish Inquisition! Our chief weapon is surprise…surprise and fear…fear and surprise…. Our two weapons are fear and surprise…and ruthless efficiency…. Our *three* weapons are fear, surprise, and ruthless efficiency…and an almost fanatical devotion to the Pope…. Our *four*…no… *Amongst* our weapons…. Amongst our weaponry…are such elements as fear, surprise….

This part of the sketch seems more searingly apposite with every day that passes.
But the reality, as we know, is far from funny. We– the Americans, the Iraqis, and the whole world– were jerked into a quite unjustified war on the basis of allegations against the Saddam Hussein government that were known by many of those who voiced them to have been, effectively, fabricated from just about nothing. Along the way, the rights of thousands of detainees held by the US and allied governments have been violated in the most atrocious way. The UN and most of what it stands for has been shredded, and will take years to recover. The US has just about lost all of the “moral standing” it once had in the world (and it/we may never recover all of that.) With the US national-security behemoth occupied in managing the chaotic situation in Iraq, al-Qaeda has been able to re-group, to consolidate its control over some areas of Afghanistan and Pakistan, and to launch numerous further mass-terrorism attacks in different countries…
And worst of all, the whole proud nation of Iraq has been pulverized by war and the state machinery that used to assure the provision of basic services to most Iraqi citizens has all been dismantled.
Stop the torture! Stop it now. Stop covering up for it. Stop excusing it. Put into place a complete zero-tolerance policy from now on. Let’s rejoin the human race and solve our remaining problems using ways that actually work.

The BBC website has quite a good round-up on the WP issue. It was originally posted on November 16, and updated November 22. Crucially, the writer there quotes Peter Kaiser, the spokesman for the Organisation for the Prohibition of Chemical Weapons, as saying this:

“If … the toxic properties of white phosphorus, the caustic properties, are specifically intended to be used as a weapon, that of course is prohibited, because the way the Convention is structured or the way it is in fact applied, any chemicals used against humans or animals that cause harm or death through the toxic properties of the chemical are considered chemical weapons.”

The OPCW is the international body charged with implementing the 1994 Chemical Weapons Convention. You can find the relevant Article from the CWC’s text, Art. II, here. It reads in part:

For the purposes of this Convention:
1. “Chemical Weapons” means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;
(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices;
(c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b).
2. “Toxic Chemical” means:
Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.

Clearly, Peter Kaiser had been telling the Beeb that the caustic quality of WP does constitute such a “chemical action.”
Para 9 of Article II of the CWC includes this clarification of para 1 (a) above:

9. “Purposes Not Prohibited Under this Convention” means:
(a) …
(c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare;

So that would mean that use of WP for “indirect” military applications like battlefield illumination or the generation of a “smokescreen” are permitted under the CWC. Use of WP as a caustic agent on the bodies of any person, whether combatant or noncombatant, would not be.

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.