Issue #17: The Significance of the Kidnapping/Murder of Defense Counsel

By Raymond M. Brown

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 123 (2006).

The kidnapping and murder of Sadoun Nasouaf al-Janavi, counsel to Awad al-Bander is more than just a personal tragedy for his family and a blow to his client’s defense. It raises a fundamental challenge to the legitimacy of this first IST trial and conceivably to the functioning of the Tribunal itself. A court cannot claim legitimacy if it is attached to a regime which can not guarantee the physical safety of trial participants. Protected participants must include defense lawyers representing despised or controversial defendants.

This is not to suggest that any persons or groups associated with the establishment of the Court or the functioning of its processes are responsible for this criminal act. To the contrary, I assume that they regret this violent episode and have done everything that could be asked of them to prevent it.

Nonetheless, the purposeful slaughter of defense counsel shines a bright light on the emerging dark secret of the “system” of international justice (a system I still support.) That secret is the imbalance between the resources of prosecutors and the defense. Justice Jackson acknowledged this problem in his famous Nuremberg opening. (The inadequacy of his response to his own rhetorical “question” remains for me a flaw in his universally praised allocution.) Early in his statement Jackson noted:

Before I discuss particulars of evidence, some general considerations which may affect the credit of this trial in the eyes of the world should be candidly faced. There is a dramatic disparity between the circumstances of the accusers and of the accused that might discredit our work if we should falter, in even minor matters, in being fair and temperate.

There will be time enough in this Blog to examine more broadly potential resource “disparities” at the IST and perhaps at the IMT. Right now we must focus on the resource which is the sine qua non for any fair trial. That essential ingredient is the service of zealous defense counsel who can investigate, confer, speak and work without fear. A regime which cannot guarantee the opportunity for defense counsel to perform this way cannot claim to dispense justice in its courts.

Although David Crane and I probably differ on “disparity” questions at the Special Court in Sierra Leone I can say that within the confines of the Special Court compound, or in Freetown, or on the complex journey to and from Sierra Leone’s capital I never felt unsafe. I am not aware of any defense counsel expressing fear for his or her physical safety in a way that implicated the discharge of their functions.

Whether this feeling of safety was because, or in spite of the precautions taken by the UN I cannot say. However, it is important to remember that Sierra Leone had just emerged from a decade of civil war and that unrest continued in western Liberia as the SCSL trials commenced.

A Battallion of Nigerian (UNAMSIL) troops surrounded the Court and Detention facilities. The Court’s Director of Security insisted that non-Sierra Leoneans not visit Eastern portions of the country adjacent to Liberia without Military escorts. Finally, the Special Defender arranged (for better or worse) for Defense counsel to fly on UNAMSIL’s rickety fleet of ancient ex-Soviet helicopters. (Two of these craft crashed the day before we departed the US for trial). Resource disparities existed at the Special Court but murder of defense counsel and the consequent chilling or inhibition of vigorous representation did not.

It may be that a lifetime spent as defense counsel dealing with permutations of fear and intimidation in municipal and international fora have biased me. It may also be that my strong opposition to the proffered legal, strategic and foreign policy bases for the war in Iraq have predisposed me to see the specter of illegitimacy leach from an occupation regime to the IST whose coattails it has sought to ride to international legitimacy.

Biased or not, I cannot see how a single trial or a judicial system can survive assaults on the quality of its justice if it cannot provide an opportunity for defense counsel to function without fear of non-judicial execution. This is especially true if the accused are persons, like Saddam and his satraps who are already believed to be culpable by all the world except their most fervent followers.

The venue issue from which this problem flows is not new to international legal decision making. The disappearance of normal state functions in Yugoslavia and Rwanda presaged decisions to place the Ad Hoc Tribunals in the Hague and Arusha (the latter despite criticism from the RPF). Different circumstances on the ground influenced placement of arguably “mixed” courts in East Timor, Sierra Leone and prospectively in Cambodia.

The choice to hold IST trials in Iraq while security remains a deep problem raises the unwelcome aroma of political decision making. Allowing trials to proceed in an environment where the process is tainted by violence and fear undermines legitimacy. Whether the choice is legal or political, it is a bad one.

Posted @ 1:16 AM | Experts Debate the Issues: The Dujail Trial