Issue #19: Are the Murders of Defense Counsel going to derail the trial? Should the IST relocate outside Iraq?

NO – Michael Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 126 (2006).

If Iraqi authorities decide to move the proceedings of the Iraqi Higher Criminal Court [commonly referred to in the western media as the IST"> out of Iraq, they would take a visible step towards subordinating civilized society to the forces of anarchy and lawlessness. The deaths of defense attorneys Abdel al-Zubeidi and Saadoun al-Janabi are a grave challenge to the work of the Tribunal, but their tragic deaths could have been prevented if they had been willing to accept the protection proffered by the authorities as well as other offers by the U.S. military. The killers have figuratively declared war on Iraqi society and they should not be allowed even the propaganda victory that would necessarily accompany a forced relocation of the trial proceedings. Moving the trials would result in extensive delays that, in the end, would not be guaranteed to ensure the safety of court officials any more than the protective measures already in place inside the Green Zone today. Moreover, relocation of the infrastructure and personnel of the court would endanger the security systems already in place to protect evidence. The symbolism of such a move would be an unmistakable indicator to the population, and to the watching wider regional audience, that the intentions of Iraqi officials to restore stability to civil society can be shaken and ultimately destroyed if only the criminals persist. The recent murders in Iraq are reminiscent of the wave of attacks against the courageous officials in Colombia who began to take on the drug cartels on behalf of their society. The systematic attacks in Colombia began with the 1984 murder of Rodrigo Lara Bonilla, who was the sitting Minister of Justice. In 1985, terrorists stormed the Palace of Justice and murdered eleven Supreme Court judges who supported the extradition of drug traffickers. In 1986 another Supreme Court Justice was murdered by drug traffickers, as were a well known police captain and a prominent Colombian journalist who had spoken out against the cartels. These narco-terrorists then commenced a lasting campaign of bombings in shopping malls, hotels and neighborhood parks killing scores of innocent people and terrorizing the general population. Much like the citizens of Colombia more than two decades ago, the people of Iraq are vigilant and hopeful that their nation has the strength of character and will to persist until the law abiding patriots succeed in returning stability and peace, not to mention the relative economic prosperity and educational opportunity of the pre-Baathist era.

It is indeed true that the sustained targeting of defense counsel has the potential to seriously undermine the ongoing trial and other investigative work of the tribunal as it prepares additional cases. The judges of the trial already in progress should convene a meeting of defense counsel in the near future to reiterate that those who committed these senseless acts of lawlessness should never be allowed the public triumph of derailing orderly and fair trial processes. The judges should discuss with defense counsel the additional support that they need in preparing their cases for the next phase of trial, and focus on the additional measures that can be implemented to ensure the personal safety of the lawyers and their families. Rather than permitting the targeted murderers of defense attorneys who had declined offers of protection from the Iraqi government, to create a gulf time and space between the victims who suffered under the regime and the trial process, the IST judges should now mandate measures of protection on the remaining attorneys. One of the innovations of the IST is the reality that the defense attorneys are governed by the Iraqi law on lawyers, and are therefore obligated under the full range of domestic ethical and legal obligations as officers of the court. They must obey the lawful orders of the judges in order to represent their clients. Finally, the judges should be mindful of the requirements of the Iraqi criminal procedure code of 1923 (which apply in full to these trials). Paragraph 212 of the procedural code states that the “court is not permitted to rely upon a piece of evidence which has not been brought up for discussion or referred to during the hearing, nor is it permitted to rely on a piece of paper given to it by a litigant without the rest of the litigants seeing it.” This provision is, of course a necessary component of an integrated trial procedure that complies with international norms. The defense attorneys are already in possession of the investigative files provided by the investigating judge, and should now solicit the assistance of the trial judges in addressing evidentiary difficulties which may be caused by the continued insurgency in Iraq. The right to a full and fair defense that is incorporated in Article 19 of the tribunal statute necessarily includes the right to gather and present defense evidence. Moving the trials in the absence of any demonstrated effect on the ability of the defense teams to represent their clients would be an overreaction that would set of an inevitable ripple of other obstacles to timely and fair trial proceedings. Iraqi authorities and the officials charged with the implementation of the Higher Criminal Court Statute should stand firm in their determination to demonstrate a trial process that is dedicated to the highest principles of justice and fairness; the current location of the tribunal in Baghdad is the situs most likely to carry that message to the people of Iraq and hence most likely to create lasting societal soil in which the rule of law can flourish.


NO: By Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 121 (2006).

I’m posting this essay just a few minutes after learning that a second member of the Saddam Trial defense team, Abdel al-Zubeidi, was killed in a drive-by shooting. It is awful that the life of another brave lawyer was cut short. And it will certainly raise questions about the capacity of the Iraqi Special Tribunal to guarantee a fair trial and to stick to its schedule.

But the public and the press needs to recognize that 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.

This is not the first trial in the world in which there is a high risk to the safety of the trial participants. The same types of concerns have been successfully dealt with in the trials of major drug lords in Central America and major terrorists in Europe and Latin America. In those trials, the defense counsel, prosecutors, judges and witnesses accept protection by the military or police. The difference here is that defense attorneys wanted their faces and identities to be broadcast, and then refused to accept protection.

Four of the five judges and three of the four prosecutors chose not to have their faces shown or their names identified in the TV broadcast for their protection. The defense counsel chose not to follow their lead because they want to be able to try the case in the court of public opinion. In fact, the day before he was killed, al-Zubeidi, gave an extensive interview to the New York Times.

After the murder of Sadoun Nasouaf al-Janavi, counsel to defendant Awad al-Bander, two weeks earlier, the Iraqi Government and the U.S. military each independently offered to provide security for the defense counsel. The US government said it would relocate the defense counsel and their families to the Green Zone, provide around the clock protection of their homes and offices, and provide armed escort to them for the remainder of the trial. The defense lawyers declined, saying that they did not trust the Iraqi Government or U.S. military. This was a ploy; a deadly gambit to justify their boycott of the trial and attempt to delay or derail the proceedings.

The defense counsel did not have any legitimate reason to reject the offer of security, since it would not have interfered with their work. In the civil law system, which governs the proceedings of the IST and is employed in a majority of countries around the world, defense counsel are not expected to go out into the field to conduct independent investigations and take witness statements. That work has already been done by the neutral Investigative Judge, who undertook a thorough investigation, and has transferred the copious case file, including thousands of pages of witness statements, to both the prosecution and defense. In the civil law system, the lawyers for both sides work almost entirely from the case file – something the defense counsel can do from the safety of their own offices. Having U.S. troops guard their homes and offices, and provide armed escort to and from the Courthouse is certainly an inconvenience, but it would not prevent them from doing their job of vigilantly defending their client.

The Defense argument that the trial should be moved in light of the killings is also unfounded. Moving the trial won’t protect the members of their families back in Iraq; only acceptance of security can do that. And no venue is absolutely safe from terrorist attacks, while the $100 million IST courtroom was built to withstand even a rocket attack. Most importantly, moving the trial would undermine the defense attorneys’ ability to effectively try their case, since a court sitting outside of Iraq would not have the power to effectively compel witnesses to testify at the request of the defense.

Judge Amin still has a card to play in an effort to persuade the defense counsel to accept US military protection, or perhaps private security guards of their choice paid for by the United States. If the defense lawyers continue to refuse to do so and to boycott the trial, Judge Amin may remind 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.

Finally, there needs to be an independent investigation into who killed the defense attorneys, perhaps conducted by the United Nations, drawing on the recent precedent of the UN launched investigation of Syrian involvement in the murder of the Prime Minister of Lebanon.


YES, at least temporarily

By Laura A. Dickinson

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 125 (2006).

November 8, 2005

The recent killings of two defense attorneys raises serious questions about whether the IST can operate fairly and impartially inside Iraq under current conditions. Today, gunmen shot and killed Abdel al-Zubeidi, who was representing Hussein’s co-defendant, the former Iraqi Vice President Taha Yassin Ramadan. Another defense attorney, Thamir al-Khuzaie was seriously wounded. Last week, Saadoun al-Janabi, the defense attorney for Hussein co-defendant Awad al-Bandar, was also brutally killed. The sustained targeting of defense counsel seriously compromises the legitimacy of the trials. Iraqi authorities should thus seriously consider moving the proceedings, at least temporarily, to a nearby location outside Iraq such as Dubai.

The decision to hold the proceedings within Iraq reflects a strong commitment of Iraqis to own the process domestically. The location of a war crimes tribunal outside the territory where crimes occurred, as in the case of the International Tribunal for the former Yugoslavia, may contribute to a disconnect between the work of the tribunal and the local populations affected by its work. Indeed, such a disconnect can threaten the legitimacy of a war crimes tribunal. Yet the security situation has so deteriorated within Iraq that any benefit of domestic proceedings is in danger of being completely overshadowed by the risk of violence.

Iraqi authorities should thus seriously consider moving the proceedings temporarily to a nearby location such as Dubai. A temporary move would preserve the essentially domestic character of the proceedings yet at the same time would also address the concern that proceedings in Iraq cannot take place fairly due to security concerns. Such a move would would both signal the tribunal’s commitment to secure conditions for all participants as well as help improve actual security on the ground. Moreover, such a temporary move is not without precedent. For example, the agreement between the United Nations and the government of Sierra Leone to establish a hybrid domestic-international war crimes tribunal provides that the court “shall have its seat in Sierra Leone” but “may meet away from its seat if it considers it necessary for the efficient exercise of its functions, and may be relocated outside Sierra Leone, if circumstances so require.” While the risk of attack on lawyers, judges, defendants, witnesses, and others involved in the proceedings could exist anywhere in the world, the greatest risks undoubtedly are posed within Iraq. Iraqi authorities should thus seriously consider holding proceedings outside the country until the security situation improves.

Article 10
Seat of the Special Court
The Special Court shall have its seat in Sierra Leone. The Court may meet away from its seat if it considers it necessary for the efficient exercise of its functions, and may be relocated outside Sierra Leone, if circumstances so require, and subject to the conclusion of a Headquarters Agreement between the Secretary-General of the United Nations and the Government of Sierra Leone, on the one hand, and the Government of the alternative seat, on the other.

Posted @ 11:21 AM | Experts Debate the Issues: The Dujail Trial