Essay #25: A Changing of the Guard at the Iraqi Tribunal

By Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 136 (2006).

On January 17, the international press reported that Rizgar Mohamed Amin had decided to step down as Presiding Judge of the Saddam Hussein Trial in the face of criticism about how he has managed the proceedings. Judge Amin will reportedly be replaced by Judge Mohamed al-Hamash, who was one of the four other members of the panel trying the DuJail Case. One of the two reserve judges who have been observing the trial will fill the vacancy on the five-member bench created by Judge Amin’s departure.

This changing of the guard should not be seen as a sign that Judge Amin had bungled the trial (as his critics have asserted). Despite the frequent (and sometimes successful) attempts by the defendants to disrupt and derail the proceedings, in just five trial days (October 19, November 28, December 5, December 21 and December 22), the prosecutor completed an opening statement, and fourteen witnesses testified and were cross-examined by the defense -- a very efficient pace even by American judicial standards. With forty witnesses still to go, the prosecution has already proven the scale of the atrocities, the direct involvement of several of Hussein's co-defendants, and the command hierarchy - the key elements necessary for a conviction in this case. And especially for those who understand Arabic, the testimony of Saddam's victims has been both moving and compelling.

This does not mean that there was not room for improvement, and perhaps Judge al-Hamash is the man for the job. I remember Judge al-Hamash from the IST training sessions in London last year. He's a Shi'ite, about ten years older than Judge Amin, and has a more outgoing and forceful judicial temperament.

Judge al-Hamash can use his new position to instill a greater degree of control on the proceedings. He can, for example, insist that for now on Saddam Hussein only speak through his lawyer, rather than address the court and the witnesses directly, except when it is the defendant's turn to testify as a witness on his own behalf. And Judge al-Hamash can enforce this by removing the microphones from the defendants' dock, so that the televised coverage does not pick up any disruptive outbursts.

Judge al-Hamash can also insist that only the lead Iraqi counsel for each defendant actively participate in the courtroom proceedings, rather than permit former US Attorney General Ramsey Clark to continue to address the court as Judge Amin had allowed. This may prevent Clark from continuing Saddam Hussein's efforts to turn the trial into an indictment of U.S. foreign policy.

Moreover, Judge al-Hamash can use the fact that the lead attorneys are officers of the court to remind them that misbehavior can earn them sanctions, including fines and disbarment from the Iraqi Bar. And, following the precedent of the Yugoslavia Tribunal and Rwanda Tribunal, he can appoint stand-by defense counsel who would observe the proceedings and be available to step in if, for example, the defense counsel ever threaten another boycott or begin to act disruptively. This would enable the judge to better keep the defense counsel in line through the omni present possibility that they can be replaced at a moment’s notice.

In taking such actions, Judge al-Hamash must be extremely careful not to appear too heavy handed. If Judge al-Hamash yells at the defendants, for example, as Judge Richard May did during the Milosevic trial at The Hague, it will only play into the defense strategy of trying to cast the proceedings as unfair and illegitimate. As Judge Amin understood, in the long run, it is far more important that the trial be seen as scrupulously fair than for the judge to be seen as winning the battle of the wills against Saddam Hussein.

UPDATE, January 23, 2006:

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 137 (2006).

On January 23, 2006, the press reported that judge Raouf Rashid Abdul-Rahman, rather than Judge Said al-Hamashi, would be replacing Judge Rizgar Amin as presiding judge of the Saddam Hussein Trial when it resumes on January 24. Judge Said al-Hamashi is under investigation by the Debathification Commission, which believes he may have been a former member of the Ba'ath party -- something he continues to deny. Meanwhile, efforts are still underway to convince Judge Rizgar Amin to return to the bench.

Judge Raouf Rashid Abdul-Rahman is a 64 year-old distinguished Iraqi Judge of Kurdish ethnicity. I remember him as an active participant during the training sessions for the judges in London in October 2004. I think he is likely to be more forceful than Judge Rizgar Amin, but maybe a little lowered keyed than judge Sa'id al-Hamashi would have been. It is a positive development to have a Kurd like Judge Raouf rather than a Shi'ite like Judge al-Hamashi preside over this trial involving Sunni perpetrators and Shi'ite victims, since it provides a measure of objectivity.

The game of musical chairs that is unfolding at the Saddam Trial is bound to take its toll on local and world opinion about the legitimacy and efficacy of the proceedings in Baghdad. The Tribunal's credibility has taken a hit, but it is far from critically wounded by these latest developments. I think the Tribunal will push through this latest setback, as it has pushed through its other chalenges, including the assassinations of defense counsel in October and the resignation of one of the judges when it was disclosed on the first day of the trial that his family member had been tortured by the Ba'athist regime.



Resignation Casts Terrible Pall over Tribunal

by William A. Schabas

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 138 (2006).

The resignation of the presiding judge casts a terrible pall over the ongoing trial of Saddam Hussein. The judge said he was resigning because of political interference or pressure.

For those of us who are used to living in a legal system with an advanced and sophisticated judiciary, it is difficult even to comprehend such a situation. Who ever heard of a senior judge in the United States, or in Europe, resigning in the midst of a high-profile trial because of political interference? Who ever heard of a senior judge in one of these jurisdictions even complaining about political interference?

I can recall a major scandal in Canada some years ago when a cabinet minister telephoned a judge, who was a personal friend, about some relatively insignificant matter. When this came to light, there was a tremendous outcry in Parliament and in the media, and the minister resigned, of course. Although some contributors to this blog have waxed eloquently about the 'trial of the century', the resignation of the presiding judge shows what a poor excuse for justice is actually underway in Iraq. Note that in the Canadian example it was the minister who had administered the pressure who resigned in disgrace, and not the judge who was on the receiving end.

Will the problem in the Saddam trial be solved? Or will the presiding judge simply be replaced by a colleague with a thicker skin and a higher threshold of tolerance for political interference and pressure? Will this be treated as simply one more 'incident' in a process that has already seen the tragic assassination of defence lawyers?

When the Iraqi tribunal was being established, many expert commentators pointed to the need for some kind of international involvement in order to enhance the credibility of the Tribunal. And while the idea that the trial would be contracted out to foreigners was justly rejected as patronizing and even neo-colonialist, one thing that can be said of international experts is that they are relatively immune to pressures from domestic political actors. The resignation of a presiding judge in the middle of a trial because of
political interference and pressure is unprecedented. It is a sad chapter in international justice.

This is a wake-up call to all who are concerned that the trial of Saddam Hussein be carried out fairly and impartially. It may well be that the current situation in Iraq, which borders on anarchy, is simply not conducive to proper justice being rendered. If that is the conclusion, the trial should be stopped, or it should be moved to a venue where justice can be done.


A Response by M. Cherif Bassiouni

Judge Rizgar, in my opinion, reacted negatively to criticism by his colleagues as well as by others in government, the RCLO, those who work and
live in the green zone, and by public opinion in Iraq (mostly Shi'a and Kurds). It is too bad that they brought pressure on him by criticizing him. After a while, people will surely get tired of Saddam's antics, and it is better to have him run the full course of antics and have people see through it than have a presiding judge who tries to curtail him and thus transform the bully into a victim. That's why I don't share Bill's view on the matter.



The Winds of Public Opinion

by David M. Crane

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 139 (2006).

William O. Douglas declared in Craig v. Harney that: “Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” The resignation of Judge Rizgar is a set back to say the least for the trial of Sadaam Hussein and his henchmen. Though I do not belittle his courage, and the circumstances he finds himself in to seek justice for the Iraqi people, this is a moral victory for the various indictees and a blow to the rule of law in Iraq.(1)

The back-bone and the Achilles heel of any international tribunal are its judges. The entire process succeeds or fails in large part on their professional and personal conduct. Public perception of the law inevitably is formed by how judges control their court rooms procedurally. Perceived personal or professional weakness on the part of a judge or a panel of judges in a chamber weakens confidence in the law by the victims, their families, indeed, in the very country the tribunal finds itself. I certainly saw this in spades with the Special Court for Sierra Leone.

The extant resignation shows a weakness, real or perceived. That weakness will be exploited legally, practically, and politically. It certainly brings into question the entire legitimacy of the process cobbled together by Iraq and the United States. I have not been shy about my concern about the way the Iraqi Special Tribunal (IST) was put together. Rightly or wrongly, it has been “snake-bitten” from the start. This resignation fosters that perception. The IST exists in a part of the world where strength and perceived power matter. To this point, the IST appears to be faltering in the eyes of the public, particularly the Iraqi people. In a developing democracy, a lack of respect for the power of the law can be disastrous.

Legally, this tortuous process will move forward. As in Sierra Leone, a judge that leaves can be replaced. Politically its future is in doubt. Make no mistake about it; politics is like a red thread that runs through the trials. Ignore it and politics could unravel the whole process.

I wonder if an internationally recognized tribunal, such as a hybrid, put together by the United Nations and the Iraqi government, placed regionally in a safe environ, would have had such trouble with politically cowed judges? The IST will survive this resignation, but what happens when it really starts to get difficult during findings and sentencing?

Owen. M. Fiss stated: “That the function of a judge—a statement of social purpose and a definition of role—is not to resolve disputes, but to give the proper meaning to our public values” (2) I pray that this public value is not backing down in the face of adversity.

---
(1) Craig v. Harney, 331 U.S. 367, 376 (1947).
(2) Owen M. Fiss, “The Supreme Court, 1978 Term—Foreword: The Forms of Justice,” 93 Harvard Law Review 1, 30 (1979).

A Changing of the Guard at the Iraqi Tribunal
by Michael A. Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 140 (2006).

The resignation of Judge Rizgar Muhammad Amin from the ongoing Dujail trial is far from the institutional catastrophe that some critics of the Iraqi-led process have postulated. The resignation is an intensely personal matter that has, of necessity, been a matter of extreme public curiosity and comment. The fact that the trial will resume on time with Judge Sa'id al-Hammashi presiding is perhaps the strongest testimony to the resilience of this maturing institution.

The Rules of Procedure adopted by the Iraqis and published in the official gazette of Iraq envision the resignation of a judge and provide a mechanism for handling the resignation. Judge Rizgar displayed enormous personal courage in accepting the televised role as presiding judge. Day after day before millions of viewers from around the world, he demonstrated an unflappable judicial demeanor and navigated the unfamiliar terrain of a high profile trial in a way that strove to serve as a model of fairness even for observers who have no familiarity with Iraqi law or rules of procedure. The cornerstone of the Iraqi Higher Criminal Court is that it functions as a wholly independent component of the Iraqi domestic justice system; there is no evidence whatsoever to suggest that Judge Rizgar’s decision had anything to do with improper external attempts to manipulate the trial. Such judicial independence is the hallmark of a process that is fundamentally fair and legally defensible.

Institutional independence, however, should not equate to secrecy and justice conducted behind the veil of secrecy. The Iraqis understood that a televised trial would be a powerful demonstration of progress towards a society built on respect for law. At a minimum, the televised proceedings can contribute to a sense of societal restoration in the aftermath of the horrors endured by ordinary people under Ba’athist rule. These proceedings have thus far mesmerized the population and hence the politicians that seek the support of the Iraqi people. The process has, to date, been a trial by law based on evidence produced under the rules specified by law rather than a sham trial based on innuendo and emotion. In fact, it is precisely the public nature of the trial that generated such intense commentary and criticism that is the most visible validation of the faith that the Iraqi Higher Criminal Court officials place in the process created under the Statute.

Though he worked at the center of the vortex of intense political and public interest, Judge Rizgar’s efforts have demonstrated a process that to date has been fair and expeditious as required by Article 20 of the Statute. Judge Rizgar strove to perform his duties in the independent and impartial manner required by the Statute, as evidenced by the fact that both the defense and prosecution have grumbled about some of his decisions. He has bent over backwards to balance the right of those sitting in the dock to present a full defense, even as he strove to prevent defense gamesmanship from derailing the vital work of the court. When measured by the standards of similar high profile cases, the Dujail trial has moved along well and the evidence has been powerful. Nevertheless, one Iraqi newspaper commented that the resignation was "late" and criticized the judge for his "leniency" with Saddam Husayn.

No trial process is perfect and no trial can be perfectly pleasing from all perspectives. This trial in particular has riveted public and political attention. A free press and informed public is one of the benefits of democracy that is currently flourishing in Baghdad and across Iraq. In a free country, everyone is entitled to express their opinion. Judge Rizgar has apparently resigned in reaction to the flood of opinion surrounding his decisions during open court. In my opinion, those who believe in the rule of law should be vocal in thanking Judge Rizgar for his service and for his demonstrated commitment to the principles of justice and fairness.



De-Baathification and Transitional Justice

by Mark Drumbl

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 141 (2006).

Following the resignation of Judge Amin, and the controversy over Judge Hammash with regard to his alleged links to the Ba'ath Party, a new judge apparently has emerged as chief investigatory judge. This is Judge Rahman, a Kurd who already is on the panel.

With regard to the discrediting of Judge Hammash, I suspect the realities in Iraq bear some similarity to those in other societies trying to move beyond systemic human rights abuses, where purging is important to ensure credibility and produce the truth; but also can be used as a lever to denounce virtually anyone who occupied any position of authority. This might especially be the case in Iraq, where the authoritarian government ruled for many decades.

I found it telling that the NYT reports today that the Judge Hammash situation has "threatened to bring further disarray to a trial that has already seen its share of chaos." (Michael Scharf also seems to suggest that the debaathification situation also hurts the court's credibility). I would think that this controversy regarding the past life of Judge Hammash differs from the controversy with regard to the political pressure on Judge Amin, or my broader concerns that the trial, at present, might fuel instead of dissipate violence. Discussion regarding the role of past officials in the future direction of the country - despite its risks of politicization and abuse - can be salutary, insofar as it is yet another vehicle to recognize accountability and create a discursive space. Perhaps that is naive and theoretical. Also, just because the Court's credibility is impaired doesn't mean that the credibility of transitional justice more generally in Iraq is impaired - once again, it simply could be that it is too soon to have a court, or that the weight of too much ambition has been placed on the court's shoulders. I'd be curious for the thoughts of others, especially Nehal Bhuta, whose posts on this issue have been particularly
informative.

Posted @ 2:16 AM | Experts Debate the Issues: The Dujail Trial