The Shootings of Saddam's Lawyers: Why the U.S. and the U.N. Should Play a Role in Ensuring the Defense Team's Safety As the Next Tribunal Court Date Approaches

By NOAH S. LEAVITT

Monday, Nov. 14, 2005

At least three members of Saddam Hussein's defense team have now been shot in Baghdad -- two fatally. As a result, Saddam's lead attorney, Khalil al-Dulaimi, has said that they will no longer recognize the Supreme Iraqi Criminal Tribunal, and will not show up at its next hearing, currently scheduled for November 28. Moreover, an AP story yesterday revealed that hundreds of other lawyers have quietly withdrawn from Saddam Hussein's defense team, citing extensive security risks.

Al-Dulaimi and others on the team have refused to appear on the 28th "unless there is a direct, neutral international intervention that guarantees" security. They have called upon the international community to send a committee to investigate the shooting. They have also called for the trial to be moved to a neutral country -- a request the Iraqi government previously had rejected.

If Saddam's defense team does not turn up November 28, Presiding Judge Rizgar Amin plans to install "backup lawyers" appointed by the Tribunal. But let's hope it doesn't come to that.

President Bush famously stated that the Tribunal's proceedings will give Hussein "the trial that he did not afford his fellow citizens when he was in power." Now, it is seriously in doubt whether the tribunal's first trial -- for the 1982 killing of 148 Shi'ite men from the town of Dujail -- can even begin.

The trial is taking place in a political tinderbox -- as I explained in my last column -- and more so now, than ever, for Iraq's historic national parliamentary election is scheduled for December 15.

Iraqi sources from the U.S.-backed government recently told The Washington Times that they were determined that the trial resume as scheduled on November 28, for they feel that a display of toughness with Hussein will almost certainly benefit the Shi'ite parties in Dec. 15 elections. Indeed, the elections will determine the political structure of Iraq for at least the next four years.

Conversely, the defense team -- drawn heavily from the Sunni Arab minority dominant under Hussein -- not only has reason to fear for its lives, but also has ample reason not to want the election to go in Shi'ites' favor, and, of course, reason not to want the trial to go forward. In fact, some of Saddam's lawyers have publicly stated they hope to delay the trials indefinitely. They appear to believe that a deterioration of conditions in Iraq will ultimately lead to the complete cancellation of the proceedings.

With the recent shootings seriously challenging the rule of law in Baghdad -- and, as I will explain, having been designed to do just that -- not only the Tribunal itself, but the U.N. and the U.S. must work together to ensure the safety of everyone involved in the Tribunal's proceedings.

Technically, the U.S. may no longer be an occupying power -- that status, it claims, ended when the coalition returned sovereignty to the Iraqis on June 28, 2004. But practically, of course, it retains immense power and troop presence in Iraq.

The Shooting: Brutal Assassinations Flout the Rule of Law in Baghdad

The first shooting of a defense team member, Saadoun al-Janabi, occurred on October 19, the day of Saddam's first court appearance. Reportedly, the assassins behind the shooting were from the Interior Ministry. In reaction, the Iraqi Bar Association immediately called for an end to any involvement with the Tribunal.

Then, assassins shot two defense team members -- one of them Adel al-Zubeidi, the attorney for Saddam's brother and his former vice-president -- right next to the Iraqi Bar Association's main office; Zubeidi was killed, but the other man survived. Plainly, the assassins choose the site of the shootings to make a statement about the tenuousness of the entire Iraqi legal infrastructure.

How Much Security Is Enough? And Provided By Whom?

From the start, Saddam's lawyers and the Iraqi government have sparred over the level of security necessary to ensure protection. The lawyers have demanded that the Iraqi government provide them with fifteen bodyguards each -- a level of protection essentially equal to that provided to top Iraqi cabinet ministers and American officials in Baghdad.

After the first killing, officials working with the Tribunal said that they were ready to provide "substantial protection" to the defense lawyers -- though still not, apparently, the fifteen bodyguards sought. According to Prime Minister Ibrahim Jaafari the defense team spurned an offer of safe houses inside the heavily-fortified Green Zone in central Baghdad.

Defense lawyers have said repeatedly that they do not trust the Shi'ite Islamist-dominated Iraqi security forces to guard them. That may have been one reason why

Iraqi President Jalal Talabani said last Thursday, "We are ready to provide them with security, with protection, with bodyguards, but unfortunately they do not want to ask us, the government."

What Are the Tribunal's Options?

Under its basic statute, which became effective Dec. 10, 2003, the Tribunal is responsible for the security of those involved. Though the statute expressly states that the Tribunal protects only the safety of "victims" and "witnesses," its guarantee of a fair trial conducted in accordance with the Statute and the rules of procedure and evidence, with "full respect for the rights of the accused" clearly implies that it must protect the safety of defense attorneys as well.

Indeed, if trial proceedings are jeopardized by defense attorneys' absence, or by threats to them, that could be a basis for appeal, under Article 25(a)(2) of the statute.

So what should the Tribunal do -- assuming it isn't inclined, as it seems not to be, to move the trial outside of Iraqi and apply international standards, as many human rights groups (and Saddam's team) have advocated, or to let Saddam represent himself, which has proved something of a debacle in the Milosevic case?

The Tribunal could move the trial to a secret location for safety -- and broadcast its proceedings (ideally, live) from there. Article 2 of the statute requires that the Tribunal shall have its seat in the City of Baghdad, or, following a written proposal made by the President of the Tribunal, in any other Governorate in Iraq as determined by the Governing Council or the Successor Government. This kind of secrecy, though, may harm the public image of the proceedings and its perception of their fairness.

Alternatively (or in addition to moving the trial), the Tribunal could work with the U.S. and the U.N. to develop a plan to increase security.

Article 6(b) of the Statute says the President of the Tribunal "shall be required to appoint non-Iraqi nationals to act in advisory capacities and shall be entitled to request assistance from the international community, including the United Nations."

This language opens the door to exploring a wider range of security options than currently appear to be under consideration.

Why the U.N. and the U.S. Should Get Involved Here

Thus far, Iraq's insistence -- prompted by the U.S. -- upon retaining the death penalty as Saddam's likely penalty, has prevented the United Nations from playing any significant role in the investigation or prosecution of Saddam's regime's crimes. Moreover, the U.N.'s Baghdad headquarters has been closed since a truck bombing in August 2003 that killed 22 staff members, including the chief representative in Iraq.

But it's possible the U.N. could take a role. This week, the Security Council voted unanimously to extend the mandate of the American-led forces until the end of 2006 -- meaning that the U.N. too, must take some responsibility for what occurs in Iraq.

Also, Secretary General Kofi Annan has loudly condemned the recent assassinations, and has underscored the importance of the security of all involved with the Tribunal as necessary to ensure a fair trial. The Secretary-General has also hoped out loud that the Tribunal will uphold international standards of justice necessary to ensure its legitimacy, fairness and independence.

And just this past Saturday, Annan made his first visit to Iraq since Hussein's capture, meeting with transitional political leaders in advance of the December 15 elections.

The Tribunal should ask Annan to return to Baghdad to address how the Tribunal, the U.S. forces and their Iraqi trainees, and the major international organizations can work together to improve the security of those involved in Saddam's trial. I think Annan would likely do so, for he knows the global costs of failure are enormous: He recently told the BBC that, in his view, Iraq has become an even greater terrorist center than the Taliban-ruled Afghanistan.

Of course, the United States, too, has a large responsibility here -- having launched the invasion, and had a heavy hand in the new Iraqi government. It ought to aid the U.N. and the Tribunal in ensuring that the defense team is truly safe -- and that its guards do not turn out to be moles allied with its opponents. It should provide funding for additional security forces, as requested.

November 20 -- the week before Saddam is scheduled to return to court -- marks the 60th anniversary of the start of the Nuremberg Trials, set up by the Allied powers after World War II to prosecute Nazi war criminals. The first Nuremberg Trial, run by the Allies' International Military Tribunal, set the precedent for major prosecutions of individuals for extensive wartime atrocities.

It would be a fitting tribute, and a sign that the international community has learned from the lessons of the aftermath of WWII, for the major players to reach out to one another and cooperate on ensuring the safety of all those involved in Saddam's trial, so that justice can be protected.


Noah Leavitt, an attorney, teaches at Whitman College. Leavitt can be contacted at [email protected]

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