BAGHDAD, Nov 10, 2005 (AFP) – The murder of a second defense lawyer in the Saddam Hussein trial has threatened to unravel the proceedings of the US-supported court and raises questions about the legitimacy of the process, experts say.
Lawyers representing Saddam and his co-defendants issued a call Wednesday for the Iraqi High Tribunal, the special court set up to try atrocities committed during Saddam’s rule, be declared “null and void.”
They said they would boycott the next trial hearing set for November 28, and called for Saddam and his co-defendants to be set free.
In the opening day of the trial on October 19, Saddam and seven former henchmen were charged with the 1982 massacre of more than 140 Shiite villagers from Dujail, north of the capital.
All pleaded not guilty, but if convicted they could be executed.
If the court cannot even protect the defense lawyers, “one has to question the legitimacy of the proceedings”, said Raymond Brown, a US international law expert who in 2004 served as a defense co-counsel at the Special Court for Sierra Leone. “It raises the fundamental legitimacy of the process,” Brown told AFP. And if the defense lawyers refuse to participate “that may precipitate a crisis.”
However, presiding judge Rizkar Mohammed Amin has the authority to order the defense team to court and force them to accept Iraqi or US security, said Michael Scharf, a US professor of international law at Case Western Reserve University in Ohio. “Judge Amin has to sit down and read them the riot act,” said Scharf, who was part of an international team that helped train the Iraqi Special Tribunal judges in 2004 and 2005. Amin can also press obstruction of justice charges, which carries penalties that range from a fine, to being disbarred, to jail time, Scharf said.
“The judges are not going to let this boycott derail the proceedings,” said Scharf, interviewed by telephone from Baghdad. “There is a lot of pressure from a lot of quarters for the trial to proceed on schedule.”
Security is directly linked to the key issue of legitimacy that has dogged the court, set up with Iraq under US occupation right from the outset. “The tribunal has to be seen as fair if it is to have any modicum of legitimacy,” said Michael Kelly, a US law professor who has written on Saddam and the trial of former Yugoslav leader Slobodan Milosevic. The court “is not really in a political position to proceed with the trial of Saddam in absentia or unrepresented by counsel,” he said.
A spokesman for Prime Minister Ibrahim Jaafari said the government had offered police protection for the defense lawyers following the abduction and assassination of defense lawyer Saadun Janabi, found dead on October 21. The offer was turned down, he said. President Jalal Talabani on Wednesday again called on them to accept police protection. The defense lawyers have said they deeply mistrust Iraqi police, in part because the cops are suspected of harboring secret hit squads.
Judge Amin can force the defense to accept US protection — as has reportedly been offered — and relocate the whole team and their families to the heavily fortified Green Zone in downtown Baghdad, but then the trial risks appearing like a US-run show. To bolster its legitimacy the court needs to “distance itself as far as possible from the Americans,” Kelly said.
Janabi represented Awad Ahmad al-Bandar, a former chief judge of Iraq’s revolutionary court and deputy head of Saddam’s office. A second lawyer, Adel Mohammed Abbas, was shot dead Tuesday when gunmen opened fire on him and lawyer Tamer Hammud Hadi in Baghdad. Abbas represented former vice president Taha Yassin Ramadan. Hadi, wounded in the attack, works on the defense of Barzan Ibrahim al-Tikriti, Saddam’s half-brother and former head of the Mukhabarat intelligence services.
Spanish human rights judge Baltasar Garzon said in late October that Saddam should be tried in an international court to maximize impartiality.
But moving the trial abroad raises other issues. “You’re not immune from terrorist attacks wherever you go,” said Scharf. And a foreign trial makes it more difficult for the defense to subpoena witnesses, added Brown.
The Iraqi government vehemently opposes any such move. The government “is not prepared to move the trial outside of Iraq. Justice must follow its course and we must guarantee the conditions for a just and transparent trial,” said Jaafari spokesman Leith Kubba.