The killing last week of Adel Muhammad al-Zubaidi, the second defense lawyer working on the Saddam Hussein trial to be murdered, again brings to the fore the questionable ability of the Iraqi High Tribunal (which now officially has changed its name from the "Iraqi Special Tribunal") to conduct war crimes trials in the middle of an ongoing insurgency that shows no sign of abating. Another defense attorney, Thamir Mahmoud al-Khuzaie, was seriously wounded in the attack, which came less than three weeks after the kidnapping and murder of Sadoun al-Janabi, who represented another of Saddam Hussein's co-defendants.
The Iraqi Bar Association, speaking on behalf of the defense lawyers representing Saddam Hussein and his co-defendants, repeated its statement that the defense lawyers would boycott the trials due to safety concerns. The lawyers had first called for a boycott when Janabi was murdered less than 36 hours after the trial began.
Already, there are larger stories being told through these killings.
Those with competing interpretations of this chain of events took little time to stake out their positions. Michael Scharf, who helped to train the Tribunal's judges, claims that Zubaidi's death is the fault of the defense lawyers themselves, who he says have refused offers of American military protection that were made after Janabi's assassination. Scharf calls this decision "a ploy; a deadly gambit to justify their boycott of the trial and attempt to delay or derail the proceedings." Meanwhile, Human Rights Watch released a statement after Janabi's killing, stating that it was "gravely concerned that this killing will have a chilling effect on the willingness of competent lawyers to vigorously defend the accused in these cases. Such an outcome will seriously undermine the ability of the court to provide a fair trial."
I think that the most common view of the interplay between transitional justice institutions and postconflict stability emphasizes the former as cause and the latter as effect, with steps taken toward accountability and reconciliation seen as promoting national rebuilding and weakening the hand of spoilers to a peace process. But there is also a minimum level of order that must exist, or be made to exist, before institutions like the Iraqi High Tribunal can carry out their functions without slipping below minimum levels of due process, or retreating entirely from the public eye into some form of protective secrecy. Safety concerns led to the location of the ICTY in The Hague and the ICTR in Arusha, which was followed by rampant criticism that the isolation of the Tribunals from the victims of the crimes being tried undercut the former's ability to carry out their transitional justice functions.
In Iraq, some of the proposed solutions risk following down this same path toward geographic, and thus psychological, isolation, with suggestions that the IHT be moved abroad, or that it operate in greater secrecy. Additionally, if the Iraqi defense lawyers make good on their promise to sever all ties with the Tribunal, there might be no alternative to the appointment of defense counsel to represent Saddam Hussein and his co-defendants, a possibility that the Tribunal has already floated.
Yet to the extent that such a move degrades the quality of representation -- or more importantly, to the extent it is portrayed as doing so -- Saddamist remnants will be more successful in painting the Tribunal's proceedings as victors' justice, and will more effectively challenge whatever history of Saddam Hussein's crimes the Tribunal's judgment will propound. Similarly, the truth-telling effect of the Tribunal's work, and its ability to stem support for the insurgency in real-time, would be hurt by any decrease in the ability of the public to follow the trials. As the ICTJ states in its latest paper (p. 21), a closed trial "will not achieve the key goals of justice for the victims and accountability for the perpetrators." (This notion seems to be clear to the Tribunal and its allies, who are in the process of trying to increase television coverage of trial proceedings.)
As with so much in law and politics, the perception of what is occurring is at least as important as what actually occurs (arguably more so). Most are familiar with the oft-quoted legal maxim that justice must not only be done, it must be seen to be done. In periods of transition, I think that the latter requirement is merely a subset of the former, for transitional justice requires societal acceptance of the transition away from violence, if the transition is to be effective.
Calibrating the appropriate response to the murders of these two defense lawyers is but a single instance of the complex calculus that must take place, for transitional justice both offers a hope of transition from violence, and simultaneously requires a foundation of stability in order to effectively function.
At the risk of sounding naive or uninformed, what is really happening to allow these defense attorneys to be assassinated/murdered? After the first killing, the defense team was supposed to get protection -- where was that protection? Why was it ineffective? Were the killers able to infiltrate/bypass security because of widespread condonation of violence against the defense, or were they merely tactically savvy and/or lucky?
I have no doubt that these are questions are being considered and hopefully answered by a criminal investigation, but I'm thinking we need to know the answers before we can cogently consider the impact and implications of the killings on and for transitional justice in Iraq.
To know whether it is possible to conduct this trial in Iraq successfully, we have to know more about why it has faltered to far.
Posted by: gaby at November 14, 2005 01:43 PMBy the way, Thamir al-Khuzaie, who represented two of Saddam's co-defendants and was wounded in last week's attack, has now fled the country...
Christopher, you raise some interesting theoretical issues here, especially in your consideration of this point: the most common view of the interplay between transitional justice institutions and postconflict stability emphasizes the former as cause and the latter as effect...
I think you're right to describe that as "the most common view". The unexamined assumption there, though, is that the TJ mechanism in question is one introduced in a post-conflict context. Sadly, though, nearly all or perhaps all of the prominent war-crimes prosecutions pursued since 1993 were launched w/ regard to conflicts that at that time had not, actually, been sustainably terminated at the political level. Iraq, it seems evident to mne, also falls into that category.
In a divided society, any attempt to discover "the" truth about conflict-related atrocities-- whether this is in a war-crimes court or a truth commission-- has the potential to be extremely divisive. It can open up old wounds and certainly runs the risk of retraumatizing survivors of the violence. A criminal proceeding-- as opposed to a truth commission-- has a particularly strong tendency to be divisive, for a number of reasons. The court proceedings are very adversarial; the proceeding ends with the designation of "winners" and "losers"; little nuance, context, or broader explanation (of the type so ably provided in, for example, the TRC's final report in South Africa) can find its way into the final record of a criminal court...
For these reasons, the UN-established ad-hoc courts for former Yugoslavia and Rwanda have proven themselves largely incapable of living up to the hope expressed by the Security Council that their operation could "contribute to national reconciliation" in the societies concerned. The ICC's Statute (the Rome Treaty) did not even mention such a lofty goal.
The success of South Africa's Truth and Reconciliation Commission in contributing to national reconciliation, in comparison with the record of the two ad-hoc courts, is due to a number of factors. Firstly, the TRC was not established until a year after the signally successful political transition that South Africa made out of apartheid-era conflict and into full democracy. Second, under its mandate it had to look even-handedly at atrocious violence committed by people from both (all) sides. Third, the nature of its proceedings was skewed heavily toward building a sound, nationwide basis for national reconciliation through understanding the whole broad phenomenon of atrocious violence rather than through simply pointing fingers of blame...
But I think the timing component there was not at all trivial.
The timing component in the Nuremberg and Tokyo Trials is also worth examining...
I wrote a bit about the timing question on this previous TJF post.
I also wrote about the Saddam trial on this post at my Just World News blog.
Gaby-- regarding "protection" for the defense lawyers... The NYT and other news reports stated that the lawyers refused the Iraqi authorities' offers of protection because they accused them of having been implicated in the Janabi killing. Fears of atoricous actions by the Iraqi authorities are, sadly, not far-fetched. The point Christopher makes about the need for a "minimum level of order" is absolutely correct. Public security in Baghdad today is far, far inferior to that in Nuremberg in late 1945 and 1946, when it was provided by a massive complement of US occupation forces.
Posted by: Helena Cobban at November 15, 2005 11:22 AMThe NYT reports that the Iraqi High Tribunal and the defense lawyers representing Saddam Hussein and his co-defendants have reached an agreement for the latter to end the boycott that I noted in the original post. The article notes that the defense lawyers accepted protection offered by United States and Iraqi forces, and that the lawyers plan to attend the next session of the trial, scheduled for Monday 28 November.
The article goes on to note that as the offer of protection was made prior to the defense attorneys' boycott announcement, the agreement to return may reflect strategic considerations, including the desire to postpone the likely death sentence that Saddam Hussein will face, presumably past his 70th birthday. (I have read multiple times that Iraqi law prohibits the execution of convicts over the age of 70, but I admit that I have not confirmed this.)
While we shall have to wait until they return to court to evaluate the motivations of the defense attorneys, the agreement heads off for now the appointment of stand-in defense lawyers, which could have seriously hurt the legitimacy of the IHT and any verdict it hands down.
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