Transitional Justice Forum

An Iceberg Ahead for the Iraqi High Tribunal?

Several events in recent days have called into question the direction being taken by the Iraqi High Tribunal in its trial of Saddam Hussein and his co-defendants, and have raised questions about how effective such trials will be at helping to effect a real transition in Iraq.

First, there was the resignation of presiding judge Rizgar Mohamed Amin. Judge Rizgar has been pilloried both in Iraq and internationally for providing what is seen as excess latitude to Saddam Hussein and other defendants, permitting them to engage in lengthy oratory and challenges to the legitimacy of the Tribunal. His life had been threatened by extremists, and he announced that he was resigning due to political interference with his conduct of the trials. Richard Dicker of Human Rights Watch dubbed the political pressure leading to Judge Rizgar's resignation "nothing less than an attack on judicial independence," and argued that such pressure went against the UN Basic Principles on the Independence of the Judiciary.

Previously, it had been reported that Judge Said al-Hamashi would be taking over from Judge Rizgar. However, Ali Faisal, executive manager of the De-Ba'athification Commission, called not only for Judge al-Hamashi not to be appointed presiding judge, but also for his removal from the IHT, as Faisal stated to the media that Judge al-Hamashi was the subject of a investigation for his Ba'ath Party ties under the Saddam Hussein regime. Judge al-Hamashi denied the allegations.

Although Judge al-Hamashi remained a member of the IHT, he was not made presiding judge and was in fact transferred from the Dujail trial chamber. This was denounced by Dicker of Human Rights Watch, who pleaded (in a wry and perhaps very apt analogy) that "Sitting judges cannot be shuffled around as though they were deck chairs on the Titanic.” Marieke Wierda of the International Centre for Transitional Justice spoke similarly, stating that the change of judges could undermine public confidence in the Tribunal's impartiality and integrity.

The Dujail trial was postponed on 24 January, with insiders reporting that dispute over choosing a successor had prevented the Tribunal from convening as scheduled. It was subsequently announced that Judge Raouf Rashid Abdul-Rahman would take over as presiding judge. Judge Abdel-Rahman, a Kurd from Halabja, was imprisoned in the 1970s, before Saddan Hussein took charge of the Ba'ath Party, and is rumored to have been tortured during this period for his membership in a Kurdish nationalist movement. He was also reportedly tried in abstentia in 1977 and sentenced to life in prison. Lawyers for Saddam Hussein accuse Judge Abdel-Rahman of having a "personal feud" with the former leader given that Halabja was the site of one of the most atrocious acts perpetrated by Saddam Hussein's government, the death by gassing of more than 5000 Kurds. (Given the scale of the crimes committed by the Saddam Hussein regime, however, I cannot think but that judicial disqualification based on one's origins in a town that suffered from Saddam Hussein's cruelty would result in exactly zero qualified Iraqi judges.)

But even Judge Abdel-Rahman's appointment as presiding judge may only be temporary, as there is supposedly some conflict among the judges of the IHT regarding his appointment. Despite this uncertainty, Judge Abdel-Rahman wasted no time in his attempt to reassert the control of the bench in the criminal trials of Saddam Hussein and his co-defendants. His response to outbursts by one of the defendants and a defense lawyer was to order both to be physically removed from the courtroom. By the time the ensuing row settled, Judge Abdel-Rahman had ordered all four lead defendants removed from the courtroom, the defense lawyers had walked out in protest, and a team of court-appointed attorneys for the defendants had been introduced.

The inevitable response came on 30 January, when Khalil al-Dulaimi, one of Saddam Hussein's lawyers (or perhaps former lawyers, given Abdel-Rahman's appointment of stand-in counsel?), announced that the top defendant would refuse to attend the next hearing, " because of the comedy we witnessed in yesterday's trial." Perhaps he meant a sort of tragicomedy, with the funny part coming up soon, because I haven't found much of comedic value in this latest downward turn for the IHT. And the lead defendant did indeed boycott, with the NYT noting that "[a]fter several hours of trying to persuade Mr. Hussein and four other defendants to go to the courtroom, Iraqi court officials gave up, and the judge, Raouf Abdel-Rahman, announced that the trial would continue without them, at least for now."

The commentary at "Grotian Moment" has uniformly lauded Judge Abdel-Rahman's strong hand. Michael Scharf notes that "[f]ollowing Saddam’s unceremonious departure, the trial proceeded quite smoothly with four of the eight defendants sitting quietly in the courtroom as three more witnesses completed their testimony." But no mention is made of the objections raised by the court-appointed attorneys -- of course, that's because "the court-appointed defense lawyers did not cross-examine the witnesses, a fact noted by independent observers who question the fairness of the trial."

Paul Williams adds that "Judge Amin did not step down because he was biased, but because he realized he had lost control of his courtroom." Though this statement is true on its face, it also ignores the more important fact that Judge Rizgar resigned not because he felt that he had lost control of his courtroom, but because this perception was held by Iraqi government officials, who pressured him to resign.

Williams ends by noting the admitted importance of the location of the trial within Iraq on its transitional justice impact. "Despite the difficulties faced by the Iraqi Tribunal," Williams argues, "the fact that it is being held in Iraq and that Saddam and others are being tried by Iraqis will contribute immeasurably to the healing process for victims, and to the sense among Iraqis that they are now in control of their own destiny."

Yet as Richard Boudreaux of the LA Times asks about this trial, "Can it bring justice and be perceived as fair if Hussein and his cohorts continue to be judged in absentia and without counsel of their choice?"

What Williams omits is an important point -- namely, that although Shi'a and Kurdish Iraqis will certainly take from the Saddam Hussein trials that "they are now in control of their own destiny," the more heavy-handed the approach taken by the IHT, and the more it is perceived by Sunni Arab Iraqis as yet another arm of the Iraqi government that is biased against Sunni Arabs, the less likely it is that Sunni Arabs will feel anything resembling "control of their own destiny." And without that feeling of control, there is little reason to think that those Sunni Arabs that form the core of the insurgency will lay down their weapons and engage in the political process in Iraq.

Joanna Quinn noted the other day that our conception of transitional justice is "about more than simply justice as we normally think about it." In trying to divine the likely outcome of the IHT's trial of Saddam Hussein, it's worth remembering this point. In the end, the text of the Tribunal's verdict matters less than does the effect of the prosecution of Saddam Hussein upon Iraq's nascent attempt to leave behind an era of violence, and move forward toward a more democratic future.