Defining Justice

By Dave Johns

Justice in a War Zone

Armored car driving in the heat

Targeted killings of tribunal lawyers and staff have led some to question the wisdom of holding the trial in Iraq. Many advocates have demanded that the court improve security or move the trial outside the country. Elise Groulx, president of the International Criminal Defense Attorneys Association, asked: “Is Baghdad a war zone? … That is a question that the judges and Iraqi government must answer.”

How much violence has there been toward tribunal lawyers to date?

On October 20, 2005, a group of armed men abducted Sadoun al–Janabi, one of the lawyers representing the former head of Saddam’s Revolutionary Court, from his office in Baghdad. Al–Janabi had recently appeared on television arguing on behalf of his client. An hour later his body was found with two bullet wounds to the head. Witnesses claimed the kidnappers were wearing police uniforms and said they worked for the Interior Ministry.

On November 8, insurgents in Baghdad opened fire on a car carrying Adel Zubeidi and Thamer Hamoud al–Khuzaie, two lawyers representing Saddam’s co–defendants. Zubeidi was killed and al–Khuzaie was seriously wounded. Khuzaie reportedly told another lawyer that a police car had shadowed the ambush and had taken both lawyers to a hospital. The claim fueled a theory among Sunnis that the Shi’iah–dominated government is sponsoring death squads that target loyalists of the former regime. Saddam’s chief lawyer, Khalil al–Dulaimi, told <i>The New York Times,</i> “It is the Interior Ministry that has offered to provide us with protection against these attacks, but it is the ministry itself that is planning the killings.”

How did these attacks affect the court?

After the attacks, lawyers for the defense threatened to boycott the trial and demanded it be moved outside Iraq, a proposal repeatedly rejected by Iraqi and U.S. Justice Department officials. The feeling is that the trial needs to be held in Iraq to demonstrate the country’s sovereignty. Supporters of a Baghdad trial blamed the defense for having refused court offers of security. Raymond Brown, an international law expert who served as a defense lawyer in the Special Court for Sierra Leone, told the Agence France–Presse, “If the court cannot even protect the defense lawyers, one has to question the legitimacy of the proceedings.” Laura Dickinson, a law professor at the University of Connecticut who did legal research for the tribunal, wrote in a blog that Iraqi authorities should consider moving the court to a nearby location, such as Dubai. The Iraqi government opposes such a move. In the days after the November killings, Leith Kubba, spokesperson for Prime Minister Ibrahim al–Jaafari, said 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.” The court has since beefed up security for tribunal lawyers, and defense counsel has accepted the protection.

Why is the tribunal being held in Baghdad in the first place?

Iraqi and Coalition officials had long planned to host the trial in Baghdad. The United States is not a party to the International Criminal Court (ICC). But a homegrown court is actually the preferred approach of the ICC, which only steps in when local judicial systems are too disabled to function. According to opinion polls, the Iraqi people also want a local trial, and many human rights experts favor local over remote justice. In an article for The New Republic in December 2003, Samantha Power wrote about the Hague tribunals for Rwanda and the former Yugoslavia: “What they have offered in international legitimacy and procedural propriety, they have lacked in local relevance. … The most important considerations [in Iraq] should be those that all too rarely guide war crimes trials: How can the tribunal best empower, enlighten and comfort those who will shape the future of the country? For the trial to address these considerations, it must be held on Iraqi soil.”

Is there any chance that the tribunal might still be moved outside Iraq?

It’s unlikely at this point, although a new spate of violence could alter the dynamic. Persistent killings by insurgents could certainly jeopardize the entire Baghdad–based operation. Some experts doubt that moving the court to another country would be acceptable to Iraqis. “One must wonder how most Americans would react at having an unknown entity in a foreign country preside over crimes committed by an American dictator against American civilians. Clearly, we would have little tolerance for such a choice,” wrote Greg Kehoe, the former Regime Crimes Liaison to the tribunal, in JURIST.

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