Iraq Forum

Our invited panel debate the issues surrounding Saddam's trial

How has the resignation of Judge Rizgar Amin affected the trial?

On January 26, 2006
Dr. Phebe Marr

The trial is indicative of broader problems in Iraq’s new polity. These can be seen in the difficulty in finding competent, experienced judges who are also neutral -- in short, decoupling the court from politics and dealing with the whole de-Ba’athification issue. For example, the most experienced judges may be ex-Ba’athists not trusted by the former opposition leaders, now in charge of government. Intimidated by threats, competent judges and defense attorneys may be unwilling to step up. The trial needs to be put in the context of the broader political environment in Iraq.

One has to keep in mind that the trial serves several purposes and plays to several audiences. These are difficult to balance. The judge and the court have to establish their priorities. It cannot satisfy all of them.

One purpose of the trial is to carry out justice, to see that Saddam Hussein and his regime are called to account for crimes against humanity. The main audience for this trial is those who suffered or were oppressed -- mainly Kurds and Shi’iah. But these are the groups who are now in power and are responsible for conducting the trial; hence they must be especially careful to observe procedures, lest they be accused of political aims.

Another purpose is to bring the crimes of Saddam and his regime to a wide audience in a way that provides legitimacy for the new regime and discredits the former regime and those associated with it. This aim is frankly political. In the midst of a vicious insurgency and a democratic transformation, the trial can bolster support inside Iraq for the new regime and discredit the insurgency.

But there was always the danger that the trial would be open to exploitation by the defendants, who would use it to discredit the new regime and to attack the West, especially the United States, and the occupation. The audience here is the insurgents and others unhappy with the change and the broader Arab and Muslim world, targeted by al-Jazeera, al-Arabiyya and other media. Indeed, amongst this audience the trial has been polarizing. Hence it is important to get the courtroom back under the control of the judge and to get the procedure focused on the charges.

Still another purpose is to demonstrate Iraq’s transformation and the benefits of the rule of law. The trial in this guise must demonstrate that the judicial system is fair and that all Iraqis will be dealt with equally before the law, even Saddam. The audience here is the new generation of Iraqis as well as the Sunnis who are now apprehensive about their fate and who need to come in from the cold. The support of the international audience is also needed.

Many think the trial is an expensive process in terms of the time and energy it is taking away from other, more existential tasks. All audiences are looking for a speedier and more orderly process. In the end, what the Iraqis really need is a “truth and reconciliation”process -- one that gets Iraqis to recognize the crimes that were committed and publicly teaches that such crimes should never happen again. But there must also be some acceptance of those in the former regime who have no blood on their hands so that they can be reintegrated into a more democratic Iraq. But Iraq, in the midst of a violent and vicious insurgency, is not ready yet for this process. The trial, the first tentative step in this process, reflects this truth.

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On January 20, 2006
Nehal Bhuta from Human Rights Watch

More than anyone else, Judge Rizgar Amin was the public face of the court trying Saddam Hussein and seven other defendants in Baghdad. His polite even-handedness made him an attractive face for justice in the “New Iraq.” But the light touch and sincere commitment to a fair trial that won praise from international jurists also earned brickbats from the Iraqi government and Iraqi public opinion. His resignation exposes some of the serious institutional failings and political divisions that are plaguing the Iraqi tribunal.

Outtakes from the evening news give the impression of a courtroom dominated by Saddam and his half-brother Barzan. In a trial of a once-powerful and ruthless political leader, theatrics -- even histrionics -- are to be expected. A smart defendant knows that if he succeeds in politicizing the process, he can question its credibility and neutrality. Provoking the court to take heavy-handed measures to control him only underscores his claim that the whole proceeding is based on illegitimate force.

But the impression that Saddam and Barzan have successfully undermined the judicial process is misleading. As I sat in court, day after day, in November and early December 2005, I saw that the defendants were often quiet beneath the vaulted 30-foot ceilings of the former Ba’ath Party Regional Command. Despite outbursts of rudeness and defiance, they also expressed respect for the judge and largely complied with his directions -- albeit after some insistence.

Judging the court by the defendant’s behavior alone (however entrancing to the news media) misses what is at stake in these and subsequent trials before the tribunal: justice under law for hundreds of thousands of victims of human rights violations and a methodical accounting of state-sponsored crimes that rose to the level of genocide and crimes against humanity.

In Iraqi public opinion, however, there is a visceral demand that the court be harsh and little concern for the legal niceties that must be respected to ensure a fair trial. Many feel the process is too good for Saddam. This is understandable, when you consider that ordinary felony trials in Iraq last about 30 minutes. The cases I saw at Baghdad’s Central Criminal Court (where regular criminal cases are tried) did not call witnesses or test evidence, and defense and prosecution presentations were cursory. Sentences from 15 years to life were handed down in a matter of minutes. At seven trial days and running, the Dujail trial is probably already the longest trial that any of the Iraqi lawyers involved (prosecution and defense) have ever run. For ordinary Iraqis, it’s hard to understand why trying Saddam takes so long.

Government officials in Iraq know little about the court and do almost nothing to defend it or promote its objective of according a fair trial. Instead, in the lead-up to the elections, members of parliament and even some ministers scored political points by attacking the court as weak and demanding the dismissal of Amin. Amin’s resignation is clear evidence that the judges are feeling the pressure. This must be a bitter pill to swallow when one remembers that they are risking their lives and those of their families to conduct these trials as best they can.

Trials of this kind are an enormous challenge to any legal system, but from my time in Baghdad attending the court and talking to its officials, it was obvious that the tribunal faces special hurdles. It is a brand-new institution trying to do something that is new to Iraq -- prosecute international crimes in accordance with international law -- and do this under the white-hot spotlight of national and international audiences.

The problems of public perception reflect the fact that the court has no effective press or education office, which is indispensable to explaining its actions. Administratively, the court is struggling to perform the day-to-day tasks needed to keep the trials running.

Essential documents were in fact illegible when first provided to the defense: on a page count that we did, at least 30 percent of the Dujail evidence dossier was unreadable. As yet, there are no detailed indictments against individual defendants, so it is still unclear how the evidence in the dossier (which is the same for each defendant) is related to their individual responsibility.

International observers such as myself see judges who are well intentioned and committed, but who struggle to manage the most complex cases they have ever seen. We see witness testimony that is powerful and moving, but not necessarily directed by the prosecution to show the elements of the crimes. We hear complaints from Iraqi defense counsel that they have no training in international criminal law and must spend hours trying to access and communicate with the court offices in the fortified Green Zone.

Privately, diplomats in Baghdad share Human Rights Watch’s worries that the trials will fall far short of international standards. Despite the serious problems with the Milosevic trial, the International Criminal Tribunals in The Hague and the Special Court for Sierra Leone (a joint U.N.-Sierra Leonean body) have made real strides in conducting trials that are fair, effective and credible. The Iraqi tribunal should have benefited from this accumulated experience. But the Bush administration’s ideological opposition to international courts led them to reject from the outset an internationalized court that could engage this experience.

The tribunal is only in its infancy, but it is on a very steep learning curve. Following on Dujail will most likely be the Anfal case, concerning the killing of 50,000 to 100,000 Kurdish civilians by Iraqi government security forces in a counterinsurgency campaign that used chemical weapons on more than 40 occasions documented by Human Rights Watch.

It will be a case of truly global significance. The concern is that the Baghdad court might not take its place alongside courts at Nuremberg, Jerusalem, The Hague and Freetown as having run trials that will stand the test of time.

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On January 19, 2006
Professor Michael Scharf

On January 17, 2005, the international press reported that Rizgar Mohamed Amin had decided to step down as Presiding Judge of the Saddam Hussein trial in the face of public and media criticism about how he had managed the trial. At the time this is being written, it is not yet clear if Judge Amin will be resigning altogether or simply swapping places with one of the four other judges on the panel trying the Dujail case.

In my previous post, which was written before Judge Amin’s resignation, I defended the job the distinguished 60-year-old Kurdish jurist had done in the first five days of the trial and explained why I believed the criticism about how he was handling the trial was largely unfounded.

Judge Amin’s replacement will obviously be under public, media and official pressure to instill a greater degree of control on the proceedings. The following are some steps that he can take that are consistent with the fair trial requirements of international law:

First, the new Presiding Judge can insist that Saddam only speak through his lawyer, rather than address the court and the witnesses directly, except when it is the defendant’s turn to testify later in the trial as a witness on his own behalf. The judge can enforce this by turning off the microphones from the defendants’ dock so that the televised coverage does not pick up their frequent disruptive outbursts. And if the defendants continue to act disruptively, following the precedent of the Special Court for Sierra Leone, they can be made to watch the trial from their detention center through two-way video so they can still communicate with their lawyers and the judges during the proceedings.

Second, the judge can insist that only the lead Iraqi counsel for each defendant actively participate in the courtroom proceedings, rather than permit former U.S. Attorney General Ramsey Clark to continue to address the court as Judge Amin had permitted. This may prevent Clark from attempting to continue Saddam’s efforts to turn the proceedings into a trial of U.S. foreign policy. And the judge should remind the Iraqi lawyers that as officers of the court, they can be sanctioned for misbehavior, including disbarment.

Third, the judge can bifurcate the proceedings, requiring that all procedural motions (including complaints about mistreatment) be made in nontelevised closed sessions.

Fourth, the judge can appoint a group of “stand-by counsel” as the Yugoslavia tribunal and Rwanda tribunal have done. It is the job of such counsel to observe the trial and be ready to step in at a moment’s notice if, for example, the defense counsel ever threaten another boycott or begin to act disruptively. The omnipresent possibility that they can be replaced without derailing the trial will enable the judge to better keep the defense counsel in line.

In taking such actions, the new Presiding Judge must be extremely careful not to appear too heavy-handed. If he loses patience and yells at the defendants or their lawyers, for example, as Judge Richard May did during the Milosevic trial at The Hague, it will only play into the defense strategy of trying to cast the proceedings as unfair and illegitimate. In the long run, it is far more important that the trial be seen as scrupulously fair than for the judge to be seen as winning the battle of the wills against Saddam -- something that Judge Rizgar Amin understood (perhaps too well).

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On January 19, 2006
Iraqi Blogger Iraq the Model

The problem that faced Judge Rizgar was that he was trying to leap a couple of steps ahead of where most Iraqis stand when it comes to understanding and practicing democratic values and human rights.

I do understand the ordinary citizens’ attitude and objections, but what I can’t understand is the way our government and politicians dealt with this issue. Most of them had lived outside Iraq in democratic countries for many years, and now we are expecting them to lead Iraq through the stages of a democratic transformation. So instead of giving the decent judge a hard time and pushing him to submit his resignation, they should’ve tried to explain his point of view to the public opinion.

I think losing Rizgar is a loss for democracy and for the human rights movement in Iraq, but I know for sure that there are more good and qualified people here who can run the trial and serve justice.

The fact that the government interfered with the work of the judiciary is very disturbing, and this is what needs to be changed.

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