How has the resignation of Judge Rizgar Amin
affected the trial?
On January 26, 2006
Dr. Phebe Marr
wrote:
The trial is indicative of
broader problems in Iraqs 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-Baathification
issue. For example, the most experienced judges may be ex-Baathists
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
Shiiah. 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 Iraqs 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 reconciliationprocess -- 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
wrote:
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 Baath 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 defendants
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 Baghdads 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, its 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.
Amins 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 Watchs 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 administrations 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
wrote:
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 Amins 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 Amins 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 defendants 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 Saddams 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 moments 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
wrote:
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 cant 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 shouldve 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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Michael Scharf,
24 Steps to Liberty,
Phebe Marr,
Nehal Bhuta,
Iraq the Model,
Faleh Jabar,