ICTJ in the News

October 27, 2005

Hussein's Lawyers Refuse to Work With Iraqi Court

The New York Times

By John F. Burns

Lawyers for Saddam Hussein said Wednesday that after the killing last week of the defense lawyer for one of Mr. Hussein's co-defendants, they had ended any participation in the work of the Iraqi court hearing cases about mass killings under Mr. Hussein's rule.

The lawyers demanded that the Iraqi government provide them with 15 bodyguards each, a level of protection at least equal to the security provided to top Iraqi cabinet ministers and American officials here.

Officials working with the court said after the killing on Thursday that they were ready to provide "substantial protection" to the defense lawyers, and both sides have said discussions are continuing. But it was unclear whether agreement on the protection issue would end the boycott.

The lawyers' decision, which followed a call by the Iraqi Bar Association for an end to any involvement with the court after the lawyer's killing, posed fresh obstacles to plans for as many as a dozen trials in Baghdad for Mr. Hussein and his associates. The lawyers renewed claims on Wednesday that the rights of Mr. Hussein and seven co-defendants were being violated in the first of the trials before the court, which opened briefly last week and adjourned until Nov. 28, making a "fair and transparent trial" impossible.

Although they made no explicit threat to boycott the court over these rights issues, the defense lawyers have acknowledged that they intend to make it as difficult as possible for the Iraqi government and the Bush administration, the decisive voice in many issues here, to continue prosecuting Mr. Hussein and his associates in Baghdad. Some of the lawyers have said they hope to delay the trials indefinitely, in the expectation that a worsening of the war here will ultimately make their continuation impossible.

The potential for disruption to the court's proceedings over issues involving the defendants' rights was demonstrated on Sunday, when the five-judge panel in the first case, despite the 40-day recess, took testimony from a former secret police official who is near death from lung cancer in an American military detention center near Baghdad. Court officials said the witness, Waddad al-Sheikh, in his late 50's or early 60's, was questioned in a clinic while attached to oxygen equipment and an intravenous drip. He was not represented by counsel, and no defense lawyers were present.

Khamis al-Obeidi, one of three lawyers who represented Mr. Hussein at last week's court session, said in an interview that before they would consider returning to the court the lawyers wanted "brought to justice" the killers of Sadoun al-Janabi, lead lawyer for the former chief judge of Mr. Hussein's revolutionary court who appeared with Mr. Hussein as a defendant in the trial that opened last Wednesday. But he appeared to set much wider conditions, too.

"Under the present security conditions in Iraq, our clients' best interests are served by our suspending our participation in the trial, because we cannot move freely, much less undertake the kind of legal preparations that are essential to defend them," he said.

That lawyers' strategy, senior Iraqi and American officials say, is aimed at keeping Mr. Hussein from being executed. That is his likely punishment if found guilty on charges laid against him in his first trial, in which he is accused of ordering the torture and execution of 148 Shiite townspeople after an assassination attempt against him in 1982. Backed by Western human rights and legal-monitoring groups, Mr. Hussein's lawyers have said that cases stemming from his 24-year rule should be tried before an international court, where the death penalty would not be applicable.

Hinting at this strategy in their statement today, Mr. Hussein's lawyers called the trial that began last week "a farce" and appealed to Western rights groups, the United Nations and Arab and international bar associations to press for an end to the trial. A number of American rights experts who attended the opening trial session said they believed that legal protections for the defendants were seriously flawed, and they vowed to continue pressing for an international court, or at least a wider international role, including foreign judges and lawyers, in the Iraqi process.

For the moment, American and Iraqi officials appeared to be concentrating on answering the defense lawyers' demands for protection in the wake of the killing of Mr. Janabi on Thursday. A senior official monitoring the talks with the defense lawyers, speaking on the condition of anonymity because he was not authorized to speak for attribution, said on Wednesday that "all defense counsel concerns and problems are taken seriously, as they are understood to be an integral part of any process."

In the past year, six officials of the Iraqi court have also been killed, one of them a judge, with no arrests in the cases. Those killings have prompted a tightening of security for the judges and prosecutors, many of whom live inside high-walled compounds protected by Iraqi and American troops and travel across Baghdad in armored vehicles with posses of bodyguards. But even they say privately that taking part in the trial of Mr. Hussein will end any prospect of resuming a normal life in Iraq and that they are relying on American officials to arrange green cards for them to resettle in the United States when the trials are over.

Raid Juhi, who as the court's chief investigative judge led the questioning of Mr. Hussein and his associates before they went to trial, said on Wednesday that the court was pressing for adequate protection for the lawyers. But he added: "All of Iraq's citizens face these dangers every day, yet they go out and do their jobs as well as they can, just as the defense lawyers should. That is their ethical responsibility to their clients, not using this issue as a means to delay the hearings of the court."

The hearing on Sunday at the American detention center encapsulated the problems facing the court if a defense boycott holds. The Iraqi prosecutor in the case, Jaafar al-Musawi, said in an interview that defense lawyers were invited to join court officials at the session, which included prosecutors, court recorders and the judges hearing the case, but they refused, citing safety concerns. The hearing left Mr. Sheikh, the former secret police official, with no counsel. If he survives, court officials have said, Mr. Sheikh is likely to be charged in the case himself, with his testimony on Sunday used against him.

The testimony could be crucial to the case against Mr. Hussein.

Court officials identified Mr. Sheikh as the chief interrogator of the men and teenage boys who were put to death after the assassination attempt in Dujail, a mainly Shiite town north of Baghdad. The officials said that Mr. Sheikh, an official of the mukhabarat secret police agency, which was among the most feared tools of Mr. Hussein's repression, was in charge of interrogations that led to death by torture of 46 of the victims before they were formally sentenced to death by a revolutionary court.

In court last week, the chief judge, Rizgar Mohammed Amin, justified the plan to question Mr. Sheikh during the recess by saying that he might not survive long enough to appear as a witness when the court resumed. Referring to a medical report, he said that Mr. Sheikh " needs oxygen to help him with breathing, even when he is asleep." The judge added: "His breathing is so weak he cannot make himself heard when speaking. He has a weak heart, and could suffer a heart attack, or a stroke, at any time."

The Iraqi court's practice of taking evidence from defendants in the absence of lawyers became an issue almost as soon as the court was established, under an American decree, last year. Iraqi investigative judges questioned Mr. Hussein and several of his top associates on numerous occasions before they met for the first time with their lawyers. In Mr. Hussein's case, his lead lawyer, Khalil al-Dulaimi, saw him for the first time in December, a year after Mr. Hussein was captured by American troops.

They met only five times, Mr. Dulaimi said, before the trial began last week.

One of the Western human rights advocates who attended last week's court session was Miranda Sissions, an Australian who represents the International Center for Transitional Justice, a New York-based group. She said after the court hearing that despite these and other shortcomings in the defendants' legal rights and in the court's ability to resist political interference by Iraq's new rulers, the initial proceedings, involving procedural matters and an outlining of the case by the chief prosecutor, "did not feel like a show trial."

But speaking before Mr. Janabi's killing became known, she added: "The point of this court is that it could establish a new vision of justice for Iraq. The danger is that because of pressure, accident or circumstance, it will not."