Judging Human Rights Watch: an appraisal of Human Rights Watch's analysis of the Ad-Dujayl trial.

• Author: Blinderman, Eric H.

1. INTRODUCTION

   On November 5, 2006, Trial Chamber 1 of the Iraqi High Tribunal (IHT) issued its verdict in the Ad-Dujayl trial. (1) That verdict convicted Saddam Hussein, (2) Barzan al-Tikriti, (3) and Awad al Bandar (4) of crimes against humanity inflicted upon the civilian population of Ad-Dujayl following a failed assassination attempt against Saddam Hussein that occurred there in 1982. Each of these three defendants was sentenced to death. The IHT also sentenced Taha Yaseen Ramadan (5) to life, three other defendants (6) to a term of fifteen years imprisonment, and acquitted one defendant (7) of all charges.

   On November 20, 2006, Human Rights Watch (HRW) issued a 94-page report (Report) that analyzed alleged substantive and procedural deficiencies of the first trial before the IHT. (8) The HRW Report concludes that the Ad-Dujayl trial did not meet essential fair trial standards and that the credibility of the entire IHT process is doubtful. (9) Two days later, Trial Chamber 1 issued a densely worded, single-spaced, 299-page opinion explaining its rationale for the November 5, 2006 verdict. (10)

   On December 26, 2006, the IHT appellate chamber affirmed the trial chamber's death sentences in a 17-page written opinion and remanded back to Trial Chamber 1 the judgment against Taha Yaseen Ramadan with instructions to increase the penalty against him to death. (11) The Iraqi government executed Saddam Hussein on December 30, 2006 and Barzan al-Tikriti and Awad al Bandar on January 15, 2007. (12) On January 25, 2007, Trial Chamber 1 reconvened (ostensibly to increase Taha Yaseen Ramadan's sentence to death) with three of the five judges of the original panel either away from Iraq or otherwise absent. (13) The IHT adjourned that court date stating that the defense attorneys had not received proper notice of the session. (14)

   On February 12, 2007, Trial Chamber 1 reconvened with the same judges five judges who were present on January 25, 2007. (15) Despite protests from the United Nations, (16) the Council of Europe, (17) defense counsel, and others, Trial Chamber 1 increased the sentence against Taha Yaseen Ramadan from life (which the original Trial Chamber had issued) to death. (18) The IHT Appellate Chamber affirmed this sentence without written opinion on March 15, 2007. (19) Taha Yaseen Ramadan was hung on March 20, 2007 thereby ending the Ad-Dujayl case. (20) The trial chamber judgment, the appellate chamber judgment, and the executions of Saddam Hussein, Barzan al-Tikriti, Awad al Bandar, and Taha Yaseen Ramadan were not analyzed or taken into account in the Report.

   This article attempts to address some of the legal and factual inaccuracies of the Report and to correct them in view of the IHT's issuance of the trial and appellate judgments and the executions of Saddam Hussein, Barzan al-Tikriti, Awad al Bandar, and Taha Yaseen Ramadan. The purpose of this exercise is to ensure that the Report's conclusions can be more thoroughly analyzed and so that those who were not in Iraq and did not participate in the day-to-day operations of the Ad-Dujayl trial can better understand what occurred and the role that the U.S. Embassy's Regime Crimes Liaison's Office (RCLO) (21) played as the trial unfolded.

   This article does not opine about whether the Ad-Dujayl trial and appellate processes comported with international standards as such an analysis would require significant time and resources that are currently unavailable. Instead, this article limits itself solely to the issues and concerns raised in the Report. With this limitation in mind, this article will attempt to address (1) administrative problems specified in the Report and to determine whether the administrative criticisms that HRW levies against the IHT are correct; (2) procedural concerns in the conduct of the Ad-Dujayl trial and whether those concerns are grounded in fact or law; and (3) substantive concerns regarding the IHT's ability to conduct trials fairly.

2. ADMINISTRATIVE CONCERNS WITH THE IHT

   HRW asserts that the IHT is incapable of handling many administrative tasks competently. (22) In particular, the Report states that the IHT Defense Office, Security Protocols for Defense Counsel, IHT's Victims and Witnesses Protection Unit, Court Documentation, and Outreach and Communications Office were inadequate or sub-standard. (23) This article will briefly address each of these administrative areas in turn.

   1. IHT Defense Office

      HRW's discussion and criticism of the IHT Defense Office is largely inaccurate. In fact, the IHT's establishment and support of a functioning and capable IHT Defense Office is a relative bright spot in the IHT process. By way of background, the IHT Defense Office was established pursuant to Rule 30 of the IHT Rules of Evidence and Procedure "for the purpose of ensuring the rights of accused." (24) The IHT Defense Office is tasked, in part, with providing advice and assistance to "accused persons before the ... Tribunal." (25) Pursuant to Rule 30(1), the IHT Defense Office is managed by an Iraqi defense attorney who serves for a period of three years. (26)

      In addition, the IHT Defense Office maintains a staff of nine other qualified defense attorneys (in addition to the director)--all of whom (including the Director) were assigned as stand-by counsel to a particular defendant as the Ad-Dujayl trial moved forward and as the threat of boycott by privately retained counsel became imminent. The IHT also recognized the need for international advisers to assist the IHT Defense Office and, on February 20, 2006, appointed an international adviser (pursuant to Rule 21 and Rule 30(6)(a) of the IHT Rules of Evidence and Procedure and who commenced working with the IHT in mid-April of 2006) with many years of substantive international criminal law experience to advise the IHT Defense Office in complex international legal and other matters. (27) Despite the qualifications of the IHT Defense Office International Law Adviser (Defense Law Adviser)--which included graduating summa cum laude from his undergraduate university, obtaining a post-graduate research degree from the University of Oxford, obtaining a law degree with a specialization in public international law and international criminal law with honors, a PhD in the field of the law of armed conflict, and working for the war crimes section of his national Department of Justice, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC), and the United Nations in various capacities as a lawyer, investigator, and human rights officer--HRW mistakenly asserted that the Defense Law Adviser "was not a lawyer." (28)

      Because of the Defense Law Adviser's extensive experience in the field of international criminal law, the IHT Defense Office attorneys, although lacking international criminal law training themselves, were able to work closely with their adviser to represent each defendant capably on the evidence and law. A particularly telling moment of the partnership between the Defense Law Adviser and the IHT Defense Office attorneys occurred when the privately retained attorneys for most of the defendants refused to present closing statements on behalf of their clients. In accordance with the IHT Statute and the IHT Rules of Evidence and Procedure, a slight and diminutive IHT Defense Office lawyer--who had been assigned to represent Saddam Hussein in the event that his privately retained attorneys proved unable to fulfill their duties--read a closing statement for Saddam Hussein on July 26, 2006. (29)

      What made this moment important for the IHT and for the IHT Defense Office was the fact that Saddam Hussein (immediately prior to the issuance of the closing) stood up and challenged the lawyer--declaring that he did not want this closing statement read and that, if the defense attorney proceeded to read this statement, he would be considered a personal enemy of Saddam Hussein and an enemy of the state of Iraq. (30) At the same time, the Defense Law Advisor was denounced by Saddam as an American spy, presumably on the strength of misinformation provided to that defendant by his retained counsel. Despite these threats, the Iraqi defense attorney presented an intelligent and cogent legal argument on behalf of Saddam Hussein (prepared with the assistance of the Defense Law Adviser and which cited relevant international law precedents) so that Saddam Hussein's rights would be protected.

      HRW challenged this closing statement as well as the closings of other unrepresented defendants as somehow unfair because they were drafted with the assistance of the Defense Law Adviser (who according to HRW was not a lawyer even though he graduated from law school with honors), translated from English into Arabic, modified by the IHT Defense Office lawyers and presented in open court for the benefit of each defendant. (31) HRW stated that this procedure somehow "indicat[ed] the underlying lack of capacity among the Defense Office lawyers themselves." (32) This criticism completely misses the mark. Whether the lawyers had the capacity themselves to prepare such a closing independently is irrelevant to the overall fairness of the Ad-Dujayl trial. The IHT Statute and IHT Rules of Evidence and Procedure presume that Iraqi criminal defense lawyers (like the judges and other participants in the trial process) would require assistance with complex issues of international criminal law. (33) That is why the Rules of Evidence and Procedure permitted the IHT to retain the services of an international law adviser who could fill this role. (34) In addition, the Defense Law Adviser fulfilled his ethical and professional duties with integrity by working day and night with each IHT Defense Office attorney to ensure that all defendants were capably represented.

      Rather than indicating a lack of capacity, the carefully...