III. Administrative Concerns
Competent administration is essential for any court to run effectively, but in the case of courts adjudicating multi-defendant trials concerning large-scale crimes, court administration is the fulcrum on which the trial pivots. For example, the administrative organ of the ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda (ICTY, ICTR), usually known as the Registry, is independent of the judiciary and prosecution, and undertakes multifaceted tasks indispensable to both the efficiency and fairness of the trials. These tasks include servicing the judiciarys administrative and personnel needs, managing vast amounts of documentation, liaising between prosecution and defense, ensuring defense access to clients, supervising witness protection, supervising conditions of the accuseds detention, and managing outreach and communications for the court.
Prior to its amendment in September 2005, the IHT (then-IST) Statute provided for an Administrative Department, 44 headed by an administrative director.45 In its original form, the department was charged with addressing the administrative needs of judges and prosecutors, but not defense lawyers, and in addition was responsible for Victims and Witnesses Protection (VWP), detention conditions of the accused, communication with parties,46 outreach and communications,47 and the creation of the Defense Office.48 In the 2005 revisions of the IHT Statute, the appointment of the administrative director and tribunal spokesperson was brought under the control of the president of the IHT, making the president ultimately responsible for the overall administration of the court.49
The first administrative director was Salem Chalabi, who assumed a prominent role in the drafting of the IST Statute up to December 2003, and in nominating judges and other key personnel during the courts start-up phase in mid-2004. However, Chalabi was dismissed as administrative director in September 2004,50 and his dismissal was followed by efforts to have Chalabi loyalists removed from the IST and replaced by personnel selected by officials in the government headed by then-interim Prime Minister Ayad Allawi. In the subsequent months the position of administrative director was filled by two other IST personnel on a temporary basis, during which time the administrative affairs of the court fell into disarray.51 In September 2005 an Iraqi-American was nominated as administrative director, but his nomination was not accepted by the IST president, and a judge of the Appeals Chamber assumed the role temporarily. The 2005 amendments to the courts statute, which took effect in October and concentrated administrative powers in the hands of the IHTs president,52 meant that the position of administrative director was effectively downgraded. As far as Human Rights Watch has been able to determine, the position has not been permanently filled since, and its functions were disaggregated and exercised by different officials within the court on an as-needed basis.
Although the IHT Rules continued to stipulate that the Administrative Department was responsible for VWP, detention conditions, communication with the parties,53 and the creation of a Defense Office, in practice these essential functions have been taken over by other officials within the IHT. VWP is managed by the chief investigative judge,54 who also functions as the courts spokesperson and media liaison. The defendants in all cases before the IHT are detained by the US military, and thus the US military is responsible for their detention conditions. At the court, it is unclear who is responsible for the courts supervision of the defendants detention.
The lack of administrative direction in the management of the IHT was a common theme among court personnel and lawyers interviewed by Human Rights Watch. Court administrative staff themselves complained that they received no training or instruction in administrative procedures relevant to trials of this kind,55 while several judges asserted that the administration of the documentation and records of court proceedings was so poor that they could not easily determine what motions and documents had been received.56 Judges also consistently stated that the then-president of the court was unresponsive to proposals to improve aspects of court administration.57 As one judge commented,
Overarching administrative problems have had a serious impact on the functionality of the court, and its capacity to perform tasks essential for a fair and effective trial, including witness protection, document management, security arrangements, the Defense Office, and outreach and communications.
Witnesses (who may also be direct victims) in trials for genocide, war crimes, or crimes against humanity face serious risks. They may confront direct threats to the safety of their families and themselvesbefore or after testifying in courtand may also be in need of ongoing psychosocial support in the aftermath of testifying about deeply traumatic events. In circumstances where a conflict is ongoing, such as Iraq, the risks to allwitnesses, whether for the prosecution or the defense, can be expected to be very grave, and a comprehensive program of protection and support is thus indispensable to ensuring both an effective prosecution and an effective defense. At minimum, a witness protection program in such circumstances would be expected to include pre-trial and post-trial risk assessments for each witness; in-court protective measures (based on the risk assessment and duly authorized by the court on a witness-by-witness basis);59 safe transportation to and from the court and safe accommodation during court attendance; post-trial follow up and threat monitoring; and relocation arrangements, including international relocation agreements, for the most at-risk witnesses.60
The IHT Rules envisage the creation of a Victims and Witnesses Unit.61 However, concrete planning for the operationalization of such a unit does not appear to have commenced in earnest before July-August 2005, when a consultant expert in witness protection was funded by the United Kingdom (UK) Foreign and Commonwealth Office to develop a plan for the court. The consultants report was submitted to the court in September 2005, but in interviews with Human Rights Watch in November 2005, non-Iraqi diplomatic personnel familiar with the courts workings stated that the Victims and Witnesses Unit existed only on paper.62 Another diplomat familiar with the issue stated that there were 100 witness protection staff on the books, but they dont do anything.63 Instead of someone with direct experience in creating and managing a victims and witnesses protection program being appointed to lead the unit, the chief investigative judge assumed responsibility for the program, in addition to his judicial duties and his role as the courts spokesperson.
In practice, the RCLO and the US military assumed complete responsibility for the safe transport of witnesses to and from the courtroom, and for accommodating them in Baghdads International Zone during their time at the court. Defense witnesses within Iraq but outside Baghdad who wanted to testify were transported by helicopter from the US Forward Operating Base (FOB) nearest their home town, and were returned there after the completion of their testimony (it was incumbent upon the defense lawyer seeking to have the witness come forward to arrange for the witness to report to the FOB at an arranged time, in order to be transported to the International Zone). A number of witnesses for Saddam Hussein were first relocated out of Iraq, because the defense lawyers insisted that this was the only way to ensure the witnesses safety.64 When they were due to testify, the witnesses were flown back into Baghdad International Airport, and the RCLO provided secure transportation between the airport and the International Zone.
No systematic post-testimony mechanism of threat assessment or individual protection was available for either prosecution or defense witnesses. However, the town of Dujail did benefit during trial days from some additional deployments of Iraqi military personnel and increased vigilance by US military forces stationed nearby.
The RCLO also assumed responsibility for arrangements to relocate the most seriously at-risk witnesses. But no coherent and integrated program was operational by the beginning of the Dujail trial, and relocation arrangements appear to be largely ad hoc and dependent on the RCLO.
According to a Dujail-based witness (Witness A) who testified before the court in the Dujail trial,65 prosecution witnesses and complainants66 were frightened to attend the first session of the trial on October 19, 2005, because no arrangements for their protection had been made, and threats had been received from the families of certain defendants. In early February 2006, lawyers for the victims complained in court that witnesses and complainants had received kidnap threats, and asked the court to activate its witness protection mechanisms.67 According to Witness A, no risk assessments were undertaken for him or his family, and he arranged his own protection for his family (who remained in Dujail when he traveled to Baghdad to testify) through local groups. After completing his testimony, Witness A was offered the option of relocating to the Kurdistan region, but he chose to return to Dujail in the belief that the courts witness protection program was now activated. However, sectarian conflict and threats intensified in Dujail, and Witness A returned to Baghdad on his own initiative to seek help. With the assistance of a Cabinet advisor, the witness was able to move into the International Zone and his family traveled to join him there. Witness A was subsequently contacted by an RCLO official, who offered to make arrangements for international relocation for Witness A and his family.
These arrangements were the result of the witnesss own initiatives and the intercession of an Iraqi government advisor. They were not the product of a coordinated response by the Victims and Witnesses Unit. Witness A stated,
Based both on in-court observation and on interviews with key actors in the trial process, it became evident that during the Dujail trial the court encountered significant difficulties in the management of trial-related documents. These difficulties were concentrated along two axes: private defense lawyers problems in receipt and transmission of documents, and problems with the internal management of documents received by the court, such as motions and powers of attorney.
In pre-trial interviews with privately retained defense lawyers (including lawyers representing accused who were not defendants in the Dujail trial), Human Rights Watch received consistent complaints that the court failed to process powers of attorney submitted by defense lawyers, and was unresponsive to written communications.69 A court official denied this claim, and attributed problems in certifying powers of attorney to a lack of due diligence on the part of defense lawyers. However, it was apparent during trial proceedings that the court regularly could not find powers of attorney that defense lawyers claimed to have submitted, and the court lacked a system for verifying and tracking the receipt of documents.70
The same problem arose in relation to motions claimed to have been submitted to the court,71 and more than one judge admitted that he was unable to determine exactly how many motions had been submitted.72 Court officials contradicted each other about whether a comprehensive list of submitted motions was maintained by the court, and despite repeated requests by Human Rights Watch to inspect such a list one was never made available. While Human Rights Watch was unable to substantiate each claim of document mishandling, it became clear in the course of observing proceedings that the only way for a lawyer to ensure that a legal document reached the trial judges was to submit it in person during a court session.
Private defense lawyers complained that part of the problem of submitting documents to the court, outside of court sessions, was that the courts administrative offices within the International Zone were difficult and very time-consuming to access.73 These lawyers also expressed reservations about the security risk posed by regularly entering and exiting the International Zone on foot. 74 The court did not provide badges that could have facilitated private defense lawyers entry into the International Zone.
Among court officials there was confusion about how a private defense lawyer could effectively submit documents to the court if unable to reach the court offices. Some officials claimed that there was an arrangement with the Iraqi Bar Association, whereby lawyers could submit documents to the Bar Association and the court would send an employee to collect them;75 private defense lawyers expressed support for this as an idea, but claimed that the procedure was not in fact in place, and documents were only collected from the Bar Association on an irregular basis.76 By contrast, a trial judge firmly denied that any documents were received, or could be submitted, through the Bar Association.77 Email submission of documents to the court was possible, and the court did receive motions from defense lawyers by email.78 However, the court never instituted a practice of acknowledging the receipt of documents via email, leaving defense lawyers uncertain as to whether the documents had been received by the court.79 As of March 2006 no standard protocol or procedure governing the modalities of submitting documents to the court had been established, and no court official had been appointed to liaise with private defense lawyers concerning the transmission of documents. Human Rights Watch has not been able to establish whether this situation has since changed.
The dossier of evidence in the Dujail casecontaining witness statements and documentation collected by the investigative judgewas made available to defense counsel on August 10, 2005. On the first trial day, defense counsel complained that large portions of the dossier were illegible.80 Human Rights Watch reviewed copies of the dossier disclosed on August 10, 2005, and found approximately 30 percent of its pages to be unreadable.81 The dossier was also poorly assembled and organized, with inconsistent pagination and some documents presented out of sequence or with missing pages. The dossier contained multiple copies of the same documents for no apparent reason, as well as documents that had no apparent connection with the Dujail case. Given that the dossier constitutes the principal basis for the conduct of the case, and for a defendant to understand the case against him, such haphazard collation of the material is problematic. As far as Human Rights Watch can determine, some defense counsel received more legible copies by late November 2005.
Since the creation of the IHT (then-IST) in December 2003, the security situation in Iraq has declined steadily, with a dramatic deterioration from late 2004. In such an environment, and with trials concerning individuals and events that provoke very powerful emotions and polarized political views, all persons involved with the trials are at grave risk. At least five persons working for the court, including an investigative judge and the chief of security, were killed before the opening of the Dujail trial.82 Over the course of 2005, apartments inside the International Zone were renovated for use by prosecutors and judges, and as an interim measure some judges and prosecutors, and their families, were provided temporary hotel accommodation inside the International Zone. The RCLO played the primary role in devising security arrangements for court personnel, and for securing the court building in the start-up phase of the court.
However, a similar level of advanced planning for the security of defense counsel does not appear to have been undertaken. The ability of defense counsel to vigorously represent their clients without fear of reprisal or retaliation is essential for a fair trial. In Iraqs deteriorating security environment, the high level of risk to defense counsel for senior figures of the former regime such as Saddam Hussein, Awwad al-Bandar, Taha Yassin Ramadan, and Barzan al-Tikriti, was foreseeable.
Whereas from among the prosecutors and the five-member bench only the faces of the chief prosecutor and the presiding judge were broadcast on the first day of the Dujail trial, the faces of all defense lawyers were visible. Defense lawyers stated that they gave their permission to be televised, but that they were consulted only a few minutes before the trial opened.83 The following day (October 20, 2005), Sadoun al-Janabi, lawyer for defendant Awwad al-Bandar, was kidnapped from his offices and murdered. Three weeks later, Adel al-Zubeidi and Thamer al-Khuzai, defense counsel for defendants Taha Yassin Ramadan and Barzan al-Tikriti, were attacked by gunmen. Al-Zubeidi was killed, and al-Khuzai was injured and fled Iraq. On June 21, 2006, Khamis al-Obeidi, defense counsel for Saddam Hussein, was abducted from his home in Baghdad and shot dead.
Up until the assassination of al-Janabi, neither the court administration nor the RCLO appears to have developed specific proposals to ensure the security of defense counsel. Defense Office lawyers, who are retained by the court, also complained that no security measures for them were planned or implemented before the beginning of the trial.84 After al-Janabis killing, a representative of the RCLO contacted private defense lawyers in the Dujail case and offered to relocate them and their families into the International Zone.85 As an alternative, the Iraqi government offered security guards from the Ministry of Interior.
The private defense lawyers rejected security guards provided by the Interior Ministry, as they regarded it as hostile to them and their clients.86 They also rejected the offer to relocate into the International Zone on the grounds that living therethe heart of the US presence in Iraq and the seat of the new governmentcompromised their perceived independence and their ability to defend their clients. For those lawyers who maintained a legal practice in Baghdads ordinary courts, International Zone relocation also implied restrictions on their ability to continue their other legal work and an added risk of having to regularly enter and exit the International Zone. Defense lawyers further noted that, insofar as they feared violence from persons associated with the new government (such as Interior Ministry forces), living in the International Zone would not necessarily afford protection.87
After the November 2005 killing of al-Zubeidi, defense lawyers negotiated an arrangement with the Iraqi government and US advisors to the court under which defense lawyers would be provided weapons licenses to carry a sidearm themselves, and the Iraqi government would pay the salaries for three armed guards for each defense lawyer. The armed guards would be nominated by each defense lawyer and approved by the Ministry of Interior. However, in interviews with Human Rights Watch over several months, defense lawyers consistently complained that the salaries for the three armed guards were never provided by the Iraqi government. Some lawyers also experienced difficulties obtaining the weapons licenses, with delays in the processing of the paperwork. Because the armed guards went unpaid, those defense lawyers who did not have their own resources to keep up payments were forced to let the guards go, and rely instead on relatives to volunteer their time as guards. This appears to have been the case with Khamis al-Obeidi, whose relatives were unable to guard him 24 hours a day.
RCLO officials did expend considerable effort to be able to give the private defense lawyers an undertaking that the deaths of al-Janabi and al-Zubeidi would be independently investigated by US investigators. However, due to the continuing deterioration of security conditions the investigation did not progress, and the murders of all three lawyers remain unsolved.88
After al-Zubeidis killing, several Iraqi defense lawyers responded to the security risks by choosing to leave Iraq whenever the IHT was not in session. US advisors to the court facilitated this choice by providing secure transportation to and from Baghdad International Airport for those lawyers leaving Iraq between court sessions and returning for hearings. This transportation has so far been provided free of charge. Those defense lawyers who felt that they could not leave the country between court sessionsbecause they felt that they could not leave their homes unattended for fear of theft, or because they could not afford to take their families with them outside the countrywere essentially left to make whatever security arrangements they could on their own.
On December 7, 2005, defense lawyers for all defendants submitted to the IHT trial chamber in open court a detailed, seven-page motion concerning security. The motion included a proposal for security arrangements that defense lawyers believed would adequately protect them and ensure their ability to fully participate in the trial. According to correspondence seen by Human Rights Watch, the presiding judge of the trial chamber referred the motion to the IHT president,89 but no response was forthcoming. In failing to accept, reject, or rule on it in any way, the court effectively ignored this motion and the attached proposal.
A durable solution to the problem of security for private defense lawyers was not developed by the court over the course of the Dujail case. Insofar as the private defense lawyers for high-profile defendants in the Dujail case regarded relocation to the International Zone as unsafe and unacceptable, they were effectively left with one option: to relocate their families outside Iraq at their own cost, and return to Iraq for trial sessions. Such circumstances impose considerable practical constraints on the capacity of retained lawyers to conduct an effective defense, and are also an enormous disincentive for private Iraqi criminal lawyers to accept a high-profile defendant as a client. If the court fails to act decisively to develop security arrangements that regain the confidence of defense counsel in the courts capacity to protect them and all persons involved in the trial process, it is difficult to envisage how the court can ensure effective defense participation in current and future cases before the court.
Human Rights Watch has been informed that several lawyers who had accepted clients accused in the on-going Anfal trial withdrew from the case, on the grounds of personal security.
Trials of a deposed political leadership for international crimes, applying international fair trial standards and international criminal law, are unprecedented in Iraqi history. All previous regime changes resulted in show trials for political crimes (such as the 1958-60 Mahdawi trials of leaders of the monarchical government), or summary executions and exile (1958, 1963, 1968). A countrywide qualitative interview study of Iraqi attitudes towards justice for the Bathist government revealed, on the one hand, some support for the idea of legal trials, and on the other, almost no knowledge about how trials under international criminal law, and applying international fair trial guarantees would work.90 Understandably, among many sectors of the Iraqi population directly affected by human rights violations under the Bathist government, the desire for vengeance also ran high.91
Moreover, the ordinary legal system in Iraq deteriorated over three decades of authoritarian rule, when special or political courts were used to marginalize civilian courts. Fair trial guarantees found in the Iraqi Code of Criminal Procedure were regularly violated in practice. Even after the end of the Bathist government, and despite investment in judicial training and capacity building, felony trials in ordinary criminal courts monitored by Human Rights Watch are essentially summary in nature.92
In such an environmentand faced with defendants who are notorious and widely detestedpublic understanding of, and tolerance for, the need to uphold defendants fair trial guarantees is likely to be low. In addition, the IHT is an entirely new institution within Iraq, with a unique set of procedures that mix Iraqi and international law. Understanding of the IHT Statute and IHT Rules is minimal beyond those individuals directly involved with the court. Indeed, after the commencement of the Dujail trial, there was intense public criticism of the court and the trial judges for not being sufficiently harsh with the defendants. Steps aimed at ensuring basic fair trial guaranteessuch as postponing a hearing to ensure that a defendants lawyer could be accreditedwere vociferously condemned as excessive leniency in favor of defendants.93 Even prior to the opening of the trial, a climate of hostile public opinion and a number of highly prejudicial comments made by political figures (see below, Section IV.1) threatened both the defendants right to be presumed innocent and the ability of the court to preserve its appearance of impartiality.
Under such conditions, an effective outreach and communications strategy for the court is imperative. Outreach and communications are also essential if the trials are to have a demonstration effect in terms of educating the broader public about the content of a fair trial, and in order to enhance public comprehension of why the court behaves in the way it does. This comprehension may in turn help ameliorate an understandable frustration and impatience with the legal process.
In other national or national-international courts trying international crimes, such as the Special Court for Sierra Leone (the Special Court),94 specific Outreach Units have been created at the inception of the court to help maximize public understanding and impact. These units have developed a variety of innovative and potentially far-reaching initiatives to enhance comprehensionand combat misperceptionabout their respective courts. For example, the Outreach Unit of the Special Court based outreach staff in Sierra Leones provinces, where they tapped into local social networks to disseminate information about the court through workshops, trainings, and screenings of specially prepared video materials. These materials covered such issues as the role of the judge, the prosecutor, and the defense lawyer in a fair trial, and simple explanations of complex legal issues such as jurisdiction and challenges to the courts legal foundation.95 The Special Courts Outreach Unit also undertook workshops to educate the Sierra Leonean legal profession about the court and its rules, helping overcome misperceptions and confusion about the court in this important local constituency.
While some of these measures may not be feasible in Iraq due to the severe security risks facing court personnel, the IHT has failed to devise and implement any kind of outreach strategy, or create a specific outreach unit staffed with the relevant expertise. The IHTs communications strategy has thus far consisted of only two basic activities: media briefings provided by the chief investigative judge as the courts spokesperson, and the televising of court sessions on a gavel-to-gavel basis.96 Neither of these activities can be considered adequate to ensure widespread knowledge and understanding of the court in Iraq. The mere provision of media briefings to Iraqi media is unlikely to be effective if the media personnel have not benefited from workshops or trainings to familiarize them with court procedures, relevant principles of international criminal law and fair trials, or other essential background knowledge. Indeed, a member of the Iraqi media pool covering the IHT stated to an international trial observer that most of the Iraqi media pool reporters could not easily follow the legal terminology used in the trial, and had a limited grasp of key principles such as the role of the defense.97 Similarly, televising of proceedings without disseminating simple, accessible, and neutral explanations of the workings of the court and its laws may spread confusion as much as comprehension. Over the course of 2005 the IHT website was only intermittently updated and for much of 2006 the website did not function at all.
Furthermore, under the Iraqi legal system key documents such as indictments and records of court proceedings are not publicly posted.98
The role of the chief investigative judge as the courts spokesperson is also a matter of concern.99 The IHT Statute requires that the spokesperson for the court be a judge or a prosecutor,100 but casting either of these court personnel in such a role raises the risk that the perceived impartiality of the court will be diminished. A court spokesperson will be required not only to explain the actions of the court, but also at times to defend the courts decisions from criticism by defense lawyers, among others. Having a judge play this function is potentially in conflict with the need for judges to maintain the appearance of impartiality in their dealings with parties to a case. Similarly, appointing a prosecutor as spokesperson can create the impression that the judiciary and prosecution speak with one voice. Several trial judges interviewed by Human Rights Watch stated their discomfort with the fact that a judge was acting as the courts spokesperson, on the grounds that judges should not make out-of-court statements to the media.101
The spokespersons role was not consistently respected. Former presiding judge in the Dujail case Rizgar Amin gave an interview to the press while he was still a sitting judge in the case,102 and an IHT judge complained to Human Rights Watch that some judges had taken to speaking directly to the media because the court lacked sufficient communications expertise.103 The chief prosecutor regularly spoke to the media concerning such matters as the scheduling of trial sessions.
In a meeting with the then-president of the IHT in March 2006,104 Human Rights Watch raised its concerns about both the lack of any outreach strategy, and about the role of the chief investigative judge as court spokesperson. The president of the IHT stated his view that the IHTs efforts at communicating information about the court and the trial were more than sufficient, arguing that the Iraqi people were sufficiently knowledgeable about legal matters to comprehend the working of the court. He also saw no difficulties in respect of having the chief investigative judge as court spokesperson. According to a representative of the RCLO, the position of an outreach coordinator has been advertised but had not been filled as of October 2006.105
A fundamental component of a fair trial is equality of arms. Equality of arms refers to the principle that every party must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-a-vis the opponent.106 This includes not only equality in presenting arguments, but also equality in being able to present evidence. In international or mixed national-international courts the prosecution typically has the benefit of considerable international assistance and expertise, including forensic analysts, military analysts, international legal experts, and experienced investigators and prosecutors. While such a level of prosecution resources is necessary if the prosecution is to meet its burden of proving guilt for massive crimes, it has been increasingly recognized that an effective defense of such cases also requires significant institutional, logistical, investigative, and legal support. One mechanism by which this support can be provided is through the creation of a Defense Office, which is an independent office within the court that endeavors to strengthen defense capacity in various ways. For example, the Defense Office of the Special Court for Sierra Leone maintains a list of qualified counsel to represent accused who cannot afford legal assistance; advocates with the court administration and judges to ensure that defense lawyers (both privately retained and court-funded) have the necessary resources to prepare a defense; hires defense investigators to inquire into factual issues relevant to an accuseds defense; and participates in regular discussions with court management concerning the needs of defense counsel.107
Bosnias War Crimes Chamber has a Criminal Defense Support Section (known by its Bosnian acronym OKO), headed by an experienced international defense lawyer, which forms part of the administrative and management structure of the War Crimes Chambers Registry. As well as providing logistical and administrative support to all defense counsel, the OKO also engages in intensive training and capacity-building for Bosnian lawyers participating in trials before the War Crimes Chamber. The OKO manages the accreditation of lawyers seeking to appear before the War Crimes Chamber, in part to ensure that the lawyers have the necessary training and expertise. It also maintains five regionally-based teams that provide assistance to individual Bosnian lawyers defending persons indicted by the chamber. The assistance provided includes helping with the preparation and presentation of legal arguments, and the hiring of expert consultants if necessary.
There is a profound need for a Defense Office fulfilling these kinds of functions at the IHT. As previously noted, the Iraqi legal system has never before undertaken trials of this scope or complexity, and Iraqi lawyers have been isolated from the rapid development of international criminal law over the last 15 years. Yet contesting cases under the IHTs substantive jurisdiction requires a deep knowledge of international criminal law and international law more generally, as well as knowledge of modern investigative techniques and methods. The RCLO sought to build this capacity among IHT prosecutors and judges, including tens of millions of dollars worth of investigative assistance and substantial training programs. However, private Iraqi defense lawyers were not incorporated into these training programs, and no expert legal or investigative assistance was made available in the lead-up to the Dujail trial. Hence, the degree of inequality of arms between the prosecution and the defensein terms of institutional support, expertise and training, and infrastructureis potentially considerable.108 A robust and well resourced Defense Office, with international advisors, would be one way to redress this imbalance.
The Rules of Procedure provide for the creation of a Defense Office that could potentially play a role similar to those at the Special Court and the War Crimes Chamber.109 However, the poor implementation of these provisions has meant that, in fact, the IHT Defense Office has not realized this potential, and functions essentially as a legal aid office for indigent accused. The picture is one of disarray in terms of recruitment and training, and fraught relations between private counsel and Defense Office lawyers, with the latter reluctant to provide any assistance or support to non-Defense Office defense lawyers.
A director for the Defense Office was not appointed until early September 2005110six weeks prior to the start of the Dujail trialand the Defense Office came into existence around the same time. Two other Iraqi lawyers were appointed to it shortly after that. These three lawyers participated in two training sessions in international criminal law in September 2005. One of the Defense Office lawyers was appointed to represent defendant Muhammad Azzawi in the Dujail proceedings, but did not meet with his client for at least a month after the opening of the trial.111
When private defense lawyers for the Dujail defendants threatened to boycott the trial after the assassinations of Sadoun al-Janabi and Adel al-Zubeidi, an additional five Iraqi defense lawyers were recruited by the Defense Office in October and November 2005. These lawyers were recruited to act as stand-by counsel in the event that the private defense lawyers failed to appear in court, and were given copies of the dossier of evidence. However, because they were recruited only a few weeks before the trial was to resume, they were not provided with any training in international criminal law. The threatened defense boycott of the court session of November 28, 2005, did not materialize, but in December six of the Defense Office lawyers resigned en bloc because their names had been inadvertently revealed to the media by a court official.112 To replace them new lawyers were recruited, but these also did not have the opportunity to undergo training in international criminal law before a January 2006 boycott by the private defense lawyers led the trial court to appoint the new Defense Office lawyers as counsel for the defendants until their own counsel returned to court.113 When Human Rights Watch interviewed the Defense Office lawyers again in March 2006, they stated that they had not yet received further training, and that they did not have access to international criminal law judgments in Arabic.114
Human Rights Watchs concerns about the in-court performance of Defense Office lawyers are detailed below (see Section IV.7), but it is clear that the Iraqi lawyers staffing the office have not had adequate training in substantive international criminal law, or in the relevant aspects of the fair trial procedure that should underpin any international criminal law prosecution. It appears that the Defense Office was eventually given a compact disc containing Arabic translations of key international criminal law judgments in May or June 2006. However, by their own admission, the Defense Office lawyers did not read these judgments. Indeed, it would be unrealistic to expect the lawyers to become conversant with judgments that are often hundreds of pages long, and which concern criminal laws not previously contained in Iraqi law, in the absence of formal instruction and some guidance.
It is noteworthy that the closing statements for the defendants read by Defense Office lawyers in July 2006 (after another boycott by private defense lawyers) did contain extensive reference to and discussion of the relevant international criminal law principles. However, Human Rights Watch has determined that these statements were written not by the Defense Office lawyers but by international advisors to the IHT. The statements were drafted in English, translated into Arabic, and provided to the Defense Office lawyers to read aloud in courtindicating the underlying lack of capacity among the Defense Office lawyers themselves.115
The Defense Office has not hired any investigators to work on behalf of defendants in the Dujail trial or any other trial before the IHT.116 The Defense Office also does not provide logistical, administrative, or other support to privately retained defense lawyers.117 In interviews over several months, the director of the Defense Office reiterated his view that the Defense Office did not, and would not, have a role in supporting or assisting the private defense lawyers in the Dujail case.118 Other Defense Office lawyers emphatically seconded this view, arguing that the role of the Defense Office is to assist court-appointed lawyers only. They also stated that they preferred to keep their distance from the private defense lawyers out of concern for their own security.119
Relations between Defense Office lawyers and private defense lawyers deteriorated further after January 2006 when the Defense Office lawyers were brought into court to replace the boycotting private lawyers. The private defense lawyers filed a complaint with the Iraqi Bar Association, arguing that the payment arrangements between Defense Office lawyers and the IHT amounted to a salary, and this violated the Iraqi Law of the Legal Profession.120 The Iraqi Bar Association demanded that the IHT disclose to it the identity of the Defense Office lawyers, but the court declined to do so.121 These divisive developments have resulted in little or no professional interaction between the Defense Office lawyers and the privately retained lawyers.
The Defense Office premises are located in the same building as the IHTs administrative offices, and thus Defense Office lawyers do not have the difficulties in gaining access to the court administration encountered by private lawyers. However, when Human Rights Watch visited the premises of the Defense Office in November 2005, it found the accommodations to be very basic: one office with three desks and two computers with no internet connection, shared among seven lawyers. Defense Office lawyers complained consistently that the IHT had not allocated resources to improve the facilities available to them, and that they had no administrative or secretarial support. On subsequent visits to the Defense Office premises in July 2006 Human Rights Watch found no improvement in the conditions and indeed observed that the office no longer had computers.
No security arrangements were in place for Defense Office lawyers at the opening of the Dujail trial in October 2005. When Human Rights Watch interviewed the Defense Office lawyers in November 2005 and February and March 2006, they stated that they had been offered relocation into the International Zone after the killing of Sadoun al-Janabi, but living accommodation had still not been made available. The Defense Office lawyers noted that while the court was in session they stayed in the International Zone, but when the court adjourned for a recess the lawyers left the International Zone without secure transportation.122 Their homes also remained unprotected. Like the private defense lawyers, Defense Office lawyers were also given the option of being licensed to carry a handgun, and handguns were issued to them in mid-February 2006.123 Also, like the private defense lawyers, the Defense Office lawyers were given the option of nominating three guards, to be approved by the Ministry of Interior and paid for by the Iraqi government. According to the Defense Office lawyers, some of them had one or two nominated guards approved by the Ministry of Interior, but none of the approved guards salaries had been paid.124
The Defense Office lawyers complained that, despite repeated requests to the courts administration to improve their security arrangements, the court was not responsive and the Defense Office lawyers asked the RCLO to intercede.125 The RCLO responded by taking up the issue directly with the Prime Ministers Office, which has responsibility for allocating secure apartments within the International Zone. Representatives of the RCLO noted that the waiting list for accommodation within the International Zone runs to 1,500 families but they continued to press the issue with the Prime Ministers Office.126 When Human Rights Watch again interviewed Defense Office lawyers in July 2006 they stated that apartment accommodation had recently become available in the International Zone and that some had been able to relocate to these apartments with their families.127
Rule 30(6)(a) and (b) of the IHTs Rules of Procedure and Evidence permit the director of administration to appoint an international advisor to the Defense Office. The advisor is required to have experience and expertise in international war crimes trials.128 An international advisor was not appointed to the Defense Office until mid-April 2006. The advisor appointed had considerable experience as an investigator with international criminal tribunals, but was not a lawyer. He appears to have made a good faith effort to offer assistance to the private defense lawyers during the Dujail trial, but over some time private defense lawyers became reluctant to accept his assistance on the grounds that the international advisor was regarded as serving the interests of the RCLO (which played a role in his recruitment).129 Private defense lawyers accused the advisor of talking to defense witnesses ex parte and without the permission of the defense lawyers.
44 IST Statute (revoked), art. 3(c).
45 Ibid., art. 9(a).
46 IHT Rules of Procedure and Evidence, rules 1315.
47 IST Statute (revoked), art. 9(e).
48 IHT Rules of Procedure and Evidence, rule 30.
49 IHT Statute, art. 7(1).
50 Nancy Youssef, Salem Chalabi Reportedly Removed from Post Overseeing Saddam Trial, Knight Ridder News Service, September 8, 2004. Charges were brought against Chalabi in an unrelated criminal case and referred to the Central Criminal Court of Iraq.
51John Burns, Hussein Tribunal Shaken by Chalabis Bid to Replace Staff, New York Times, July 20, 2005; John Burns, Ignoring U.S., Chalabi Pursues Attempt to Fire Hussein Judge, New York Times, July 27, 2005; Edward Wong, Iraqi Leader Vows to Block Purges on Hussein Tribunal, New York Times, July 29, 2005; Kathleen Ridolfo, Iraq: Debaathification Commission Backs Away from Tribunal Purge, Agence France-Presse, July 29, 2005.
52 IHT Statute, art. 7(1)(D).
53 IHT Rules of Procedure and Evidence, rules 1315.
54 Human Rights Watch interview with chief investigative judge, Baghdad, February 2006; Human Rights Watch interview with non-Iraqi diplomatic official observing the court, Baghdad, November 2005.
55 Human Rights Watch interview with court administrative staff, Baghdad, March 2006.
56 Human Rights Watch interviews with IHT judges, Baghdad, November 2005, February 2006 and March 2006.
57 Human Rights Watch interviews with IHT judges, Baghdad, February and March 2006.
58 Human Rights Watch interview with IHT judge, Baghdad, March 2006.
59 For concerns about the courts approach to in-court protective measures see below, Section IV.4.b.
60 See, for example, discussion in Eric Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (Philadelphia: University of Pennsylvania Press, 2005), pp. 4143, See also Human Rights Watch, Justice in Motion: The Trial Phase of the Special Court for Sierra Leone, vol. 17, no. 14(A), October 2005, http://hrw.org/reports/2005/sierraleone1105/, pp. 20-27.
61 IHT Rules of Procedure and Evidence, rule 15.
62 Human Rights Watch interview with non-Iraqi diplomatic personnel, Baghdad, November 2005.
63 Human Rights Watch interview with non-Iraqi diplomatic personnel, Baghdad, November 2005.
64 Human Rights Watch interview with private defense lawyers, Amman, September 2006; Human Rights Watch interview with RCLO representatives, Baghdad, October 2006. The defense lawyers claimed that there was an agreement with the RCLO that the costs of transporting the witnesses for Saddam Hussein out of Iraq and accommodating them in a neighboring country would be reimbursed by the RCLO to the defense lawyers, and that the RCLO reneged on this agreement. The RCLO confirmed that they were willing to meet some costs, but that the defense lawyers concerned demanded a lump-sum of cash up front. This was unacceptable to the RCLO, particularly without guaranteed proper accounting of expenditures, and no reimbursement agreement was ultimately reached.
65 Human Rights Watch interview with Witness A, March 2006.
66 Under Iraqi law, a complainant is someone who alleges that they suffered injury as a result of the crime, and who has a right to file suit for compensation with the criminal court trying the case. Iraqi Code of Criminal Procedure, arts. 9, 25.
67 Human Rights WatchICTJ trial observation notes, February 13, 2006.
68 Human Rights Watch interview with Witness A, March 2006.
69 See Human Rights Watch, The Former Iraqi Government on Trial, p. 12. Human Rights Watch interview with private defense lawyer for a non-Dujail accused, October 2005.
70 Human Rights WatchICTJ trial observation notes, October 19 and December 5, 2005; April 19 and July 11, 2006.
71 For example, on April 19, 2005, lawyers for the victims asked about a motion they had submitted to the court, and the court could find no record of it. Human Rights WatchICTJ trial observation notes, April 19, 2006.
72 Human Rights Watch interviews with IHT judges Baghdad, February and March 2006.
73 Because the renovation of the building housing the courtroom is ongoing, the courts administrative offices (for prosecutors, investigative judges, trial judges, and appeal judges) have been provisionally located on one floor of a multi-storey building in the heart of the International Zone (this office building also accommodates numerous other Iraqi government agencies, such as the National De-Bathification Commission). Privately retained defense lawyers are not provided with badges that would allow them direct access to the building. Instead, they must place a phone call 24 to 48 hours ahead of the desired visit, and arrange to have their names listed at the entrance to the building. On the day they seek to visit, the lawyers must enter the International Zone on foot through the pedestrian checkpoint (Checkpoint 3) and then traverse two other checkpoints over approximately 500 meters, before reaching the court administrative building. Once they arrive at the building, there is no guarantee that their names have in fact been communicated to the security desk at the entrance. If the name has not, the lawyer will be unable to enter; if the name is at the entrance, the lawyer may still have to wait for an hour or more before gaining access to the building. Once they enter the building, they are not permitted to go beyond the lobby area, and must wait for a court employee to meet them to either hand over documents or receive them. Private defense lawyers indicated that because the process is both time-consuming and fraught with uncertainty they rarely try to gain access to the administrative offices of the court.
74 Human Rights Watchs experience was that entry via Checkpoint 3 was possible if the entrant had two forms of legible photo identification. However, what amounted to acceptable identification could vary, and thus entrants can occasionally be refused. The pedestrian checkpoint has also been the subject of several suicide attacks in the past 12 months.
75 Human Rights Watch interview with IHT judge, Baghdad, March 2006; and Human Rights Watch interview with prosecutor, Baghdad, February 2006.
76 Human Rights Watch interview with private defense lawyers, Baghdad, March 2006.
77 Human Rights Watch interview with IHT judge, Baghdad, March 2006.
78 Human Rights Watch interview with IHT judge, Baghdad, February 2006.
79 Human Rights Watch interview with private defense lawyer, New York, April 2006.
80 Human Rights WatchICTJ trial observation notes, October 19, 2005.
81 The original dossier contained approximately 900 pages. It was supplemented by further material disclosed by the prosecutor in late January and early March 2006. For concerns about the practice of disclosure during the trial see below, Section IV.3.ac.
82 Human Rights Watch interview with IHT judge, Baghdad, October 2005.
83 Human Rights Watch interview with private defense lawyer, Baghdad, October 2005.
84 Human Rights Watch interview with Defense Office lawyers, Baghdad, November 2005. See Section III.5, below, for further discussion concerning the Defense Office.
85 Human Rights Watch interviews with private defense lawyers, Baghdad, OctoberNovember 2005. According to representatives of the RCLO, the RCLO was able to secure one apartment in the International Zone in November 2005 that could have been made immediately available. Human Rights Watch interview with RCLO representatives Baghdad, July 2006. Under the security conditions prevailing in Iraq, the RCLO was unable to safeguard defense lawyers living outside the International Zone, and they made this clear to the defense lawyers when the latter made their choices.
86 The killings of al-Janabi and al-Zubeidi came at a time when militia activity was intensifying in Baghdad, and there were persistent rumors that death squads and secret detention facilities were being operated by the Ministry of Interior. The Ministry of Interior was frequently alleged to be dominated by the paramilitary forces of the Shia political party the Supreme Council of Islamic Revolution in Iraq (SCIRI). Subsequently, the Ministry of Interior was indeed found to be operating secret detention facilities, and there were continued reports of death squads operating from among the police force and the ministry. See, for example, Widespread abuse of Iraqi prisoners and detainees by Iraqi police and commandos, in All Things Considered, National Public Radio, July 12, 2005, 8:00 PM EST; John F. Burns, If Its Civil War, Do We Know It? New York Times, July 24, 2005; Peter Beaumont, Revealed: Grim world of new Iraqi torture camps, Observer (London), July 3, 2005; Edward Wong and John F. Burns, Iraqi Rift Grows As Secret Prison Enrages Sunnis, New York Times, November 17, 2005; Solomon Moore, The Conflict in Iraq; Killings by Shiite Militias Detailed, Los Angeles Times, September 28, 2006; Ali Al-Fadhily and Dahr Jamail, Government Death Squads Ravaging Baghdad, IPS News, October 19, 2006. See also Iraq: End Interior Ministry Death Squads, Police Must be Held Accountable for Killings, Human Rights Watch news release, October 29, 2006, http://www.hrw.org/english/docs/2006/10/29/iraq14473.htm.
87 Human Rights Watch interview with private defense lawyers, October 2005.
88 Human Rights Watch interview with RCLO representatives, Baghdad, March 2006.
89 Letter from Judge Rizgar Amin, dated December 7, 2005, viewed by Human Rights Watch on December 9, 2005.
90 See International Center for Transitional Justice and Human Rights Center, University of California at Berkeley, Iraqi Voices.
91 Ibid, pp. 2627.
92 As part of its research on torture in detention, Human Rights Watch conducted regular observation of felony trial proceedings at the Central Criminal Court of Iraq, Baghdad, during 200405.
93 Human Rights WatchICTJ observer notes on Arabic-language press coverage in Baghdad, Iraq, December 2005 and FebruaryMarch 2006. See below, Section IV.1., for further discussion of prejudicial comments made by public and political figures throughout the course of the Dujail trial.
94 Human Rights Watch, Bringing Justice: The Special Court for Sierra Leone Accomplishments, Shortcomings, and Needed Support, vol. 16, no. 8(A), September 2004, http://hrw.org/reports/2004/sierraleone0904/, p.33; Justice in Motion, p. 28.
95 Human Rights Watch, Justice in Motion, p. 29.
96 The court televises trial sessions with a 20-minute delay to allow for deletion of sensitive information, or to edit out remarks by defendants that the court deems inflammatory or prejudicial to national security. The exact criteria applied when redacting the televised sessions are not publicly available, and it is unclear whether they are consistently applied. Closed sessions are not televised.
97 ICTJ trial observation consultant report, March 28, 2006, paras. 6888.
98 The IHT does not maintain verbatim transcripts of any session. For further discussion, see below, Section IV.3.c.
99 A court spokesperson, who was not the chief investigative judge, was in fact appointed initially, but his tenure was short-lived. Because of concerns about his security, the spokesperson could not reveal his name and this proved unacceptable to journalists. The chief investigative judge, whose identity was already publicly known, then stepped into the gap. After the amendment of the statute of the court in September 2005, it became a requirement that the spokesperson be a judge or prosecutor.
100 IHT Statute, art. 7(1)(F).
101 Human Rights Watch interviews with IHT judges, Baghdad, November 2005 and FebruaryMarch 2006.
102 Interview by the Arabic-language Al-Hayat newspaper (London) with Judge Rizgar Amin, December 21, 2005 (summary on file with Human Rights Watch).
103 Human Rights Watch interview with IHT judge, Baghdad, March 2006.
104 Human Rights Watch interview with IHT president, Baghdad, March 2006. The president of the court died in June 2006 while undergoing surgery, and has been replaced by another Appeals Chamber judge.
105 Human Rights Watch interview with RCLO representative, Baghdad, October 2006.
106 European Commission of Human Rights, Kaufman v. Belgium (App. 10938/84); (1986) 50 DR 98, p. 115; European Court of Human Rights, Foucher v. France (App. 22209/93), Judgment of 18 March 1997; (1998) 25 EHRR 234, para. 34.
107 Human Rights Watch, Bringing Justice, pp. 2128; Justice in Motion, pp. 1517; Looking for Justice, pp. 2223.
108 As noted above (see Section II), Saddam Hussein, Barzan al-Tikriti, and Taha Yassin Ramadan privately retained non-Iraqi defense counsel. However, apparently only one of Saddams non-Iraqi lawyers, US attorney Ramsey Clark, has international criminal trial experience (he has defended individuals before the International Criminal Tribunal for Rwanda ). The Dujail trial chamber did not provide legal-quality translation for non-Arabic-speaking lawyers such as Ramsey Clark, and was generally reluctant to allow him to speak in court. For example, on December 5, 2005, the court initially declined to hear Clark on the grounds that he did not speak Arabic, and then changed its mind. Overall, the poor quality of translation meant that his ability to follow proceedings was impeded. Under these conditions, non-Arabic-speaking, non-Iraqi lawyers with direct experience in defending international criminal cases are effectively precluded from directly participating in defending the accused. In the first days of the Anfal case, the court has ruled orally that non-Iraqi lawyers cannot have a speaking role in court.
109 IHT Rules of Procedure and Evidence, rule 30. This provides that the director of administration shall establish a Defense Office and appoint a director for the office from among the lawyers working for the office. The director of the Defense Office serves at the pleasure of the director of administration, who may remove the Defense Office director at any time. The Defense Office is mandated to provide legal counsel to accused persons who cannot afford counsel, to appoint a lawyer on a temporary basis to persons in detention who have not yet appointed a lawyer, and to provide the required facilities to enable the lawyer in preparing his defense.
110 Human Rights Watch interview with Defense Office lawyer, Baghdad, November 2005.
111 Human Rights Watch interview with Defense Office lawyer, Baghdad, November 2005.
112 Human Rights Watch interview with Defense Office lawyers, Baghdad, February 2006.
113 Human Rights Watch interview with Defense Office lawyers, Baghdad, February 2006. The Defense Office lawyers were imposed on the defendants against their will. For our concerns about the imposition of lawyers against the will of the accused, see Human Rights Watch, The Iraqi High Tribunal and Representation of the Accused, February 2006, http://hrw.org/backgrounder/mena/iraq0206/.
114 Human Rights Watch interview with Defense Office lawyers, Baghdad, March 2006. The RCLO undertook the translation of over 12,000 pages of international criminal law judgments from English to Arabic. These were provided to judges of the court in December 2005.
115 The advisor told Human Rights Watch that he had provided international criminal law references to the Defense Office lawyers as part of his assistance with the closing statements. However, Defense Office lawyers confirmed Human Rights Watchs conclusion that the advisor had written the text of the closing statements. Human Rights Watch interviews with Defense Office lawyers, Baghdad, July and September 2006.
116 While the investigative judge is under an obligation to seek out exculpatory evidence, this does not necessarily mitigate the need for defense investigators in lengthy and complex criminal cases. For example, in the Dutch trial of two former Afghan military officers for torture committed in Afghanistan in the 1980s, the court authorized an investigator to travel to Afghanistan on behalf of the defense to collect evidence to present to the investigative judge. See Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art, vol. 18, no. 5(D), June 2006, http://hrw.org/reports/2006/ij0606/, pp. 1718. It is noteworthy that the Bosnian War Crimes Chambers Criminal Defense Support Section, which functions in a civil law system, also facilitates the hiring of defense investigators.
117 One exception to this was the attempt by an international advisor to the Defense Office to provide legal assistance to privately retained lawyers.
118 Human Rights Watch interviews with Defense Office director, Baghdad, November 2005 and FebruaryMarch 2006.
119 Human Rights Watch interviews with Defense Office lawyers, Baghdad, November 2005 and March 2006.
120 Human Rights Watch interview with Defense Office lawyers, Baghdad, March 2006.
121 The Iraqi Bar Association itself was reportedly plagued with governance problems, and its governing officers were alleged by many lawyers to be corrupt and strongly supportive of the former Bathist government.
122 Human Rights Watch interviews with Defense Office lawyers, Baghdad, FebruaryMarch 2006.
123 Human Rights Watch interviews with Defense Office lawyers, Baghdad, February 2006.
124 Human Rights Watch interviews with Defense Office lawyers, Baghdad, July 2006.
125 Human Rights Watch interviews with Defense Office lawyers, Baghdad, March 2006.
126 Human Rights Watch interview with RCLO representatives, Baghdad, July 2006.
127 Human Rights Watch interview with Defense Office lawyers, Baghdad, July 2006.
128 IHT Rules of Procedure and Evidence, rule 30(6)(b).
129 Human Rights Watch interview with private defense lawyers, Baghdad, September 2006.