Human Rights Watch is very concerned about reports concerning the removal of Judge Abdullah al-Amiri, presiding judge in the on-going trial of Saddam Hussein and others for genocide, war crimes and crimes against humanity. This appears to be improper interference in the independence of the tribunal, and may greatly damage the court.
According to reports appearing this evening, Judge Abdullah al-Amiri, the presiding judge of the second trial chamber of the Iraqi High Tribunal was removed from his position, by a decision of the Prime Minister and Cabinet (the Council of Ministers). According to these reports, Ali Dabbagh, spokesperson for the Prime Minister, said:
“We have asked the court to replace the judge because he has lost his neutrality after he made comments saying Saddam is not a dictator. The court told us he has already been replaced. This was a decision by the cabinet of the prime minister.”
Article 4(4) of the Statute of the Iraqi High Tribunal (IHT) provides that Iraq’s Presidency Council can, upon recommendation of the Council of Ministers, transfer a judge or prosecutor from the court to the Supreme Judicial Council, for “any reason.” A judge transferred to the Supreme Judicial Council retains his status as a judge, but loses any role he has in the IHT. Judges have also expressed the concern that, upon transfer, they may lose the personal protection measures afforded to them by the IHT.
Judge al-Amiri had been the subject of intense public criticism after his September 14 courtroom comment that former President Saddam Hussein was “not a dictator.” The full statement by Judge al-Amiri to Saddam Hussein, as reported by The New York Times, was: “I will answer you: you are not a dictator. Not a dictator. You were not a dictator. The people or those who are around the official make him a dictator, and it is not just you. This is the case all over the world.”
If accurately reported, the Council of Ministers’ action is a clear and damaging violation of the judicial independence of the Iraqi High Tribunal. The transfer of Judge al-Amiri off the case reflects 1) a grave failure of the IHT Statute to adequately protect judges from interference, and 2) a complete lack of respect for judicial independence on the part of the Iraqi government.
Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which Iraq ratified in 1971, provides that all persons have a right to be tried by a “competent, independent and impartial tribunal.” The independence of judges must be guaranteed by ensuring that the conditions of their appointment and dismissal are free from executive interference or control.1 The United Nations’ Basic Principles on the Independence of the Judiciary provide that the independence of judges be adequately secured by law. Article 4(4) of the IHT Statute undermines the independence of the IHT judges, because it allows the executive to remove any judge, for any reason and at any time, from a case.
In those situations where there is an allegation of bias or misconduct on the part of a judge, the procedure for removal or suspension must itself be impartial and conform to the procedures of the court. The IHT has a procedure contained in its regulations to independently adjudicate allegations of bias. A complaint about bias should be submitted to the President of the Court, who refers it to the appeals chamber of the tribunal, which issues a decision within three days (Rule 8, Rules of Evidence and Procedure).
The transfer of a judge for reasons of bias is thus wholly a matter for the appeals chamber of the IHT, not the Council of Ministers. By riding roughshod over the court’s own rules and procedures, the Council of Ministers has not only interfered with the court’s independence, but greatly undermined the court’s own appearance of neutrality and objectivity. The transfer effectively sends a chilling message to all judges: toe the line or risk removal.
This development continues a disturbing trend observed in the early phases of the Dujail trial. When the first presiding judge in the Dujail case, Rizgar Amin, was not deemed firm enough in handling Saddam Hussein’s courtroom behavior, he was publicly criticized by the then-Minister of Justice and parliamentarians, and bitterly attacked in the press. Judge Amin resigned out of protest.
Judges must not be the subject of inflammatory criticism by government officials. Any process for disciplining or removing judges must occur in accordance with independent judicial procedures, and not take place in the court of public opinion.
 Human Rights Committee, General Comment No. 13: Equality Before the Courts and the Right to A Fair Trial and Public Hearing by an Independent Court Established by Law, April 13, 1984.