Raymond M. Brown commenting at Grotian Moment Blog focuses on an event affecting credibility and legitimacy in the trial of Saddam Hussein. Link to the BBC report.
The kidnapping and murder of Sadoun Nasouaf al-Janavi, counsel to Awad al-Bander is more than just a personal tragedy for his family and a blow to his client’s defense. It raises a fundamental challenge to the legitimacy of this first IST trial and conceivably to the functioning of the Tribunal itself. A court cannot claim legitimacy if it is attached to a regime which can not guarantee the physical safety of trial participants. Protected participants must include defense lawyers representing despised or controversial defendants.
Last week's incident is yet another indicator that events in Iraq are being advanced and orchestrated in a manner that can only be described as risky. That word "legitimacy" has a very pliable meaning, it seems, depending on when and where it is used, and by whom. This is from last weeks story.
Saddam Hussein's chief defence strategist, Abdel Haq Alani, an Iraqi lawyer based in Britain, told the BBC: "This incident has proved is what we've been all along saying, that there could be no fair trial in Iraq at this time, there could never be a fair and just trial simply because there's no authority.
"Can anybody imagine that a witness is going to step forward and appear for the defence? If the defence cannot present its witnesses and guarantee safety for them, what kind of a trial is this going to be?
"If lawyers are getting eliminated, executed... how am I going to convince an international lawyer to appear in Iraq in a court and give legal advice on issues of international law of which the Iraqis know very little, including the judges?"
...the purposeful slaughter of defense counsel shines a bright light on the emerging dark secret of the “system” of international justice (a system I still support.) That secret is the imbalance between the resources of prosecutors and the defense.
It may be that a lifetime spent as defense counsel dealing with permutations of fear and intimidation in municipal and international fora have biased me. It may also be that my strong opposition to the proffered legal, strategic and foreign policy bases for the war in Iraq have predisposed me to see the specter of illegitimacy leach from an occupation regime to the IST whose coattails it has sought to ride to international legitimacy.
Biased or not, I cannot see how a single trial or a judicial system can survive assaults on the quality of its justice if it cannot provide an opportunity for defense counsel to function without fear of non-judicial execution. This is especially true if the accused are persons, like Saddam and his satraps who are already believed to be culpable by all the world except their most fervent followers.
The choice to hold IST trials in Iraq while security remains a deep problem raises the unwelcome aroma of political decision making. Allowing trials to proceed in an environment where the process is tainted by violence and fear undermines legitimacy. Whether the choice is legal or political, it is a bad one.
This also bothers me:
Four of the five judges and most of the prosecution lawyers have remained anonymous for safety reasons.
The names of the chief judge and the top prosecutor were the only ones revealed.
But the defence team's identities were not kept secret, and Saddam Hussein's top lawyer, Khalil Dulaimi, said many had been threatened.
Yesterday's truck bombs in Baghdad further underscore the security issue.
The trial has been put on hold for a few more weeks. Perhaps conditions will improve by then. One can hope. This trial has enormous symbolic importance.