HRW on the Murder of a Third Defense Attorney in the Saddam Trial

As was widely reported in the media, Khamis al-Obeidi, a defense attorney for Saddam and his half-brother Barzan Ibrahim, was murdered two weeks ago. Al-Obeidi is the third defense attorney to be killed during the trial.

Human Rights Watch has released a statement regarding the need to protect defense counsel — current and future — appearing before the Iraqi High tribunal. With their permission, I am reproducing it in full:

The brutal murder of Iraqi lawyer Khamis Al-Obeidi, defense counsel for former Iraqi President Saddam Hussein, underlines the urgent need for the Iraqi High Tribunal in Baghdad to protect defense lawyers, Human Rights Watch said today. Its failure to do so jeopardizes the tribunal’s capacity to conduct fair trials.

Al-Obeidi was abducted from his home in Baghdad on June 21, 2006, and his bullet-ridden body was found later that day. The murder of Al-Obeidi reflects the fact that the Iraqi High Tribunal and its U.S. advisors have failed to devise and implement a durable solution to the serious security threats faced by defense lawyers in the Dujail trial.

“The picture that emerges is one of inaction and an apparent indifference on the part of the court and its U.S. advisors in finding a durable security solution for defense counsel,” said Richard Dicker, director of Human Rights Watch’s International Justice Program.

Hussein and seven other defendants are on trial for crimes against humanity, allegedly committed against the population of Dujail after a failed assassination attempt targeting Hussein in July 1982. The trial is now in its final stage, with the defense’s closing statement expected to begin on July 10.

Al-Obeidi is the third defense lawyer to be murdered since the first trial before the Iraqi High Tribunal opened in Baghdad in October 2005. Saadoun Al-Janabi, a lawyer for defendant Awad Al-Bandar, was abducted and murdered on October 20, 2005. Three weeks later, Adil Al-Zubeidi and Thamer Al-Khuzaie, both defense counsel for Dujail defendants Taha Yassin Ramadan and Barzan Al-Tikriti, were attacked by gunmen. Al-Zubeidi was killed, and Al-Khuzaie was injured and fled Iraq.

Although U.S. advisors to the court undertook to have the FBI investigate the murders, no independent investigation has yet been completed and no one has been arrested.

After the killings of Al-Janabi and Al-Zubeidi in 2005, defense lawyers negotiated an arrangement with the Iraqi government and U.S. advisors to the court, under which defense lawyers would be provided weapons licenses and money to employ three armed guards each.

However, in interviews with Human Rights Watch over several months, defense lawyers consistently complained that the money to pay the three armed guards was never provided by the Iraqi government. Some lawyers also experienced difficulties obtaining the weapons licenses. Because the armed guards went unpaid, those defense lawyers who did not have the resources to keep up payments were forced to let the guards go, and rely instead on relatives to volunteer their time as guards.

Human Rights Watch raised these concerns with U.S. advisors to the court in March 2006, but it appears that the situation did not improve. It appears that no single official among the court staff or in the Iraqi government was given responsibility for ensuring that the security arrangement negotiated in November 2005 was properly implemented.

Defense lawyers rejected security guards provided by Iraq�s Interior Ministry because the lawyers regarded the ministry as including staff hostile to the attorneys and their clients. The defense lawyers alleged that interior ministry personnel were connected with the killings of Al-Janabi and Al-Zubeidi.

Defense lawyers also rejected an offer that they relocate into the fortified International Zone. They stated that the offer of relocation had not initially included their families. Some lawyers also refused the offer on the grounds that living in the International Zone — the heart of the U.S. presence in Iraq and the seat of the new government — compromised their perceived independence and their ability to zealously defend their clients. For those lawyers who maintained a legal practice in Baghdad’s ordinary courts, International Zone relocation also implied restrictions on their ability to continue their other legal work. Finally, defense lawyers also 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.

After Al-Zubeidi’s killing, several Iraqi defense lawyers responded to the security risks by choosing to leave Baghdad whenever the Iraqi High Tribunal was not in session. U.S. advisors to the tribunal 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 hitherto been provided free of charge, although no express commitment to continue this has been made.

Those defense lawyers who felt that they could not leave the country between court sessions, because they felt that they could not leave their residences unattended for fear of theft, or because they could not afford to take their families with them outside the country, were essentially left to make whatever security arrangements they could on their own.

In December 2005, defense counsel for all defendants submitted a detailed, seven-page motion concerning security to the Iraqi High Tribunal in open court. The motion included a proposal for security arrangements which defense counsel believed would adequately protect them and ensure their ability to fully participate in the trial. The court has ignored this proposal, failing to accept, reject or rule on it in any way.

The approach of the court and its U.S. advisors appears to have been that, as long as no further attacks on defense counsel occurred, no additional steps were taken to develop a durable solution to the ongoing security risks faced by defense lawyers. “Under such circumstances, the murder of Mr. Al-Obeidi was a tragedy waiting to happen,” Dicker said.

The security of defense counsel appearing before the court is of equal importance as the security of judges and prosecutors — and should benefit from the same level of attention and resources. If defense counsel cannot participate effectively in the trial process due to security risks, the court’s capacity to conduct fair trials is irreparably damaged.

The court must develop a sustainable and effective security arrangement for defense counsel. It must respond to their proposals, and provide reasons for accepting, rejecting or amending them. If the court fails to act decisively to develop security arrangements which regain the confidence of defense counsel in the court’s 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.

The IHT’s failure to provide adequate protection for defense counsel is but one of many reasons why Saddam’s trial was fundamentally unfair. Those interested in the other reasons might want to see my recent post on the Grotian Moment blog here. Case-Western Law School will also be hosting an international conference on the trial the first weekend in October, which will include a debate between Michael Scharf and myself (as well as two others to be confirmed) on whether the trial was fair. It should be a great conference; I’ll post more details when they become available.