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This week the world will tune back in to the first war-crimes trial of a head of state in the Middle East, reaffirming that even dictators like Saddam Hussein are not above the law. Yet this rule of law requires lawyers, and thelawyers involved in Saddam’s case are not having an easy time. One judge was murdered in the spring of 2005, two defense counsel were murdered in the fall, and Iraqi officials announced earlier this month that Chief Judge Rizgar Mohammad Amin wants to resign. Normally, one might expect an organization like the United Nations � which itself exists partly to promote the rule of law and to prevent war crimes � to support those trying to re-establish the rule of law in Iraq. But rather than supporting the courageous Iraqis working on Saddam’s historic trial, the United Nations has shamefully opted to stand by and watch. BRAVE IRAQIS The problem certainly isn’t with the Iraqi participants in the Saddam trial. The fact that Saddam is being tried domestically by his fellow countrymen at the Iraqi High Court � and not a foreign court � is a cause of pride for many Iraqis. Because of the current unrest, however, having the trial in Iraq has demanded the courage and professionalism of a group of dedicated Iraqi jurists � Sunnis, Shiites, and Kurds alike. I came face to face with this courage and professionalism in early 2005 while assisting with an International Bar Association-run training session for judges on the new Iraqi High Court.
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We were a few days into the London-based course on international criminal law when we learned that insurgents had assassinated one of the judges who was still in Iraq. The murder was a deadly reminder of the risk to members of the Iraqi High Court � but yet the judges remained undaunted in their dedication to Iraq and its first war-crimes tribunal. Later in the course we were discussing the importance of witness protection. One of the judges, exhibiting the dark humor of many involved in life-threatening professions (like police work, firefighting, and military service), asked, “And what about judge protection?” The comment, while deadly serious, brought chuckles in the room. The judges I met were all well aware of the risks they were taking to serve on the Iraqi High Court. They are courageous professionals, in a time and place that greatly needs them, and they set aside their personal concerns to focus on their commitment to justice and the rule of law. It was clear to me in London that Judge Amin shared this commitment, and thus when the trial began, in the fall of 2005, I was not surprised to see that he took the ultimate risk in the proceedings: accepting the role of chief judge and thus becoming the public face of Saddam’s trial. This commitment is not limited to Iraqi judges but also extends to the prosecutors and defense counsel working on either side of the courtroom. Indeed, the murders this past fall of two Iraqi High Court defense lawyers who had declined housing and protection in the international Green Zone demonstrate that even Saddam’s lawyers are not immune to the violence in Iraq. PLEAS FOR HELP Some of the remaining defense counsel seemed reluctant to accept the Green Zone protection of the Iraqi and American authorities in Iraq. Instead they turned to the United Nations and asked the international community for support, including personal protection. Such requests for support were certainly understandable. Those who helped create the Iraqi High Court saw the need for U.N. and international support, and they specifically included provisions in the Iraqi High Court statute to permit assistance with legal advice and to monitor due-process standards. Yet with the exceptions of the United States, Great Britain, and Australia, few others have offered to help. Shamefully, Kofi Annan and the United Nations turned their backs on the Iraqi tribunal and refused to provide any assistance. Their rationale was that the Iraqi High Court might impose the death penalty on Saddam and thus the United Nations did not want to be involved in the trial. But it is not just the Iraqi High Court, as an institution, calling for U.N. and international assistance. Recently, even the defense counsel participating in the Iraqi High Court proceedings have been calling for help. Yet still the United Nations does nothing. THE NEED FOR AID This inaction is not for lack of precedent of providing assistance in other war-crimes trials. In the wake of the atrocities in Rwanda and Yugoslavia, the United Nations and the international community stepped forward, at considerable expense, to help investigate and prosecute war crimes in those regions. I was part of that effort when I served as a prosecution attorney attached to the Srebrenica genocide and Slobodan Milosevic trial and investigation teams at the U.N. War Crimes Tribunal in The Hague. Through my work at the United Nations I saw the good that the international community can do when it wants to help re-establish the rule of law. I also know the comfort that is associated with international community-sponsored protection in war-torn and post-conflict regions. When I helped execute search warrants with our criminal investigators in Republika Srpska, the often-hostile part of Serb-controlled Bosnia, it was comforting to know that I was working as part of a large international team. In addition to the U.N. investigators who led the raids, we received manpower, protection, and logistical support from the NATO-led force in Bosnia. There were armored personnel carriers from Spain, helicopters and troops from the United States, and operational and planning support from the United Kingdom. Our riot-control forces were from Italy, and the traffic police were from Bosnia. Personally, I was fortunate to have some of the best close-protection resources on earth from a special U.S. Army unit. And as much as I may have joked about having to wear my powder-blue U.N. armband and baseball cap during such operations, deep down I knew that if someone in Bosnia felt twitchy, he or she might have second thoughts before shooting a U.N. official and causing an international incident. The United Nations is not a cure for every problem, but it is, nonetheless, often a key ingredient to many solutions. DOUBLE STANDARDS What is troubling about Iraq and the Saddam trial is how the United Nations and much of the international community can state that they are truly concerned that Saddam not receive the death penalty, yet at the same time they continue to turn their backs on requests for assistance from Saddam’s defense lawyers. Unfortunately, their general excuses regarding the death penalty are not credible. The United Nations already provides assistance with war crimes and justice programs in Rwanda and Afghanistan, two countries that, like Iraq and 70 other countries, permit the death penalty. Indeed, a review of the countries with the death penalty shows a large number that receive U.N. aid or assistance. If the United Nations can assist with justice programs in Rwanda and Afghanistan, why not help in some way with Iraqi war-crimes trials? If one is predisposed against capital punishment, it is one thing to refuse to help judges and prosecutors who may contribute to such a sentence; it is quite another to turn your back on the lawyers who are charged with defending their client from the noose. TRYING TO EXPLAIN Yet I can understand the underlying issues. As I told the Iraqi judges who are now trying Saddam, many in the international community (including the United Nations and many of its members) were opposed to the war in Iraq, and, therefore, some in that community may be more critical of Iraqi domestic efforts to bring Saddam to justice. In addition to the war issue, many in the international community would have preferred that Saddam be tried at an international tribunal. Rather than a domestic court in Iraq, they would have preferred an international tribunal, like the ones for Rwanda and the former Yugoslavia, or a hybrid court similar to the Special Court for Sierra Leone. For some, the Iraqi decision to try Saddam in Iraq will be used as an excuse to abandon what was already going to be a challenging step forward in international law: an internationalized domestic-war-crimes tribunal. Nevertheless, despite the good intentions of many in the international community, the decision of what court tries Saddam is a decision for the Iraqi people. The U.N. Security Council endorsed the sovereignty of the government in Iraq, and the Iraqi elected assembly ratified the decision to try Saddam domestically at the Iraqi High Court. Despite the claims by some pundits, the International Criminal Court in The Hague has no jurisdiction over the crimes committed during the Saddam regime. This is a time when many in the international community speak of “capacity building” to promote democratic institutions in developing countries and urge those countries to take “ownership” of domestic concerns. Assisting the Iraqi High Court � even if such assistance is limited to Iraqi High Court defense counsel � promotes these goals. Those who have watched on the sidelines, saying they cannot work with the Iraqi High Court because they fear promoting capital punishment, are now out of legitimate excuses. Saddam’s defense counsel are asking for support. If former U.S. Attorney General Ramsey Clark can accept their request even though he too opposes the death penalty, then why not the United Nations? The United Nations should follow the example set by the United States, Britain, and Australia in supporting the Iraqi High Court. To abandon the Iraqi High Court and its defense counsel will both undermine the triumph of law in Iraq and send the wrong message to other nations in the Middle East. For Saddam’s trial not only speaks volumes about Iraq’s efforts to live by the rule of law; it also inspires other oppressed people in the Middle East to imagine a world where their own dictators are not above justice. And it warns future bad actors that the culture of impunity is ending. Such efforts to promote the rule of law work toward noble goals. If the United Nations really stands for justice and the rule of law, it should be working to support the Iraqis who are putting their lives on the line for such ideals � not offering criticism and excuses from the sidelines.


Mark Vlasic is an associate in the D.C. office of Gibson, Dunn & Crutcher. He has taught as an adjunct professor at Georgetown University Law Center. The views expressed here are his own.

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