Crimes Against Humanity—Saddam Defense Seeks Judge Disqualification

This week, boycotting defense attorneys in the international crimes trial of Saddam Hussein at the Iraqi High Criminal Court (formerly the Iraqi Special Tribunal) filed a motion asking for the disqualification and removal of the chief judge.^[1] Former U.S. Attorney General Ramsey Clark and lead attorney Khalil Dulaimi have also urged court‑appointed counsel for Saddam to resign.^[2]

On Wednesday, the defense team—boycotting the proceedings, but still representing their client—filed a motion to have Judge Rauf Rashid Abdel Rahman disqualified on the basis of prejudice and bias. The motion reportedly alleges overt manifestations of bias and "repeatedly violated standards of fair trial, human rights and basic due process in the courtroom."^[3] The motion is said to cite international law standards as the basis for a defendant’s right to be tried by an impartial bench.^[4]

The reliance in this motion on general principles may be necessitated by the fact that the recent 2005 Statute of the Iraqi High Criminal Court lists only “high moral character, integrity, and uprightness” core qualifications for judges.^[5] However, Rule 11 of the Iraqi Special Tribunal Procedure and Evidence still provides for disqualification of judges for lack of impartiality and independence as follows:

Second: During an investigation, trial or appeal, Judges must perform their duties with impartiality.
Third: A Judge may not sit in any case in which he has a personal interest or concerning which he has or has had any personal association which might affect his impartiality.
Fourth: A Judge must withdraw from any case in which their impartiality or independence might reasonably be doubted.^[6]

International Law Basis
Principles of international law are generally derived with reference to international treaty law, customary international law, and national laws. In international criminal cases, the applicable standards of international law generally are incorporated into the statutes and rules of the court and in case law arising from international legal proceedings. Although decisions from the International Court of Justice arguably apply, primary sources of jurisprudence in this area are the legal texts and decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC) in The Hague. The ICC is scheduled to begin hearing cases later this year.^[7]

As an example of statutory basis, the ICC Rome Statute, lists “impartiality” as a core qualification for its judges and provides for removal of judges for lack of impartiality.^[8] Other grounds for disqualification, including personal interest, are enumerated in Rule 24 of the ICC Rules of Procedure and Evidence.^[9] Similar provisions are codified in the legal texts of the ICTY and ICTR, in addition to provisions for a defendant’s right to a fair trial.

Factual Basis
Defense counsel’s motion in the Hussein case contained several factual allegations pointing toward the possibility of a judicial predisposition prior to hearing arguments and evidence from both sides in open court:

• Judge Abdel Rahman and his extended family are long‑time residents of the Kurdish village of Halabja. Halabja is said to be the seat of a Kurdish rebellion against the government and was the target of a 1988 chemical attack in which 5,000 residents allegedly died.
• Judge Abdel Rahman was at one time the president of a “Halabja victims society” [sic].
• In the 1980s, Judge Abdel Rahman was detained and tortured by Saddam security forces.^[10]

The defense team has boycotted the proceedings since January 29, 2006, and claims that they have been denied access to their client by the court since early February.^[11]

The high criminal court has characterized the situation differently. Chief Prosecutor Jaafar al‑Mousawi has been quoted as saying that, “My door is open. The lawyers can submit a request to resume their defense and meet with their clients. The court's decision on such requests, even if sent by e-mail, will be positive."^[12]

Saddam Hussein and other defendants face possible death sentences if they are convicted on the charges before this court.

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[1] Lawyers Demand Disqualification of Saddam Hussein Judge, AFP [hereinafter AFP], Feb. 23, 2006.
[2] Jeannie Shawl, Saddam Defense Seeks Disqualification of Presiding Judge, Jurist, Feb. 23, 2006.
[3] AFP, supra note 1.
[4] Id.
[5] Statute of the Iraqi Higher Criminal Court, Art. 5(1).
[6] Iraqi Special Tribunal Rules of Procedure and Evidence, Rule 11.
[7] Statement by Luis Moreno-Ocampo to the Fourth Session of the Assembly of States Parties, Nov. 28, 2005.
[8] Rome Statute, Art. 36(3)(a) and Art. 41(2)(a).
[9] International Criminal Court Rules of Procedure and Evidence, Rule 34.
[10] Saddam Lawyers Demand Judge Be Disqualified, AFP, Feb. 24, 2006.
[11] The New Chief Judge in the Saddam Trial, Associated Press, Jan. 29, 20006. See also Katerina Ossenova, Saddam Lawyers Claim Access to Lawyers Denied, Jurist, Feb. 5, 2006.
[12] Saddam's Lawyers Say Iraq's Shiite Leaders Have Fixed Trial, Call for Court-Appointed Defense Lawyers to Quit, Associated Press, date of posting unavailable.