Michael J. Kelly [Creighton University School of Law]: "Each new session of the Iraqi High Criminal Court, convened last year to try Saddam Hussein and his henchmen for the massacre of over a hundred Shi'a at Dujail in 1982, brings with it further evidence that the tribunal may simply not have the capacity to bring off a successful prosecution. Saddam's courtroom antics, have thrown the court into disarray - insulting judges, defiantly proclaiming the court's illegitimacy, refusing to cooperate procedurally, walking out of the courtroom, boycotting trial sessions, and speaking over the heads of judges to score political points with Iraqis.
These are not new issues for those attempting to bring former despots to justice. Indeed Slobodan Milosevic has engaged in such drama on a regular basis over the course of his four-year trial in The Hague before the war crimes tribunal there, and Hermann Goering, the former Nazi second-in-command, famously got the better of his prosecutors at Nuremberg on occassion. But those tribunals were staffed with rather sophisticated international lawyers. The Iraqi tribunal is staffed with well-meaning, but lower level judges who survived the de-Ba'athification process during the U.S. occupation. Their capacity to understand the intricacies of concepts like war crimes, crimes against humanity and genocide were always in question - despite rigorous training by well-qualified experts in the field like Michael Scharf (Case Western) and assistance from international legal experts. Now their capacity to control cagey defendants and move the trial along smoothly is equally in question.
Chief judge Amin resigned this month in direct response to criticism both from the public, press and Iraqi government over the chaotic situation in the courtroom and his inability to bring it under control. Even the appointment of Amin's successor was bungled, initially going to judge al-Hammash - until his Ba'athist connections became known, and then finally going to judge Abdel-Rhaman, a Kurd. The court's inability to function has, unfortunately, played out in a public way, thereby undermining its legitimacy even further in the eyes of Iraqis and the international community. One wonders if it can possibly recover. Perhaps an international tribunal for Saddam and his gang would have been a better option?"