Judgment at Baghdad

By Ari Berman, The Nation. Posted March 12, 2005.

Everyone agrees that Saddam Hussein and his henchmen, if tried properly, should be found guilty of crimes against humanity. But a long list of human rights groups and international law experts doubt if the tyrant and his deputies will receive the due process and fair trials promised by U.S. and Iraqi authorities.

Legal observers are "concerned about the decision to use the death penalty, unclear rules of evidence and what they see as the accused's inadequate access to their lawyers," the Los Angeles Times wrote on Sunday. "They also see an overall lack of transparency in the proceedings and question whether the Iraqi judges have the expertise to handle such far-reaching cases." Last week insurgents assassinated a judge and lawyer for the special tribunal a day after the first charges were announced.

The first defendants will be five of Saddam's lieutenants, most notably his half-brother Barzan and Vice President Taha Yassin Ramadan, both implicated in a series of mass killings in 1982. Future defendants include Saddam's notorious cousin, Ali Hassan Majid, aka Chemical Ali, and the former defense minister. The tribunal will use these cases to build a paper trail against the leader himself, who likely won't be tried until next year.

Unlike the four international war crimes tribunals currently run by the UN in the former Yugoslavia, Kosovo, Sierra Leone and Rwanda, Saddam's trial will be administered by Iraqis and supervised by America. Paul Bremer created the Iraqi Special Tribunal in December 2003, naming Salem Chalabi, Ahmad's nephew, as special prosecutor. Interim Prime Minister Iyad Allawi eventually pushed Chalabi aside by stacking the court with hand-picked loyalists. The names of the tribunal's 35 judges and 400 staff members have been shielded for security reasons, only increasing skepticism.

Then there's the question of U.S. complicity. The American government supplied Saddam with landmines for his war against Iran, and American companies, with the government's approval, sold the chemical agents used against Iranian troops and Iraq's own Kurdish population. A trial under American occupation likely won't force Donald Rumsfeld to describe his meetings with Saddam in 1983 and 1984, after the U.S. knew he was deploying chemical weapons. Or ask George Bush I why he issued a national security directive in October 1989 calling for normal diplomatic relations between the U.S. and Iraq. Or why Colin Powell and Dick Cheney encouraged the Kurds in the North and Shiites in the South to revolt, and then did nothing when Saddam brutally suppressed the uprisings, leading to thousands of mass graves.

Ari Berman writes The Nation's "Daily Outrage" weblog. He is a Ralph Shikes Fellow at the Public Concern Foundation.

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