Can Saddam Hussein Get A Fair Trial?

By Peter Ford, Christian Science Monitor. Posted October 19, 2005.

When the curtain goes up on Saddam Hussein's first trial today, the audience will stretch far beyond the Baghdad courtroom where the former Iraqi president is on trial for his life.

Advocates of international justice, anxious to spread the law's reach to dictators everywhere, will be watching to see how the Iraqi Special Tribunal copes as judges try the gravest crimes in the world's statute books. "This is one of the most important trials of our lifetimes," says Michael Scharf, a law professor at Case Western University in Cleveland, because of "the number of victims ... the status of the defendant ... and the fact that the whole world went to war against this man in 1991."

The way the trial has been organized, however, has divided international justice experts. Some of them say Mr. Hussein should have been brought before an international tribunal, such as the panels that judged Nazi leaders at Nuremburg, or the Rwandan Hutu officials charged with genocide, rather than a domestic Iraqi court.

"Since some of the crimes he is accused of are crimes under international law," such as crimes against humanity and genocide, says Geoffrey Robertson, a British lawyer, "it would be better for a proper international court to be set up."

Since Nuremburg, several such courts have furthered the idea that crimes against humanity require judgment in courts with broader authority than national tribunals.

Hussein's trial "is a departure from the main current of trials of senior officials in post-conflict situations" such as Rwanda, Sierra Leone, or the former Yugoslavia, adds Richard Dicker, head of the International Justice department of Human Rights Watch in New York. "That's a bad thing," he argues. "These are extremely difficult trials to do in the best of circumstances. They put an enormous strain on just developed or newly restored judicial systems" after wars.

Other observers are more sanguine. "International courts are not a preferred option, but limited to cases where national justice is not available," says Adam Roberts, professor of law at Oxford University. "In this case there seems sufficient reason to think that a national court can handle the matter."

"One wants to engage the local judiciary and the local population," adds Cherif Bassiouni, a professor of law at DePaul University, who drafted the special tribunal's statute. "It is important that any kind of post-conflict justice be owned by the people affected."

Overwhelming evidence

The first case brought against Hussein concerns Dujail, a village north of Baghdad where security forces are alleged to have killed at least 140 people after a failed attempt there on the president's life in 1982. It is a relatively simple case, and "the evidence is so overwhelming that people will say it is a fair verdict" even if the trial itself is not a model of judicial efficacy and fairness, says Professor Scharf, who helped train some of the judges and prosecutors involved in the case.

But later, Hussein and other former Iraqi leaders are expected to face charges relating to the use of poison gas against Kurdish towns and villages - considerably more complex cases that may amount to genocide. "That is the crime that the international community requires should be tried, and the allegations are of such wickedness that they should be tried by a proper international court" to guarantee the trial's fairness and credibility, argues Mr. Robertson, who sits with Sierra Leonean and foreign judges on a United Nations war crimes tribunal. "This is a missed opportunity."

Some critics of the Iraqi tribunal (including Hussein's lawyers) argue that it is not legitimate because it derives from an invasion of Iraq that was illegal in the first place. But even opponents of the former Iraqi regime, who have been trying to put Hussein on trial for many years, are disappointed by the way he is being brought to justice now.

Though the Iraqi tribunal's statutes and rules closely follow those of the fledgling International Criminal Court, and precedent at Rwandan and Yugoslav war crimes tribunals will guide the Iraqi court, "it will inevitably be a victors' trial" worries Chibli Mallat, a founder of Indict, an organization that unsuccessfully badgered the international community for years to indict Hussein for his crimes even while he was in office.

"Victors' trials are never of the standard they would have been if a special court had been set up before," Professor Mallat adds. "This is not at all the ambition we had hoped for."

Mallat would have preferred to see a mixed court, like the Sierra Leone tribunal, outside Iraq for security reasons. All the judges hearing cases against former regime leaders have moved to temporary housing in the US-secured Green Zone in central Baghdad, and their families may have to follow them. It is unclear whether all the judges will allow themselves to be identified.

In the current atmosphere of lawlessness, everybody involved in the Hussein trial - judges and prosecutors, defense counsel and witnesses - is liable to attract death threats from one quarter or another of Iraq's political scene. "Judges have been assassinated in much less sensitive cases than this," Mallat points out. "It is a bizarre and cruel trial, taking place in the midst of a civil war when one of the main protagonists in the war is the accused."

The Iraqi authorities hope that the trial itself, by publicizing the extent of the former regime's cruelty and bringing perpetrators to justice, might also bring an element of political stability.

Holding it in Baghdad, rather than abroad, "makes the process that much more accessible to both the victims and to those in whose name the crimes were committed," says Mr. Dicker. "There is a value to the trial taking place close to where the crimes occurred," he says, despite security risks.

International standards

Nonetheless, Dicker worries that the trial may not measure up to international standards. Hussein and other defendants have been able to see their defense counsel only when they have been interrogated by an investigating magistrate, for example, which human rights activists say is too late. And the tribunal's statute requires only that judges be "satisfied" of a defendant's guilt to convict, not "satisfied beyond reasonable doubt." "This is a disturbingly low threshold," says Dicker. "It's a real anomaly that reflects Iraqi law but not developing international law."

Hussein's judges will certainly be familiar with the provisions of international war crimes law: they have been trained by independent foreign experts hired by the US Justice Department, which also arranged for the translation into Arabic of portions of the Nuremburg, Rwanda, and Yugoslavia hearings.

The Iraqi government has not, however, made use of one of the Iraqi tribunal statute's provisions, which allows for foreign judges. Its insistence on keeping the death penalty has also prevented European nations - which have outlawed such punishment - and the United Nations, from playing any significant role in the investigation or prosecution of regime crimes.

That disappoints Scharf. "The Iraqis are saying that this is our court, the atrocities were committed against our people, and we have always had the death penalty," he explains.

"This is the trial that is going to happen," he adds. "Do we want to help make it the best trial possible or do we ignore or oppose it?"

Whatever the outcomes of the forthcoming trials, says Bassiouni, they will add a few bricks to the rising edifice of international justice just by happening. "International justice is made not only by international tribunals but domestic ones too," he says. "What's important is that the crimes be prosecuted. It is accountability that counts."

Peter Ford is a staff writer for The Christian Science Monitor.

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