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.

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

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