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IRAQ: Saddam Hussein on Trial

Author: Sharon Otterman
December 17, 2003

What are the plans to try Saddam Hussein?

President Bush says the United States will "work with Iraqis to develop a way to try him that will withstand international scrutiny." Senior U.S. officials say the trial on charges of genocide and war crimes will most likely take place before an Iraqi Special Tribunal created December 10 by the U.S.-appointed Iraqi Governing Council (IGC). L. Paul Bremer III, the head of the Coalition Provisional Authority, has already signed off on the new court. Some critics, however, say they think Saddam Hussein should be brought before an international tribunal.

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How would an Iraqi prosecution proceed?

Because Iraqi law is based on the French civil law system, the trial will resemble a murder trial in France, says Judge Stephen M.Orlofsky, a retired U.S. District Court judge in Camden, N.J., who traveled to Iraq in May on a U.S. Department of Justice mission to assess the Iraqi court system. Investigative judges, instead of federal prosecutors, will collect evidence against the accused. That evidence will then be handed off to prosecutors and defense attorneys, who will present their case to a panel of five tribunal judges. A simple majority of the judges must agree on the final ruling. The accused can appeal his case to a nine-member Appeals Chamber.

Will there be international participation?

Yes. While Iraqis will clearly play the leading role, "there's lots of flexibility built into the statute--;the court can be as international as we want it to be," says Ruth Wedgwood, a professor of international law at Johns Hopkins School of Advanced International Studies who favors the Iraqi court. The tribunal judges, investigative judges, and prosecutors should all be Iraqis, but the IGC can make exceptions. Judges and lawyers from outside Iraq will serve as observers and advisers "to provide assistance to the judges with respect to international law" and make sure the trial is conducted in accordance with "general due process of law standards," the law states. Saddam Hussein or other suspects could have non-Iraqi lawyers, but their principal lawyers must be Iraqi.

Who would choose the judges?

The 24-member governing council. But because the IGC has no authority independent from the U.S.-led occupation authorities, the United States will likely have significant influence over the process. "We are going to try to meddle," says Noah Feldman, a New York University law professor who has served as a legal adviser in Iraq. The United States can use its authority to insure that the Iraqis include international jurists and advisers, Feldman says. The law also states that judges must have a "high moral character, impartiality, and integrity"; no former members of Saddam Hussein's Baath Party will be considered.

Will this Iraqi-led process guarantee a fair trial?

This is a matter of debate. U.S. officials say that it will, and President Bush has said that Iraqis are "capable of conducting the trial themselves." In addition, many experts say the tribunal conforms with international standards of justice. But some human rights groups have said the tribunal is flawed and that Iraqis lack the experience and know-how to run the court.

What are the alternatives?

Some critics suggest modeling the prosecution of Saddam Hussein on the U.N.-sponsored war crimes tribunal established in Sierra Leone after that country's civil war. "Iraq has no experience with trials lasting more than a few days," says Kenneth Roth, the executive director of Human Rights Watch. "International expertise in prosecuting genocide, war crimes, and crimes against humanity cases must be utilized to ensure a fair and effective trial."

What are the arguments for an Iraqi court?

Supporters say that because Saddam's greatest crimes were against the Iraqi people, they should have a right to try him. "The condemnation of Saddam's rule is something that Iraqis need to see at close range, not through a process distantly administered by members of the United Nations Security Council," Wedgwood wrote in a December 16 Wall Street Journal op-ed. Other proponents of the Iraqi court point out that it contains significant protections for the accused, including the right to remain silent, the right to a speedy trial, the right to a lawyer, and the right to an appeal. "I think it complies with international standards. In many ways it mirrors the protections in our Bill of Rights," Orlofsky says.

What do the Iraqi people want?

There seems to be widespread sentiment in favor of a trial in Iraq. Orlofsky, a supporter of the Iraqi court, said that while he was in Iraq, he spoke with 35 local judges and more than 150 lawyers. "Every one of them said that if Saddam were captured, he should be tried in Iraq. They were intelligent, well-educated, capable people. The suggestion that the Iraqis are not sophisticated enough to conduct this trial is arrogant and not supported by the facts," he says.

What are the arguments against the court?

Some international lawyers are concerned that the court will lack legitimacy because its judges will be selected by an Iraqi body hand-picked by the United States. "It runs the risk of becoming a marionette court for the United States," said Richard Dicker, director of the international justice program at Human Rights Watch. Dicker's organization also believes that the tribunal lacks sufficient protections for the accused, such as the requirement to prove "guilt beyond a reasonable doubt."

Some foreign governments and lawyers--as well as U.N. Secretary General Kofi Annan--oppose the tribunal's ability to impose the death penalty, a punishment that has been outlawed by most European countries and is not permitted in U.N.-sponsored tribunals. In addition, some governments say that a U.S.-influenced court will not sufficiently examine the role that Western governments, including the United States, played in supporting Saddam Hussein in the 1980s when some of his worst abuses were committed. Abdollah Ramazanzadeh, an Iranian government spokesman, told reporters recently that an international or Tehran-based trial is required to hold Saddam to account for the eight-year Iran-Iraq war and "determine who equipped this dictator to disrupt our region and impose three big crises."

Could Saddam Hussein face more than one trial?

Yes, international lawyers say. Just as in the United States, where a criminal can be tried for different offenses in separate jurisdictions, he could face additional trials in countries that accuse him of war crimes against their people. This includes Kuwait, Iran, and the United States. The likelihood of these secondary trials occurring remains unknown. Given that the Iraqi court is permitted to impose the death penalty, additional trials may be unrealistic.

What specific charges could be brought before the court?

The court would cover four types of crimes:

  • Genocide
  • Crimes against humanity
  • War crimes
  • Violations of specific Iraqi laws, including: the attempt to manipulate judges, the squandering of public assests and funds, and "the threat of war or use of the armed forces of Iraq against an Arab country"--a crime in Iraq since 1958.
What time period does the law cover?

From July 17, 1968--when a Baathist-led coup ousted Iraq's then-president, Major General Abd al-Rahman Muhammad Arif--to May 1, 2003, the date on which President Bush announced the end of major combat operations in Iraq.

How does the Iraqi tribunal define genocide?

It applies the same definition used by the 1948 Convention on the Prevention and Punishment of Genocide adopted by the United Nations after the mass killings of World War II. Genocide consists of acts--including murder, serious harm, starvation, and forced displacement--undertaken "with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group."

Which of Saddam Hussein's crimes could fit into this category?

Saddam Hussein's clearest act of genocide appears to have been the Anfal campaign against the Iraqi Kurds, which took place between 1987 and 1989. According to estimates from Human Rights Watch and other international groups, the brutal tactics used by the regime against the Kurdish people resulted in the deaths of some 100,000 civilians and the destruction of more than 4,000 villages. Chemical weapons were used to kill thousands, most notably in the Kurdish town of Halabja. More broadly, Saddam Hussein is believed to have ordered the forced expulsion of thousands of Kurds and other ethnic minorities from areas in northern Iraq during a widespread "Arabization" campaign.

What are crimes against humanity?

This is a broader category of crimes than that of genocide. It consists of the following acts "when committed as part of a widespread or systematic attack directed against any civilian population":

  • Murder
  • Extermination
  • Enslavement
  • Deportation
  • Torture
  • Rape and other sexual violence
  • Imprisonment in violation of international legal norms
  • Collective persecution of a political, racial, national, or other group
What acts of Saddam Hussein fit into this category?

His regime was known to employ murder, torture, and unlawful imprisonment as regular tactics to shore up its control. In addition to the acts of genocide listed above, the Baathists also conducted large-scale killings after the failed 1991 uprisings in the Kurdish north and Shiite south of Iraq, resulting in the deaths of thousands. Another brutal crime was the repression and destruction of the society of the so-called Marsh Arabs, who lived for centuries in Iraq's south. In total, an estimated 300,000 or more Iraqis are believed to have been unlawfully killed by Saddam Hussein's regime and buried in mass graves around the country, according to human rights groups.

What are war crimes?

The statute defines war crimes as "grave" violations of the 1949 Geneva Conventions, which spell out the rules of modern warfare. They include: the intentional attacking or bombarding of civilans; employing poison gases or weapons; denying a fair trial to a prisoner of war; torture, murder, and inhuman treatment of civilians and prisoners. Saddam Hussein's use of chemical weapons against the Iranians in the eight-year Iran-Iraq war would be a war crime under this definition.

Will the trial be open to the public?

Iraqi Governing Council members say yes, but security concerns in Baghdad, where the trial is scheduled to be held, may restrict access. Iraqi leaders have also said they would like the trial to be televised so all Iraqis can watch it.

When will the trial occur?

It's not clear. Some IGC members are pressing for the tribunal to get under way by next spring, arguing that a speedy trial will help Iraq close the book on Saddam Hussein's rule. But this may conflict with American plans to interrogate Saddam Hussein at length. Iraqis also need to construct a secure detention facility for the captured dictator, hire judges and prosecutors, and gather evidence. To streamline this process, prosecutors may focus on a dozen of the most significant atrocities committed while Saddam Hussein was president, said Salem Chalabi, one of the architects of the tribunal, in an interview with The Washington Post.

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