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IRAQ: Saddam's Trial

Author: Lionel Beehner
March 14, 2006

What are the specific charges against Saddam Hussein?

The first case to be brought against Saddam Hussein at the Iraqi Special Tribunal involves his role in the 1982 execution of 148 Iraqi civilians in Dujail, a predominantly Shiite town north of Baghdad. Saddam is charged with ordering the executions following a failed assassination attempt. Several of his top deputies have also been charged in the massacre. Among other charges, Saddam stands accused of ordering the slaughter of some 5,000 Kurds with chemical gas in Halabja in 1988, killing or deporting more than 10,000 members of the Kurdish Barzani tribe in the 1980s, and invading Kuwait in 1990. He could face the death penalty if convicted.

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Who else is being charged by the court?

In addition to Saddam, eleven high-ranking Iraqi officials have been indicted or are awaiting indictment, including Abid Hamid al-Tikriti, a former presidential secretary, Ali Hassan al-Majid (“Chemical Ali”), Saddam’s cousin and adviser, and Tariq Aziz, the former deputy prime minister. It’s not clear how many individuals or cases will be tried by the court in total. Several Iraqi war-crimes suspects remain at large, experts say. 

Under which body of laws will they be tried?

A combination of international and Iraqi national law that existed prior to Saddam’s ascension to power, legal experts say. One source of law is the 1971 Iraqi Criminal Procedure Code, which some experts say is an outmoded legal code that requires little burden of proof and makes convictions too easily obtainable. There was some early speculation that Saddam might be tried under sharia, or traditional Islamic law, which has not been officially applied in Iraq since 1925. Most legal experts, however, say this is unlikely and would be a mistake. “It’d be an ad hoc creation,” says Neil Hicks, director of international programs at Human Rights First, formerly the Lawyers Committee for Human Rights. “You’d be sort of inventing law to try a certain set of detainees, and your interpretation of sharia would have to be written in the form of a modern penal code.”

What is the jurisdiction of the tribunal?

The IST has jurisdiction over crimes committed in Iraq or abroad (e.g., in Iran or Kuwait ) between 1968 and 2003 by former regime members. Unlike previous ad hoc tribunals—temporary courts set up to try suspected war criminals—the IST is not under the auspices of the United Nations but run instead by Iraqis, with U.S. support. There is also no clear timeline for the court’s termination. “I don’t think there is a judge in the world who could predict when it will be finished,” said Raid Juhi, the tribunal’s chief judge, in a Washington Post interview March 22. Some legal experts say the case against Saddam could wrap up as soon as early next year.

What is the makeup of Saddam’s legal team?

In mid-August, Saddam Hussein’s family dismissed his Jordan-based legal team, which consisted of some 1,500 mainly Arab volunteers and approximately twenty-two legal specialists from countries including the United States, France, Iraq, and Libya. Among them were Aicha Muammar Qaddafi, daughter of Libyan leader Muammar Qaddafi, and Ramsey Clark, a former U.S. attorney general. The family was unspecific about the reasons for their dismissal but hinted they were upset that Arab and Western members of his legal team had leaked information to media outlets and spoken on Saddam’s behalf. Saddam has since been represented by Khalil Dulaimi, an Iraqi lawyer. Two lawyers representing Saddam's codefendants were killed in November 2005, prompting criticisms that administrators were not providing adequate security.

Has the tribunal’s legitimacy been challenged?

Yes. Saddam’s defense team refuses to recognize the court’s legitimacy based on a provision in the Geneva Conventions that they argue prohibits occupying forces from establishing judicial systems in another country. M. Cherif Bassiouni, a professor of law at DePaul University’s Human Rights Law Institute, says the tribunal lacks legitimacy because its statutes were passed by L. Paul Bremer’s U.S. Coalition Provisional Authority, whose occupation of Iraq technically ended June 30, 2004. Under international law, he says, “the powers of an occupying force end at the time the occupation ends.” Bassiouni, who directed a project in Iraq to restructure the country’s legal education, suggests Iraq’s parliament pass a new law that confers legitimacy to the tribunal.

Who are the judges on the tribunal?

The Iraqi Special Tribunal comprises roughly sixty-five judges, native Iraqis mostly of Shiite or Sunni ethnic origin, who will independently investigate each case and prepare indictments. Each judge is nominated and vetted by the Iraqi Governing Council. Five judges preside over each trial with no juries present. Concerns over the safety of judges persist; a judge and a lawyer were slain in March 2005, and two lawyers for Saddam's codefendants were killed in November of that same year. The chief judge in Saddam's case, Rizgar Mohammed Amin, resigned in January 2006 amid criticism that he had been too lenient in allowing Saddam to speak out of turn and question the court's legitimacy. A Kurdish judge, Raouf Abdul Rahman, was named interim chief judge after another candidate, Saeed Hamashi, was accused of having ties to Saddam's Baathist party.

What else is controversial about the court?

Human-rights advocates have accused the court of not upholding international legal standards of due process or sufficiently protecting the rights of the accused by not allowing sufficient access to legal counsel. Some international legal experts would have preferred a so-called mixed tribunal, similar to the court set up to try crimes against humanity in Sierra Leone. That court was co-established by the United Nations, includes both local and international judges, and operates under both domestic and international law; the IST allows non-Iraqis only to serve as advisers or observers. In contrast, “you have this chicken and egg role in Iraq,” Hicks says. “The United Nations hasn’t played a role because of a lack of safeguards, and it’s opposed to the death penalty.” The court is criticized for its acceptance of capital punishment by Amnesty International and other human-rights groups.

Will the trial be open and fair?

It’s unclear, experts say. On one hand, the trial is accessible to the Iraqi press, held in Arabic—Iraq’s lingua franca—and expected to be partially broadcast on Iraqi television to ensure openness. Its judges and lawyers will also have been trained by U.S. legal experts in human-rights law, and international monitors will be in the courtroom. “This is not going to be a political trial,” assured Mouwafak al-Rubaie, Iraq’s national-security adviser, in a July 31 interview with CNN.

On the other hand, some human-rights lawyers have charged that the IST does not offer sufficient protections for the accused, nor does it uphold Article 14 of the International Covenant on Civil and Political Rights, which guarantees a defendant’s right to a “competent, independent, and impartial tribunal.” Hicks accuses the court of holding detainees for months without access to legal counsel. Others say IST’s procedures are in violation of international law, including the court’s lack of requirement for proof beyond a reasonable doubt (judges must merely be “satisfied” of guilt) and its allowance of trials in absentia.

Then there are those who say that recent inflammatory statements made by Iraqi leaders have compromised the tribunal’s ability to be fair and impartial, particularly Iraqi President Jalal Talabani’s comments last month that “Saddam deserves a death sentence twenty times a day.”

What is the U.S. role in the trial?

The tribunal, whose costs are covered by the new government of Iraq, was originally established with the help of around $75 million in U.S. funds. The United States also supplies the court with legal experts and training. Some critics, however, accuse the tribunal of adopting too many traits of the U.S. justice system, including the proposed use of plea bargains, which are viewed in most parts of the world as an Anglo-Saxon style of adversarial criminal justice. Others say the tribunal is too beholden to U.S. interests to be truly impartial and fair. For instance, in a March 12 article in The Nation, Ari Berman, Ralph Shikes fellow at the Public Concern Foundation, questions whether the court would be willing to call U.S. Defense Secretary Donald Rumsfeld to testify about his meetings with Saddam in 1983 and 1984.

Why has the tribunal taken two years to get off the ground?

The prosecution has spent the bulk of its time trolling through an estimated two tons of data from over two million documents, collecting information from some 7,000 witnesses, and reading reports by forensic experts from roughly 200 mass graves throughout Iraq. "It's not as easy as trying someone who simply pulled a trigger," says Nathan Brown, senior associate at the Carnegie Endowment for International Peace, pointing to the difficulty of proving that atrocities committed were under Saddam's direct authority. The tribunal, originally slated to begin operation in 2006, has accelerated its timetable under pressure by the U.S. government to help combat the growing insurgency, and, as Brown points out, "to show the Iraqi government is able to get something done." Some critics of the court have accused the U.S. government of accelerating the tribunal’s timeline to fit its own domestic political calendar.  

How is the trial expected to affect most Iraqis?

Most Iraqis, particularly Kurds and Shiites victimized under the former regime, want to see justice served and crimes punished. Experts say the trial will provide some form of closure to a grim and gruesome chapter of Iraq's history. Others, however, warn that the trial could further inflame the pro-Saddam and ex-Baathist elements of the Sunni insurgency.

Unlike past war-crimes tribunals, legal experts expect a speedy trial and a swift death sentence. “It’s going to be a pro-forma trial for public consumption,” Bassiouni says. “Everyone’s convinced he should be hanged high and dry, but they need to put on some sort of show.” Another problem, Bassiouni points out, is most Iraqis still have little knowledge about the workings of the tribunal; he favors establishing a “public information campaign” or “Iraqi truth commission,” not unlike South Africa’s, “to teach generations of Iraqis about the horrors of the past.”

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