Experts Put Hussein’s Trial On Trial
The image of Saddam Hussein in a defendant’s chair promises to be the ultimate in international legal theater. But experts say the success of his trial will depend on convincing the world and the people of Iraq that it is more than a show.
“If the Iraqis are going to try him, it should be the Iraqis who are going to try him and not the Americans pulling the strings from the back,” said Robert F. Turner, associate director of the Center for National Security Law at the University of Virginia.
The U.S. transferred official custody of Hussein to Iraqi authority Wednesday. The former Iraqi leader and other top members of the regime are expected to be arraigned today in Baghdad. But Americans will continue to guard Hussein and play a major role in his trial.
Experts have criticized the American role in the trial – with many favoring more international involvement.
In May, Florida lawyer Greg Kehoe left to direct a 50-member team of American and other foreign advisors who will help gather evidence and train Iraqi judges and lawyers. In April, the U.S.-appointed Iraqi Governing Council chose an Iraqi exile, Salem Chalabi, to lead the tribunal.
The names of seven judges and five prosecutors chosen by the council will not be released until the trial draws near, in an effort to guard their safety.
MAY TAKE A WHILE
No time has been set for the trial – which will be heard by a panel of judges rather than a jury – and it may take a while. Chalabi has said that top Hussein lieutenant Ali Hassan al Majid, known as “Chemical Ali” for his role in chemical attacks on the Kurds in the 1980s, may be tried before Hussein. Other regime members may also be tried before Hussein.
The U.S. has budgeted $75 million for the tribunal. Investigators must track the identities and manner of death of those buried in mass graves.
“There are at least 300,000 bodies that need to be exhumed,” said Kehoe, a longtime federal prosecutor, during an interview in May in his Tampa office.
Kehoe was present Wednesday when Hussein was officially turned over to Iraqis, according to Larry Dougherty, an investigator in his law firm who spoke with him afterward. Dougherty said Kehoe described Hussein afterward as “a defendant stripped of all the trappings of wealth and power,” no longer able to instill fear.
Kehoe said in May that investigators will not need to recover all the bodies as evidence. They will use DNA, identification cards and style of dress to prove ethnic heritage of Kurds, Kuwaitis and other groups buried in mass graves. They’ll check for bullets in the back of the head and other signs of execution. They’ll examine extensive records and try to determine what may be missing.
Kehoe, who spent four years in The Hague prosecuting a former Yugoslav general, said 1.3 million to 1.4 million people remain missing from the Iran-Iraq war in the 1980s.
At the conclusion of other wars, countries exchange death lists in dictionary-like volumes. This war had no death list, so the missing may be dead, captured or out of the country of their own accord. Kehoe said decisions on where to collect evidence will depend on security because lawyers will not go where fighting is active.
IRAQIS `IN CHARGE’
Kehoe and other Americans will advise, but he emphasized that Iraqis “are in charge.” Iraqi leadership is still just a few days old and any changes in the public perception of the fledgling government will certainly affect the perception of the tribunal.
The statutes defining how the trials will proceed were drafted in December by the former Iraqi Governing Council, hand-picked by the United States.
The statutes offer broad authority to prosecute crimes by Iraqis against each other and against other nations since Hussein took power in 1968. They combine elements of Iraqi law – which allows the death penalty – and international courts. The tribunals will be divided into chambers, each with five judges who determine guilt or innocence, as well as investigative judges who prepare cases, defense attorneys and prosecutors.
Chalabi was educated in the United States. His uncle, Ahmad Chalabi, led a vocal exile group, the Iraqi National Congress, that provided faulty information used to build the prewar case that Iraq had an advanced weapons program. The uncle’s relationship with American authorities has since grown contentious.
“This looks like nepotism run amok,” said Barry Carter, a Georgetown University expert on international law.
Many in the human rights community advocated an international tribunal, based partly on temporary courts established to try former Rwandan and Yugoslav leaders, or a hybrid system now being used in Sierra Leone. They pointed to a lack of Iraqi experience in complex cases and democracy, as well as the nation’s political volatility.
“We are concerned that a U.S.-supported trial won’t have proper legitimacy in today’s Iraq, ” said Richard Dicker, director of the international justice program for Human Rights Watch.
Dicker has been chronicling Iraq’s crimes against humanity for more than a decade. In 1992, he spent six months in northern Iraq documenting the 1988 genocide of 100,000 Kurds. He’s long advocated war crimes proceedings against Hussein, but believes the current formula is a wasted opportunity to bring the rule of law to Iraq.
He believes a trial on Iraqi soil should include an international group of experienced lawyers and judges blended with Iraqis. That is the formula for an ongoing tribunal in Freetown, Sierre Leone, where millions were driven from their homes.
Dicker criticizes the selection of Chalabi as general director of the tribunal because his family has a well-known political stake in Iraq’s occupation and rebuilding.
“I don’t think a tribunal based on investigations done by the occupying authority that has deliberately avoided international participation is going to muster the necessary impartiality for effective, credible prosecutions,” he said.
Benjamin Ferencz, who prosecuted Nazis at the Nuremberg war crimes trials, believes the system can work. But the trials must not be allowed to drag on and they must be recognized as legitimate, he said. Judges should set time limits for both the prosecution and the defense.
“They should not, in my opinion, try him on every crime that has ever been done. That would take too long,” he said.
Yugoslav president Slobodan Milosevic remains on trial in The Hague on 60 counts of war crimes and crimes against humanity for wars in Bosnia, Croatia and Kosovo. His trial began in 2002 and the international community has begun to lose interest. Milosevic has used the dragged-out proceedings to broadcast his own message and attempt to embarrass his political enemies.
Hussein, a former American ally, will likely try to do the same, pointing to American cooperation during the Iran-Iraq war and possible covert actions.
If successful, a fair and open trial against Hussein can bolster the political case for war and help democracy. But for the same reasons, failure will provide plenty of fodder for critics around the world.
“Every day is another opportunity to ruin your credibility, so you need to be extremely careful with that,” said Brian Concannon, an American human rights lawyer who worked in Haiti from 1995 until February.
Concannon, who helped train Haitian lawyers for the trial of 53 people accused of a 1994 massacre of dozens of supporters of Jean-Bertrand Aristide, said Iraq’s ancient ethnic divisions exacerbate the situation: “Iraq is a thousand times more volatile than Haiti, so all of this is going to be much more difficult.”
The Story So Far
Saddam Hussein has been in U.S. custody since Dec. 13, when he was captured by American troops. The new Iraqi government officially took custody of Hussein Wednesday, though Americans will continue to guard him.
Hussein and other members of his regime will be charged in front of a judge today. A trial – combining legal aspects of Iraqi and international law – could be months away. After he is charged, Hussein will have the right to a lawyer for the first time since his capture.
By Noah Bierman
Published: Thursday, July 1, 2004