The trial blazers

The capture of Saddam Hussein has sparked a war of words over the best method to try him for his crimes against humanity. Jon Robins investigates the conflicting viewpoints

What are the prospects of Saddam Hussein receiving a fair trial before an Iraqi court? It was by a striking coincidence that the Ace of Spades in the coalitions pack of cards was hauled out of his hole and into captivity only a couple of days after the Iraqi Governing Council unveiled a statute establishing a court to try the despot. But according to human rights campaigners and international lawyers, the powers that be in Baghdad did not get off to a great start last month.

Of course, the stakes are enormous for the Iraqi Special Tribunal for Crimes against Humanity (IST), as the court is known. In the words of the pressure group Human Rights Watch (HRW), the fairness of the tribunal will determine whether his prosecution advances the rule of law in Iraq or perpetuates a system of arbitrary revenge.

So what does HRW make of the plans for the tribunal? According to the group, the tribunal, as proposed, reflects less a determination to see justice done, and more a fear of bucking Washingtons ideological jihad against the international justice movement.

Back in early April, even before Saddam fled from Baghdad, the US government announced that its objective was to create an Iraq-led, US-supported tribunal, and this is, I believe, what we have here, comments Richard Dicker, HRWs international justice director. The outcome was pre-cooked and came after a very secretive and closed process.

Dicker, like many other human rights campaigners, is calling for a mixed domestic-international court with personnel selected by the UN rather than Washingtons surrogates, and drawing on a global pool of talent, as opposed to relying on local lawyers.

However, the arguments of the internationalists are weighed against those of the unilateralists, who back an Iraqi court. They look to the trial of that other infamous dictator Slobodan Milosevic in The Hague and want to prevent Saddams trial becoming a political show trial.

Michael Scharf, a former US State Department official who has written extensively about the UNs International Tribunal for the Former Yugoslavia, recently argued that the judges should keep tight reins on the Saddam prosecution, not allowing him to represent himself, nor permit proceedings to be televised gavel to gavel. Polls show that, as the trial unfolds, more and more Serbs are convinced that Milosevic is innocent and the trial is an illegitimate political victors justice court, Scharf recently stated. Saddam could potentially do the same thing if hes allowed to represent himself and the trial is televised day after day. It will be the Iraqi version of The Jerry Springer Show.

The Iraqi Governing Council has published a statute establishing a tribunal to try genocide, war crimes and crimes against humanity. It sets out the rights of the accused and applies definitions of international crimes that are largely consistent with international law, but nevertheless there is considerable unease.

Proponents of international law are adamant that any Iraqi court should learn from the experiences of the plethora of existing tribunals. According to Philippe Sands QC, professor of law at University College London and a tenant at Matrix Chambers, who is a specialist in international law, there are three options for any such tribunal: there is the national option, as used with mixed results in Rwanda and the former Yugoslavia; the internationalised route, featuring a mixed criminal court of Iraqi and other judges applying Iraqi law and international law (the chosen option for Kosovo and East Timor); and the fully-fledged international court (or the Nuremberg option).

The problem of the first option is that there has to be real doubt about the ability of Iraq to mount a criminal procedure of this kind, and provide for independent judges who arent in some way tainted by anything thats happened in the last 30 years. Thats going to be pretty tough, comments Sands.

Professor Christopher Greenwood QC, Essex Court Chambers tenant and professor of international law at the London School of Economics, who advised the Attorney-General on the legality of invading Iraq, sees a paradox in the position of those commentators that have been vociferous backers of an early return to Iraqi sovereignty but are now unwilling to see this element of sovereignty return. Its patronising for lawyers in the rest of the world to leap to the conclusion that the Iraqis are incapable of staging a fair trial,

he argues. While Greenwood acknowledges that there are serious problems (such as the experience of judges to try such matters), he thinks the most important consideration is that a state can exercise its own jurisdiction in such matters.

Sands takes issue with the Greenwood line. Its ironic, perhaps, to see that the author of a legal opinion justifying the use of force now takes the view that Iraqis can sort it out for themselves, he notes.

In fact, much of the Iraqi legislation has been lifted directly from established international law, such as the Rome Statute of the International Criminal Court. The definitions of genocide, crimes against humanity and war crimes are taken straight from that legislation.

The idea that the court will be applying Iraqi law is preposterous. Its applying as it is entitled to do international law in a domestic context; and so the argument that this is no longer an international concern is risible, Sands argues. After all, we went to war on the back of the argument that the events in Iraq over the last 20 years constituted a threat to international peace and security.

One option that is well and truly off the agenda is the International Criminal Court (ICC), which was only established in 2002. The new Hague-based court not only lacks jurisdiction due to Iraq not being a party to its statute, but the legislation precludes the ICC from exercising jurisdiction over crimes committed before it came into force.

But as Mark Ellis, the executive director of the International Bar Association (IBA), notes: This is exactly why the ICC was created: for a situation where the domestic legal system is not capable of undertaking a trial. And for political reasons its best to try an individual outside the country so that they have a fair trial. Under different circumstances, Id expect Saddam to be tried in that kind of tribunal.

Despite the enthusiasm of non-governmental organisations and governments on this side of the Atlantic, the US remains implacably opposed to the creation of an ICC.

Notwithstanding the cut and paste approach to international law, the rules of procedure will be based on Iraqs 1971 criminal procedure law. And that falls well short of international fair trial standards, reckons HRWs Dicker. For example, he points out that the criminal code allows for closed trials, has no requirement to prove guilt beyond reasonable doubt and permits confessions extracted through physical coercion to be relied on.

Most controversially, Iraqi law means that the former dictator could face the death penalty. The Coalition Provisional Authority itself has suspended the death penalty in Iraq, but its not clear whether it would continue this line and call on the Iraqi Governing Council not to use it, reports Mervat Rishmawi, Middle Eastern legal adviser at Amnesty International UK.

However, Amnesty is concerned that the occupying powers are now supporting or professing neutrality on the death penalty. George Bush has already called for Saddam to face ultimate justice for crimes against his own people, and support for capital punishment is strong on the ground in Iraq. Whether or not Saddam ends up receiving a lethal injection has a bearing on the mode of trial, as many of the backers of an international court would find it difficult to stomach any trial that could end with the death penalty.

Amnesty has a number of other concerns about the new statute, such as its silence on Iraqs obligations to various human rights statutes that it has previously signed up to for example, Article 6 of the International Covenant on Civil and Political Rights, which allows anyone sentenced to death the right to seek pardon or commutation of the sentence. The tribunal and the statute itself are going to determine the rule of law in Iraq and they simply cant afford to go wrong on this, emphasises Rishmawi.

Unfavourable comparisons have been drawn between the creation of the Iraqi tribunal and the mixed Special Court for Sierra Leone (SCSL), which is looking into violations of international human rights law committed in its horrific 10-year civil war. The SCSL was created by the joint agreement between the government of Sierra Leone and the UN, while the Iraqi Governing Council established the IST under an occupation and without the participation of the UN.

The SCSL is based on international participation where, for example, each trial court has two Sierra Leone judges plus one international judge and the appeals chamber is comprised of two home judges and three international ones. By contrast, the IST specifies that the judges and prosecutors will be Iraqi nationals. The only international participation envisaged in the Iraqi tribunal is through a last-minute redrafting, which allows for the appointment of non-Iraqi judges in advisory capacities or as observers, and then only if the Iraqi Governing Council permits such involvement.

Theres this rather strange and shadowy role for internationals in the statute, and its totally unclear how this might work in practice, comments Fiona McKay, director of the international justice programme at the New York-based Lawyers Committee for Human Rights. Theres been so much experience developed by the various tribunals over the last 10 years. Why keep reinventing the wheel?

Sands was recently appointed by the Sierra Leone court to advise on aspects of international law for the trial of the then-president Charles Taylor for his part in the conflict. He was impressed by the ability of local lawyers (really, seriously good, in his view), but also believes that the mixed model, within which they are supplemented by foreign lawyers, made it a much more resilient court. If you have a purely national system, he says, a court isnt going to be able to withstand domestic and political pressures to speed things up in a particular direction.

Unsurprisingly, Iraqi law and the legal profession suffered badly during the three decades of Saddams repression. Prior to the Baath Party coming to power in 1968, there was something of a golden period for Iraqs judiciary. The independence of judges, though, came to an abrupt end with the arrival of Saddam, and a system of security courts were created under the jurisdiction of the secret police for anti-state activities.

The majority of the judiciary was adversely compromised through the Baath Party and corruption, comments Ellis at the IBA. It manipulated and controlled the legal system to serve its own goals, and so its been in a state of chaos since then. But thats not to suggest there arent some very competent jurists. There are and Ive met them. However, Ellis goes on to say that even if judges, prosecutors and defence lawyers are available in sufficient numbers, he doubts whether they would be qualified to prosecute such complex offences.

Dicker was in Baghdad earlier in the year and said the Iraqi Bar Association was having its first election since Saddam came into power. There was a sense of a big broom sweeping through the profession, he reports. But I dont think that much has survived three decades of brutality by way of an independent legal profession or human rights movement.

The IBA is part of the Stockholm-based International Legal Assistance Consortium (ILAC), which is a project that seeks to rebuild legal systems in post-conflict states. ILAC is currently at work in Afghanistan and Liberia and is also hoping to provide training for judges in Iraq. Elliss view is that the statute to set up the IST is rather ambitious in relying upon a domestic legal system than has been in chaos for so many years.

Ellis was involved in the trial of Dusan Tadic, the notorious Bosnian Serb jailed for the murder of Muslims. He advised on implementing training programmes to ensure an adequate defence at the request of Richard Goldstone, former chief prosecutor of the UN war crimes tribunals for the former Yugo-slavia and Rwanda. Justice Goldstone said the success of the Yugoslav tribunal was not the number of convictions, but the fairness of the trials.

Ellis believes there is a lesson to be learnt in Iraq and a lesson that President Bush should listen to. Were now looking at an opportunity to replace tyranny with the re-establishment of the rule of law, and that is a worthwhile fight and a worthwhile effort for the international community to make, even if it means ensuring that this particular defendant has an impartial and fair trial, he says.

The charge sheet

Some of the crimes for which Saddam Hussein might be prosecuted include:

  • The genocidal Anfal Campaign against the Iraqi Kurds, which resulted in the deaths of some 100,000 civilians and the destruction of more than 4,000 villages.

  • The use of chemical weapons against Iranian troops and Kurdish civilians.

  • The large-scale killings that followed the failed 1991 uprisings in the north and south of Iraq.

  • The destruction and repression of the Marsh Arabs.

  • The forced expulsion of ethnic minorities in Northern Iraq during the Arabisation campaign.

Source: Human Rights Watch