Hussein Trial Put Off Amid Doubts About Fairness

by Jim Lobe
by Jim Lobe

While international human rights groups have long wanted former Iraqi President Saddam Hussein to face trial for war crimes and crimes against humanity, they have serious reservations about whether proceedings that got underway in Baghdad Wednesday will meet international standards of fairness.

Human Rights Watch (HRW) has been most outspoken about the rules governing the trial by the Supreme Iraqi Criminal Tribunal (SICT) which, after a session in which Hussein and his seven co-defendants pleaded not guilty to charges stemming from a 1982 incident in which nearly 150 men and boys were executed after an assassination attempt against Hussein, adjourned until Nov. 28.

"We have grave concerns that the court will not ensure fair trial," said Richard Dicker, director of HRW's International Justice Program as the court opened its doors Wednesday morning. "To ensure justice and its own legitimacy, the court must fix these deficiencies."

Amnesty International, which has dispatched three observers to Baghdad to witness the trial, has also expressed concerns about the Court's respect for basic due process rights at various points during the preparation for the trial after Hussein's apprehension by U.S. forces in December 2003.

Hussein's defense team, which claims to have had far too little time to prepare its case, has also made clear they will point out the tribunal's deficiencies at every possible occasion.

"If this was a regular murder trial at the Old Bailey in London, the defense would have had been granted six months to prepare," one of Hussein's lawyers, Abdel al Haq al-Ani, told Reuters on the opening day. "The Americans are intent on making this pure theater, a show trial," he added.

The administration of U.S. President George W. Bush has insisted that the trial is entirely Iraqi-controlled. "Saddam Hussein is facing Iraqi justice," White House spokesman Scott McClellan declared Wednesday.

But the basic law under which Hussein is being tried was written under the supervision of the U.S.-led Coalition Provisional Authority (CPA) and has been modified only slightly since the transitional government was constituted last spring.

According to HRW, Washington has so far spent some $128 million on the investigation and prosecution efforts against Hussein and more than a dozen of his aides to date. It also covered the costs of converting the former Ba'ath Party headquarters in Baghdad into a courthouse where this and other trials are to be held.

According to the New York Times, the U.S.-led Regime Crimes Liaison Office, which also included lawyers and international justice experts from other Coalition countries, particularly Britain and Australia, has been "the real power behind the tribunal, advising, and often deciding, on almost every facet of its work, always behind a shield of anonymity."

The foreign hand in the proceedings, as well as the fact that none of the five judges assigned to the initial case are Sunni Arabs like Hussein, has fueled the impression that the ousted leader faces "victors' justice."

That impression has been furthered by the fact that court officials with any previous ties to the Ba'ath Party, regardless of their rank or importance, have been systematically purged from the tribunal and its administration by Iraqi politicians. Prominent among them is Ahmed Chalabi, whose "de-Ba'athification" efforts are given much of the blame here for the alienation of the Sunni community from the political process and the growth and persistence of the Sunni-based insurgency over the past two years.

The trial that got underway Wednesday is to be the first of a number of cases against Hussein.

The first case is based on events in the mostly Shia town of Dujail following a bloody but failed assassination attempt by 19 men – apparently members of the Dawa movement whose current leader, Ibrahim Jaafari, is now Iraq's president – against Hussein in 1982.

After the attack on his motorcade, Hussein ordered sweeping reprisals against the civilian population. More than 1,500 residents were reportedly rounded up and sent to bleak, overcrowded desert prisons where at least 200 are believed to have died. One hundred forty-three men and boys were tried and executed for their alleged complicity in the attack.

While the Dujail case is by no means the worst of the crimes alleged committed by the Hussein government, the fact that it was the easiest to prepare put it first in line.

Another case arising from the notorious 1988 Anfal campaign in which tens of thousands of Kurds are believed to have been killed, some with chemical weapons, is reportedly nearly complete, while yet another concerning the bloody suppression of the Shia revolt in southern Iraq after the first Gulf War in 1991 is also being prepared.

The selection of these has also fueled criticisms of "victor's justice." "The narrow scope of the charges seems designed to ensure that U.S. complicity with Hussein's crimes will be excluded from real scrutiny," noted Richard Falk, a prominent international law expert at Princeton University.

Washington, which according to some historians helped promote Hussein's rise to power, backed Iraq during the eight-year Iran-Iraq war, a point seized on Thursday by senior Iranian officials Wednesday who said they believed that he should be tried for crimes committed in that war, including the use of chemical weapons against civilians.

"The occupiers just want to execute him without clarification of their role in supporting Saddam when he was in power," Justice Minister Jamal Karimirad complained.

Rights groups had urged Washington to ask the UN Security Council to establish an international court to try Hussein similar to the one at The Hague that is currently trying former Yugoslav President Slobodan Milosevic or, at least, a mixed Iraqi-international court similar to the one now working in Sierra Leone.

But the Bush administration, which had launched a diplomatic campaign against the new International Criminal Court (ICC) and remained resentful of the UN's refusal to approve a resolution authorizing military action against Iraq, refused, insisting on an exclusively Iraqi court, albeit one that depended virtually entirely on U.S. and western financing and advice.

Washington has insisted that the court meets international standards, as McClellan said Wednesday. "They have established the basic standards that you would expect of international law," he said. "I think the trial is a symbol that the rule of law is returning to Iraq."

But in a report released last weekend, HRW said the tribunal's procedures fell short of international standards. The judges, for example, will be able to convict Hussein if they are merely "satisfied" by the evidence, as opposed to their being convinced beyond a reasonable doubt.

In addition, the refusal of a defendant to answer a question can be used against him in defiance of international law's protections against self-incrimination. Finally, Hussein's lawyers have thus far not been given the kind of unconditional access to their client or to the evidence against him that is normally required by international standards. Hussein's attorneys, for example, only received a partial witness list from the prosecution in the Dujail case last month.

In addition, no current international tribunal permits a death sentence. Not only does Iraqi law permit such a sentence for a range of different crimes, but once a death penalty sentence is pronounced, it must be carried out within 30 days of the final appeal, a provision that raises at least the possibility that Hussein may be executed before other cases are heard.

October 21, 2005

Jim Lobe [send him mail] is Inter Press Service's correspondent in Washington, DC.

Copyright © 2005 Inter Press Service

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