Iraqi justice also on trial as Saddam faces judgment

By Steve Negus, Roula Khalaf and Neil MacDonald

Financial Times

Published: October 19 2005

His statues were torn down two and a half years ago; his once powerful army and his dreaded mukhabarat intelligence service have been destroyed; and his Ba’ath party has been outlawed. But only today will Saddam Hussein begin to face the humiliation of a public trial in which Iraqis and the rest of the Middle East will see the 63-year-old dictator forced to answer charges of war crimes against his people.

For many Iraqis, particularly the millions who lost relatives during Mr Hussein’s repeated waves of repression, the first case that will be tried – the murder of 140 people in the Shia town of Dujail in the aftermath of a 1982 attempt on his life (see below) – will satisfy a yearning for justice and help turn the page on a dark past. Others will dismiss the US-financed trial as a sham, an abuse of national sovereignty in a battered country under foreign military control.

Iraq’s government hopes the trial will help the fight against insurgents and extremist Islamists. “The insurgency umbrella is Ba’athist and the incubators are Ba’athist, and Saddam is their head and they think he’s coming back,” says Hoshyar Zebar, the Iraqi foreign minister. “So long as he’s around it gives them hope.”

But the trial has also generated criticism that has put the legitimacy of the process in doubt. Human rights campaigners, including those who have long called for Mr Hussein’s prosecution, fear that the Supreme Iraqi Criminal Tribunal that has been set up to try Mr Hussein will fail to meet international standards for fair trials.

They warn that the experience could leave the impression of “victors’ justice” and further polarise a society in which Sunni Arabs, some of whom enjoyed key positions under the old regime, feel marginalised by the Shia and Kurds who suffered most from Ba’athist brutality.

Preparations for the trial have been chaotic and shrouded in secrecy, reflecting the country’s instability and persistent security fears. This month, British officials were confidently predicting that the trial would not open today as planned because a witness protection programme had yet to be established and protection equipment in the court had not been installed. Many legal observers say the trial will probably be delayed after its opening sessions, and perhaps pushed into early next year. As for the location of the trial, officials were keeping it secret as late as yesterday – though it is likely to be held in a former government building converted into a court in Baghdad’s fortified “green zone”.

Officials at the tribunal, moreover, have refused to say whether Mr Hussein will be executed if found guilty in the Dujail case or spared to stand trial for a dozen other cases, as many Iraqis would like.

Mr Hussein’s lawyers have complained that they received the bulk of their evidence only last month. According to experts close to the legal team, the witnesses’ names in the dossier were blacked out, preventing the defence from contacting them to investigate the validity of their statements.

“They [the authorities] are trying a man in the midst of insurgency that’s a threat to them, in a state that hasn’t been built – it’s an impossible task,” says Toby Dodge, a London-based Iraq expert.

Mr Dodge argues that the tribunal, and the Iraqi government, have been torn between two uncomfortable options. The first is to rush to a trial on a single case and quickly execute Mr Hussein, but risk leaving the process open to questions of legitimacy. The second is to hold a long trial on a series of cases, but run the risk that Mr Hussein will use the platform – as Slobodan Milosevic, the former Yugoslav president, did at his trial at the International Criminal Tribunal for the former Yugoslavia – to appeal to his remaining constituency and embarrass western governments that assisted him in the past (see below).

In addition to Mr Hussein, the defendants in the Dujail case will include Barzan Ibrahim Hassan al-Tikriti, the deposed president’s half-brother, and Taha Yassin Ramadan, his vice-president. Also on trial will be a former judge in Iraq’s revolutionary court and four Ba’ath party officials from the Shia region.

They will be judged by a panel of five magistrates under the statutes of the tribunal, a unique hybrid that is legally and procedurally an Iraqi national court but will try suspects on crimes based upon international law. This combination allows the court to impose the death penalty – which most international tribunals have jettisoned – but also to disregard any clauses of Iraqi law that would exempt a head of state from prosecution for crimes committed while he was in power.

The court will not hear separate prosecution and defence cases as in the Anglo-American adversarial judicial system. Instead judges will discuss a dossier of evidence compiled by an investigating magistrate.

Critics have raised concerns about some of the tribunal’s statutes. Perhaps most notably, the proof required to convict Mr Hussein and his co-defendants – they will be found guilty to the “satisfaction” of the judge – is substantially lower than the usual international requirement that guilt should be proved beyond reasonable doubt.

“These crimes really had their definitions in international law, and their legitimacy of their prosecution requires practices that are consistent with international standards . . . It’s an odd and improper juxtaposition,” says Richard Dicker, director of the international justice division at New York-based Human Rights Watch, the international human rights organisation. It says the tribunal’s death penalty statute is “draconian”, requiring that any sentence of execution be carried out within 30 days of a final judgment.

That Mr Hussein could be executed for the Dujail crimes before he stands trial for other offences has caused friction between the Shia and Kurdish blocs that dominate Iraq’s government. The main Shia parties are under pressure from their constituents for a quick trial and an execution. But Kurds want to air the details of crimes against them – most notably the 1988 Anfal campaign and the gassing of Kurdish villages in Halabja, attacks that Kurds say left as many as 180,000 people dead.

The composition of the tribunal has been a political football, undermining perceptions of its independence. In 2004 Salem Chalabi, the tribunal’s head, was dismissed by the government of Iyad Allawi, the then prime minister, but the next year staff connected to Mr Allawi were in turn purged because of their reported former membership of the Ba’ath party.

That US advisers have played a leading role in setting up the tribunal has left it open to charges that it lacks independence. Much of the cost of the trial has come from the $128m allocated by the US Congress to investigate and prosecute members of the former regime.

The trial might also be complicated by conflicts within the former president’s defence. Organised primarily by Raghad, his daughter, it has been riven with internal disputes and its strategy appears aimed more at scoring political points than at defeating the charges.

Khalil al-Dulaimi, Mr Hussein’s main lawyer, has been reluctant to discuss his defence. But according to at least two recent members of the defence board, the two main strategies will be to argue that the court is illegitimate, having been set up and financed under foreign occupation, and that Mr Hussein is immune from prosecution as a head of state. Such arguments may appeal to Arab nationalists who consider the process a violation of Iraqi sovereignty. But legal experts say they will carry little weight in court.

A less easily dismissed argument may be that the court has not afforded the accused the means to conduct a proper defence. Many of Mr Hussein’s traumatised victims may not care. But if the trial is seen as unfair, it would be an unfortunate start for Iraq’s emerging democracy and the promise of the rule of law.

Case hinges on reprisals after assassination plot

Saddam Hussein is said to have made the fateful telephone call from a hospital a few kilometres along the road from the school in Dujail where, in July 1982, 19 local men ambushed his motorcade, residents of the mainly Shia town recall, writes Neil MacDonald. Unhurt but perhaps shaken after the assassination attempt, Iraq’s then president allegedly ordered merciless collective punishments.

Within half an hour, say people in the town, military helicopters and ground assault troops had closed in, beginning a two-day hunt for the rebels, who had scattered through the town’s date groves.

Mr Hussein’s forces killed eight of the gunmen, including the three main ringleaders, but lost 60 of their own men in the process, a surviving rebel remembers. Eleven of the conspirators escaped, most finding refuge in Iran.

With Mr Hussein standing trial for his role in atrocities against Dujail, more details about the assassination attempt – including exactly what orders he issued afterwards – will emerge. But the former dictator’s defence team will want to examine the wider context. Iraq, at the time, was at war with Iran and Dujail, less than 100km from the front, was a nest of Iranian-backed Shia dissent. Some residents have described the gunmen as a cell of the Dawa, or “Call”, movement, which was waging an insurgency against Iraq’s Ba’athist government.

Under international humanitarian law, insurrection during wartime is no excuse for killing non-combatants. So the prosecution case concentrates on the repression that came next. After failing to catch most of the gunmen, the regime is said to have razed Dujail’s date groves and sent about 900 Shia residents, including women and children, to desert prisons. Local Ba’athists, mostly from the Sunni minority, apparently helped to select these detainees.

Ba’athist documents record that at least 143 Dujail men were tried before a state security panel and executed in 1985. Survivors say at least 200 others are also presumed dead. Others, however, eventually came back to their homes and businesses in the town of about 100,000, where sympathies for Shia religious parties remain strong.

Survivors, some of whom bear heavy scars from flogging during their time in prison, may be called to testify against Mr Hussein or his co-defendants. This single case, with its limited geographic and temporal scope, will be simpler to prosecute than the wider war crimes and genocide charges that may also be brought against Mr Hussein and others, prosecutors have said. But whether the abuses in Dujail can be proved to be “widespread and systematic” – the defining trait of a “crime against humanity” at the Supreme Iraqi Criminal Tribunal and under international law – remains to be seen.

A long struggle to build on Nuremberg’s foundation

To say that the path to international justice for former political leaders has been bumpy over the past half-century would be an understatement, writes Nikki Tait. On the one hand, there have been repeated accusations that efforts to hold such individuals to account for crimes against humanity are, almost inevitably, “victor’s justice”. On the other, there has been the question of how to manage trials of this nature, given the magnitude and complexity of the atrocities alleged.

The first such attempt was the initial Nuremberg trial, in which 22 Nazi defendants were charged with war crimes and crimes against peace and humanity. The tribunal was seen as a huge legal landmark, heralded for the relatively dispassionate nature of its proceedings and ultimate fairness. Even so, it did not escape the “victor’s justice” charge. Nor did its scale go unquestioned: in trying fewer than two dozen men, the tribunal considered about 100,000 documents, 25,000 photographs and tens of thousands of metres of film. The US delegation alone included 365 lawyers.

The use of “ad hoc” tribunals resumed in the 1990s – first, to look into crimes committed during the conflicts in the Balkans, and then to try the perpetrators of genocide in Rwanda. The United Nations-backed International Criminal Tribunal for the former Yugoslavia was set up in 1993; the Rwanda tribunal was established in the following year. Both have generated controversy.

The trial of Slobodan Milosevic, the former Yugoslav president, began in early 2002 and only reached its half-way stage two years later – by which time the Serbian leader, representing himself, had adeptly turned cross-examinations into opportunities for tub-thumping speeches. A protracted effort to curtail Mr Milosevic’s right to self-representation because of his persistent ill-health eventually failed last November and the case continues.

That said, over 3,500 witnesses have had the opportunity to testify at the ICTY. New legal precedents and determinations – for example, over “command responsibility” or the elements making up the crime of “genocide” – have been established. Of the 126 accused who have appeared before the tribunal, 40 have been found guilty after appeals.

Even so, the acknowledged difficulties with the two tribunals led to a different model being pursued in Sierra Leone, where a special court established to try abuses committed during the country’s civil war was given a shorter time-period to fulfil its mandate and more limited budget.

Outside the UN umbrella, a few countries have pursued initiatives of their own. For example, a “universal jurisdiction” law introduced in Belgium in 1993 led to charges being filed against several world leaders. The law was repealed in 2003, partly under US pressure. Even so, in a “grandfathered case”, former Chadian president Hissan Habre was charged last month with crimes against humanity and torture.

Finally, there is the International Criminal Court, the first permanent world court tasked with trying war crimes, genocide and crimes against humanity. Based in the The Hague and strenuously opposed by the US, the ICC finally became a reality in 2002. Since then, however, it has been gearing up for business and is only now edging towards trial mode. One of its initial investigations, for example, focused on the Lord’s Resistance Army in Uganda. Here, the first arrest warrants against senior leaders were unsealed last week.

The ICC, however, is only able to consider cases occurring since its inception. In addition, its prosecutor can only pursue allegations of crimes in countries that have backed the new court, although he can be asked by the UN Security Council to intervene elsewhere. He can also only step in where national judicial systems have failed to act or are unwilling to do so – unless invited.

In short, it was never going to be the forum for trying Mr Hussein.