Dim Prospects for Justice in Iraq

Speaking before U.S. troops in Iraq yesterday, President George Bush bragged of the transitional government's accomplishments. "Iraqis have laid the foundation for a society built on the rule of law," he proclaimed, referring to the court that has been created to try the senior leadership of the former Iraqi government.

This court, called the Iraqi Special Tribunal, will prosecute at least a dozen and probably many more high officials from the Baathist era, chief among them, of course, being Saddam Hussein. It will, promised President Bush, give Hussein "the trial that he did not afford his fellow citizens when he was in power."

Saddam Hussein's justice was a cruel travesty. No doubt the upcoming proceedings will be immeasurably fairer than trials carried out during his repressive government. But evaluated against fundamental international standards, the planned Iraqi trials raise serious due process concerns.

Genocide, Crimes against Humanity and War Crimes

The three and a half decades of Baathist rule in Iraq were marked by some of the worst abuses codified under law: crimes against humanity, genocide, and war crimes.

The list of specific offenses is long, including the gassing of thousands of Kurdish civilians in the village of Halabja, in 1988; the genocidal campaign against the Kurds during the late 1980s; the brutal retaliation against Shiite communities that had rebelled again the Iraqi government at the end of the Gulf War; the unjustifiable devastation of Iraq's marshlands and their inhabitants; and innumerable abuses committed during Iraq's war with Iran and its invasion of Kuwait.

Deposed from power in April 2003, Hussein was detained by U.S. forces that December. He was formally informed of the charges against him in July 2004, as were eleven of his government's senior officials, a group of so-called high value detainees.

Just days before Hussein's capture, the Iraqi Governing Council promulgated the statute establishing the Iraqi Special Tribunal. In April 2004, the first appointments to the court were announced, and in December the tribunal's judges adopted a set of rules of evidence and procedure.

Iraqi Justice

Human right groups had little input into the design of the trial procedures. Although U.S. officials claimed that it would be an "Iraqi-led" process," it was they who took charge of drafting the tribunal's statute. And when in the summer and fall of 2003, for example, Human Rights Watch asked permission to review and comment on the tribunal's draft statute, the U.S. authorities denied its requests.

Human Rights Watch and other groups urged the statute's drafters to consider establishing a mixed national/international tribunal, not a purely Iraqi court. In their view, given the difficulties of prosecuting genocide and related crimes, the striking inexperience of Iraqi judges and prosecutors in managing complex criminal trials, and the crucial importance of a fair process, substantial international involvement was required.

But both the Americans and the Iraqis insisted on an all-Iraqi court. In the end, the statute of the special tribunal included only two concessions to international participation. While prosecutors must be Iraqi nationals, the statute permits but does not require the naming of non-Iraqis as judges. It also provides for non-Iraqis to be appointed as advisors or observers to Iraqi prosecutors and judges.

Due Process Shortcomings

The special tribunal's jurisdiction extends to the international crimes of genocide, crimes against humanity, and war crimes. (It also includes three additional crimes under Iraqi law: manipulating the judiciary, squandering public assets, and pursuing policies that threaten war against an Arab country.) Its definitions of these crimes are largely consistent with international standards.

Yet, viewed as a whole, the statute and rules of the Iraqi Special Tribunal have serious flaws. First, neither the statute nor the rules specifically require that guilt be proven beyond a reasonable doubt, a basic standard of international human rights law. Second, the tribunal allows for trials in absentia, compromising the right to a defense.

Third, and importantly, both the right to counsel and the right to remain silent are not granted to the defendant at a sufficiently early stage in the legal process to ensure fair proceedings. Indeed, the "high value detainees" arraigned in July 2004 did not have counsel present at their court appearances. Although it is unclear when they were finally allowed to meet with their lawyers, they appear to have been made to wait many months after their initial detentions.

Saddam Hussein, in particular, was captured in December 2003, and arraigned in July 2004, but according to press accounts he did not see his lawyers until December 16, 2004. It is not known whether he provided information relevant to his alleged crimes prior to having access to counsel, and, if so, whether prosecutors will try to use such information at his trial.

These shortcomings are magnified in importance given a fourth problem, which is the statute's inclusion of the death penalty as a possible (indeed likely) punishment. Here, again, U.S. and Iraqi views coincided. Unlike coalition partners such as the United Kingdom, the U.S. itself provides for capital punishment, and Iraqi public opinion was said to demand it.

Human rights group fear that the use of the death penalty will degrade the trial process, sending the message that its purpose is sheer vengeance. And on a more practical level, its availability as a punishment has delayed the gathering and analysis of forensic evidence, as some foreign forensics teams have been reluctant to assist in a process that may lead to the execution of defendants.

Laying a Foundation for the Rule of Law

Prosecuting high-level Baathist leaders will be a daunting task. The analysis of documentary evidence, of which there is many tons, is a massive challenge in itself. Equally difficult, given the widespread violence in Iraq, is arranging an effective program for protecting the safety of witnesses, judges, and tribunal staff. (Indeed, in March of this year, one of the judges was shot and killed.)

But if Iraq is ever to make a break from the abusive practices of the previous government, the establishment of a just process for trying Baathist leaders is a crucial starting point. To lay a foundation for the rule of law in the future, and out of deference for the memory of the dead, the crimes of Saddam Hussein's government should be tried before a credible and fair tribunal.

Although the cases of the first five defendants were referred to trial panels in March, their trials have not yet begun. It is not too late to remedy the flaws of the current process, and it is imperative that this be done.