Saddam's Trial: Can It Still Meet The Conditions For It To Be Deemed Fair Under International Law?

By NOAH LEAVITT

Tuesday, Jan. 24, 2006

Today, the trial of former Iraqi president Saddam Hussein resumes, following a month-long recess. In this first trial in what is contemplated to be a series, Saddam and his co-defendants are accused in the 1982 slayings of more than 140 people in the town of Dujail. It is expected that hearings will continue for three days, then break for an unspecified amount of time.

Thus far, Saddam's trial has produced almost no hopeful news for those seeking justice for his nearly three decades of massive atrocities. Shortly after the proceedings began in late October 2005, two defense lawyers were assassinated, and a third fled Iraq. Then, in late November 2005, police uncovered a plot to fire rockets at the courtroom. (Also in late November 2005, a judge removed himself because one of Saddam's co-defendants may have been involved in the execution of his brother.)

These and other security problems, as well as concerns about the rules and composition of the Iraq-based tribunal, led many to call for the trial to be moved out of Baghdad to another venue, possibility into an international forum. (I've previously written on the trial, including this issue, in columns for this site last October and last November.)

This month's recess has been painful for the tribunal. The past week, in particular, brought the entire proceedings to a near-crisis point. After Chief Judge Rizgar Amin resigned his post a week and a half ago, it was unclear who would head the panel of judges presiding over the trial until late yesterday. Amin apparently will continue as a judge, though not as Chief. Late yesterday, officials named Raouf Abdel-Rahman, a Kurd, as the new Chief, surprising everyone -- including, it seems, many members of the Tribunal.

Below, I argue that the internationally-mandated requirements for a fair trial have not been met by the proceedings in Baghdad. As a result, the trial will need the support of the international community if it is to even attempt to comply with international law. Hopefully, it's not too late to take steps toward compliance.

International Fair Trial Norms: It's Not Too Late for Saddam's Trial to Comply

Out of the Nuremberg trials of the late 1940s, numerous international norms concerning fair trials and due process standards emerged. Over subsequent decades, these norms have become more fully developed, especially in regard to independent tribunals.

The primary structural guarantee of a fair trial is that decisions will not be made by political institutions but by competent, independent, and impartial tribunals established by law. International law recognizes that the independence of a tribunal is closely tied to its ability to grant the defendant a fair trial. In addition, where a trial concerns highly-politicized issues, the law generally acknowledges that the appearance of impartiality is nearly as important as actual impartiality.

In particular Articles 8, 10 and 11 of the Universal Declaration of Human Rights affirm the rights of everyone to an effective remedy, to a fair and public hearing by an independent and impartial tribunal, and to the right to be presumed innocent until proven guilty.

Moreover, Article 14 of the International Covenant on Civil and Political Rights (ICCPR) provides that any person charged with a criminal offense is entitled to "a fair and public hearing by a competent, independent and impartial tribunal established by law." The Republic of Iraq ratified the ICCPR in 1971, and all successor governments remain bound by it.

(These rights have been established in various regional human rights treaties, as well, including, in the Americas, Article 8(1) and 27(2) of the American Convention; in Europe, Article 6(1) of the European Convention; and in Africa, Articles 7(1) and 26 of the African Charter, Basic Principles on the Independence of the Judiciary.)

Judged against these standards, Saddam's legal proceedings fall markedly short. Worse, they are falling farther, and faster. Only international intervention offers even the hope of compliance with international law's fair trial standards, and the hope of salvaging justice for Saddam's victims.

The Chief Judge Resigns: The Controversy over his Successor

Chief Judge Amin's January 15 letter of resignation threw into chaos a court whose ability to stage a fair trial in the midst of religious, political and ethnic conflict had already been subject to serious doubt. Amin himself has not announced the reasons behind his decision, but some government officials and other Shi'ite leaders complained Amin had been soft on Saddam, and had let him take control of the courtroom.

Who would succeed Amin? The answer to this question has changed several times in the past few days.

The administration of the Iraqi High Tribunal, the five-member appeals chamber meeting as the executive arm of the court, pushed hard for Sayeed al-Hamashi, the most senior of Amin's four colleagues on the panel, to be appointed as his permanent replacement (Hamashi had been chosen last week to temporarily preside over the trial -- apparently following rules designed to cope with brief illnesses or other absences).


Some judges complained, however, that the administration had no right to appoint Hamashi. They cited the statutes governing the tribunal which, they claim, make clear that a new chief judge must be elected by all the other judges, not appointed by a small group of them.


Fourteen of the fifteen judges who make up the tribunal's three chambers held talks for several hours at their offices last week. Amin, the fifteenth, did not attend.

Moreover, in addition to these internal debates, Hamashi was criticized for being unfit to step into this critical role. While the judges have had U.S.-funded training, many lawyers noted Hamashi's absolute inexperience on the bench. One Baghdad lawyer recently said: "He has never worked as a judge before so how can he run the trial of the century?"

Hamashi has also been controversial because of his alleged past affiliation with Saddam's political supporters.

A senior official of the independent De-Baathification Commission. denounced him as a member of Saddam's banned Baath party who should be barred from office.

The Commission, set up under U.S. military rule after Saddam's overthrow in 2003, is charged with rooting out members of the Baath party from power.

Hamashi's presence in the court allegedly violates the statutes that prevent Baath party members from holding a role in public life.

Ahmad Chalabi, a Pentagon favorite and head of the Iraqi National Congress who became head of the De-Baathification Commission, has targeted other High Tribunal officials for dismissal.

To be Fair, the Trial Must Be Well-Guarded and Relocated Abroad

Meanwhile, Iraq's larger political tensions continue to exert influence on the Tribunal. Iraq's president, Jalal Talabani, last week called for the trial to be moved from Baghdad to his own Kurdish home region in what he called an effort to improve security. Moreover, Talabani reportedly sent a message to Amin - also a Kurd - asking him to reconsider his departure.

The Kurdish region is safer than violent Baghdad. But moving the trial there would send the wrong message: Since the Kurds were among Saddam's most targeted victims, they are understandably deeply hostile to the former leader. Even if the trial were just, it could appear unjust simple by virtue of being relocated to a hostile area. (And the appearance of unfairness is already present: The Tribunal is widely seen as a pawn to Iraqi political interests.)

If the trial is relocated, it should be relocated outside Iraq.

Last week, the U.S.-based organization Human Rights Watch released a major report that concluded that "the human rights situation in Iraq deteriorated significantly in 2005."

The report cited a rise in insurgent armed attacks, including the deliberate targeting of civilians; a high level of abductions of Iraqis; U.S. and Iraqi counterinsurgency operations resulting in the killing of civilians; as well as evidence of the torture and other mistreatment of detainees held in the custody of U.S. forces in 2003 and 2004.

Of particular concern to the Tribunal, the report noted that victims of targeted assassination by insurgent groups include "government officials, politicians, judges, journalists, humanitarian aid workers, doctors, professors and those deemed to be collaborating with the foreign forces in Iraq, including translators, cleaners and others who perform civilian jobs for the U.S.-led Multi-National Force in Iraq." Kidnappings too have occurred - and journalist Jill Carroll is still being held, under threat, as of this writing.

Can a trial be fair when everyone in the court knows that a particular remark or question may be their last? The inability to ensure the security of judges, lawyers, witnesses and others who attend the trial is a grave threat not only to life and limb, but also to fairness and compliance with international law.

And yet the U.S. either cannot, or will not, make the trial secure. Last week, the Bush administration indicated that it does not intend to seek any new funds for Iraq reconstruction in the budget request going before Congress in February. The decision signals the winding down of an $18.4 billion U.S. reconstruction project, and the likely stepping-down of the U.S.'s role in the Tribunal.

No wonder, then, that last Saturday, Judge Raid Juhi, head of the investigations committee at the Iraqi Criminal Court, hinted at a two-month time limit on Saddam's Dujail trial.

The Hope of a Fair Trial: What Fulfilling It Might Require

Can anything be done to salvage this situation - and to work toward a trial that is fair both in appearance and reality?

I think so, but it will not be easy. The newly-constituted Iraqi government would have to request international assistance from the U.N. - which has shunned any involvement in the trial because of political disagreements with the U.S. - and other international entities, such as the European Union. Such an effort would remove many of the suspicions Iraqis, and others around the world, have that the tribunal is merely a U.S.-controlled show trial.

It was, of course, the Nuremberg trials that established the standards for addressing crimes against the international community.

Why were these trials seen as fair - while Saddam's is not?

First, the Nuremberg trials were transparent: The world closely followed, and was well-informed, as to what was occurring.

Second, and even more importantly, the Nuremberg Trials exemplified a commitment to standards of due process. At the time, America could be proud that its law had formed a model for what those standards should be. Moreover, the Nuremberg trials were a shared effort of the U.S., England, the Soviet Union and France - an international collaboration of the highest order.

In short, the Nuremberg trials were fair, and the world knew it. Now, Saddam's trial seems destined to fall far short of fairness - and the world will know that too. And will remember it for decades.

International cooperation could move Saddam's trial much closer to the Nuremberg model, and further from the kind of partisan politics that ought to have no place in a courtroom.

Safe, Thorough and Fair Trials Are What's Needed

In Baghdad, the legal response to Saddam's crimes against humanity is just beginning, with many more cases in the works. That means that the Tribunal - no matter who the Chief Judge turns out to be - must settle in for the long haul. Yet, its first proceedings need not take forever: It took less than a year, in the Nuremberg trials, for 22 top Nazi leaders to receive fair trials for war crimes: There were 12 death sentences, 7 jail terms, and - testimony to the trials' fairness -- 3 acquittals.

To do its work well and safely, the Tribunal must be secure. That probably means it can no longer be located in Iraq--or, at the very minimum, that international institutions abroad must be involved. And it certainly means that security must improve - with participants safeguarded not only against political interference, but also against threats to life and limb.

This weekend, Saddam's defense team called for his trial to be suspended. It would be absolutely wrong to give into such obstructionism: The evidence shows grave crimes occurred, and Saddam must answer for them. Yet, the defense's calls for better conditions need to be taken seriously.

For the Dujail trial to fall apart at this early stage means jeopardizing the ability to investigate, bring to light, and hold Saddam and others responsible for much greater horrors. The international community should not cast a shadow on the shining light of the Nuremberg Trials by allowing this trial to be darkened by shadows of bias and of fear.


Noah Leavitt, an attorney, teaches at Whitman College. He can be reached at nsleavitt@hotmail.com.

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