Saddam's Upcoming Trial: How Can Justice Be Served?

Ever since the capture of Saddam Hussein in December 2003, the world has been eagerly awaiting his trial - which may turn out to be of considerable historical significance. Yesterday, October 19, however, after Hussein entered a "not guilty" plea, the Supreme Iraqi Criminal Tribunal granted his attorneys' request for an adjournment. Trial will now begin on November 28.

Given the current situation in Iraq, the decision for an adjournment was fortunate.

With last weekend's inconclusive referendum on a controversial national constitution, and a variety of serious challenges posed to the legitimacy of Hussein's trial, the turmoil in Iraq is extensive, and dangerous. Embarking on the trial now would likely have worsened the situation.

In fact, I will argue below, this was exactly the wrong time to bring this case to trial. One can only hope that at the end of November, the situation may be at least somewhat improved.

A Shaky Moment In Iraq's History: Violence and a Controversial Vote

Saddam's trial would have taken place - and very likely still will take place -- at one of the most tension-filled, and unstable, moments of modern Iraqi history.

Last week, the Iraqi people went to the polls to vote on a referendum on whether to approve a draft constitution. In short, they were asked whether they want to live in a country governed by an explicit, albeit highly controversial, legal order - one that has been assembled by a mix of international (primarily American) and Iraqi consultants.

Iraq's ethnic diversity has complicated the situation, as I predicted would be the case in a column for this site, more than two years ago. Shiites and Kurds have largely backed the draft constitution. Sunni Arabs, including Hussein's remaining followers, however, are largely opposed to the document, fearing its adoption will result in, among other things, the dissolution of Iraq and the handing over of the country's vast oil wealth to the Shiites and Kurds.

Official estimates immediately following the referendum hinted that about 10 million Iraqis cast ballots - about 2/3 of registered voters. Preliminary results showed the constitution appearing to have been approved by about 65 percent of those voting.

Yet, almost as soon as the voting ended, the situation became murky.

Iraqi election officials were admitting at the beginning of the week that they were investigating "unusually high" vote totals in a dozen critical Shiite and Kurdish provinces, where as many as 99 percent of the voters were reported to have cast ballots in favor of the new constitution.

Now, the final results from Iraq's landmark referendum will likely not be announced until at least this Friday, October 21. Yet, on Tuesday, the 18^th, the New York Times noted that the investigation of the high vote totals "raised the possibility that the results of the referendum could be called into question."

Meanwhile, insurgent attacks have renewed their strength, after being nearly silent for the referendum day.

And Hussein's trial is igniting worries among Sunni Arabs that the Shiite Muslims who now control Iraq are more interested in seeking vengeance than in providing justice.

In the current unsteady post-referendum moment, nearly everyone involved in the trial -- ranging from the judges and prosecutors to defense counsel and even the witnesses -- is liable to attract death threats from one or another of Iraq's political factions. As if to confirm observers' worst fears, on Wednesday, October 19, Hussein's ousted Baath party called for its Iraqi supporters to step up attacks on U.S. and Iraqi forces in order to mark the start of the trial.

The First Case Against Hussein: Confined to a 1982 Massacre

Those who were hoping the trial would quickly begin to catalogue the abuses of Hussein's nearly 25-year rule will be disappointed. Despite the scope of Hussein's massive and brutal terror, the first charges brought against him have struck many as underwhelming.

In this first case, Saddam and seven senior members of his regime will face accusations that they ordered the killings of approximately 145 people from the Shiite town of Dujail following a failed attempt on Hussein's life in 1982.

Plainly, this case charges Saddam and his cohorts with horrific and serious crimes. But this event does not get to the heart of why Hussein is now on trial. Court officials have said they are trying Saddam on the Dujail massacre first simply because it was the easiest and quickest case to put together.

Other crimes with which Saddam may be charged include an attack that Hussein carried out on a string of Kurdish villages which led to the deaths of close to 190,000 people at Anfal and other towns. These cases involve much larger numbers of victims, more witnesses and more documentation

Not a U.S.-Style Trial: What the Tribunal's Proceedings Will Be Like

A five-person bench, composed of Iraqis who have been trained by British and American lawyers, is hearing the case. The proceedings are taking place inside Baghdad's heavily fortified Green Zone.

Despite the fact that the tribunal was set up by an interim Iraqi government created by U.S. occupation authorities, proceedings in the court will not resemble U.S. trials. The presiding judge, Rizgar Amin, will assert much more control over the proceedings than would typically be the case here. There is no jury, and thus the five judges, alone, will decide the guilt or innocence of Hussein and his co-defendants. And the judges will be permitted to draw upon help from their U.S, and British international advisers.

Many questions about the trial remained until the last minute. Hussein and his defense team did not even know the specific charges brought against him until they heard them in open court yesterday.

If convicted, Saddam and his co-defendants could face the death penalty. However, they could appeal before another chamber of the special tribunal. Any sentence could be carried out within 30 days after appeals are exhausted.

The Many Reasons Why the Trial is Controversial

Hussein's trial should provide a moment of celebration for the Iraqi nation, and particularly for those among Saddam's victims who are still alive. The world should be rejoicing that this dictator is finally going to face legal proceedings and be held accountable for his vicious governance.

However, six major areas of controversy surround this trial - and have dampened, in some quarters, the enthusiasm for it.

First, critics argue that the Iraqi Court is not legitimate because it derives from an illegal invasion of Iraq, one carried out - led by the U.S. - without U.N. authorization. Hussein's defense team will likely play up this aspect.

Second, many Iraqis, who saw the trial as a chance to heal from decades of state-sponsored terror, are expressing bitter disappointment, at least with the first case that is being brought. Many believe that examination of the Dujail incident is far too narrow to satisfy the popular desire for Hussein to be held to account for the vast heinousness of his crimes. Such criticism poses a challenge to those who say that the Iraqi people support the tribunal.

Third, critics are concerned about the forceful American presence behind the scenes at the Tribunal. Because Hussein essentially eliminated Iraq's legal system, in favor of a system of unconstrained executive discretion, brutality, and fear, the U.S. has been the driving power behind the tribunal and the trial. It was just days before Hussein's capture in 2003, that the Iraqi Governing Council, with extensive U.S. assistance, developed the statute establishing the Iraqi Special Tribunal. (Later, 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, again with extensive U.S. guidance.)

A Key Concern: Failure to Look to the Model of Nuremberg

Fourth, supporters of international justice -- including a number of prominent human rights groups like Amnesty International -- have criticized the trial for being carried out by an Iraq-based entity, rather than by an international tribunal.

Certainly, there are many reasons why trials of this magnitude may be better tried in an international or mixed international-domestic tribunal. Saddam's catalogue of crimes against humanity could easily be defined as international, in that they comprised attacks on Iran, Kuwait, Saudi Arabia and Israel. In addition, the complexity of prosecuting genocide and connected crimes, the vast inexperience of Iraqi magistrates and prosecutors in overseeing such trials, and the crucial importance of an open trial with adequate due process, all make the value of a purely domestic Iraqi tribunal questionable.

Earlier this year, after assessing the structure of the tribunal, Amnesty concluded, "The statute of the Iraqi Special Tribunal currently in place is not consistent with international law." The group advised that "Trials and further investigations should not proceed until the concerns outlined … have been adequately addressed."

Some of the groups that have raised issues concerning the tribunal have referenced, by comparison, the tribunals that judged Nazi leaders at Nuremberg after WWII. Indeed, the Nuremberg trials of 1945 and '46 established a foundation for international human rights law.

They initiated a movement to develop a permanent tribunal, leading over fifty years later to the adoption of the Statute of the International Criminal Court (ICC).

Some commentators have called for Hussein to be brought before the ICC, as it was established to address broad "crimes against humanity". However, the U.S. has long led the resistance to the ICC, going so far as to ratify a series of bilateral treaties with other countries that assure that its officials and troops, if present there, will not be brought before this body.

In addition to the ICC, two other possible models for trying Hussein have been mentioned. One is the International Criminal Tribunal for Rwanda -- established by the United Nations in 1994 to prosecute crimes of genocide in that country. Another is the international tribunal that has spent over four years hearing the case against former Yugoslav president Slobodan Milosevic, and is based in The Hague.

Will The Trial Satisfy International Due Process Standards?

Fifth, many have pointed out that the trial may not measure up to international standards of due process. This is in part because the proceedings are following a 1971 Hussein-era criminal law that has lagged behind the development of international standards in the intervening decades.

For instance, Hussein and other defendants have been able to see their defense counsel only when they have been interrogated by an investigating magistrate. Observers say that is too late in the process to be meaningful.

In addition, the statute that created the tribunal requires only that judges be "satisfied" of a defendant's guilt to convict, not "satisfied beyond a reasonable doubt" - the more common (and American) standard. There are also concerns about limits on the ability of the accused to mount a defense, and the burden of proof imposed. (See Joanne Mariner's April column for an early expression of these concerns.)

The Presence of the Death Penalty: A Final Reason for International Criticism

Sixth, many longtime proponents of international law have removed themselves from any participation in this tribunal because of the strong Iraqi (and, presumably, American) interest in seeing Hussein executed. Despite the fact that none of the contemporary international tribunals, including the International Criminal Court, authorizes capital punishment, the Iraqi government made it clear from the beginning that it much prefers execution for Hussein after conviction, over a prison sentence.

Iraq's insistence on retaining the death penalty as the likely penalty has prevented European nations -- which have outlawed such punishment -- and the United Nations from playing any significant role in the investigation or prosecution of the regime's crimes. Doubtless in part for this reason, the Iraqi government has not made use of one of the Iraqi tribunal statute's important provisions, which allows for the participation of foreign judges.

Domestic Political Opposition: Some Simply Seek Quick Revenge

In addition to these formidable obstacles, Hussein faces another steep challenge - Iraq's own political leadership, starting with the new Prime Minister Ibrahim al-Jaafari. Al-Jaafari appears to want to see quick vengeance, rather than the possibly slower, but more comprehensive, legal proceedings that would examine the many different crimes with which Hussein is charged.

The relation between these two men is complex and extremely hostile: Hussein has blamed Al-Jaafari's Shiite Dawa Party for the Dujail assassination attempt. Conversely, the Shiite Muslim leader has five close relatives, including an older brother, who were executed by Saddam's regime in the 1980s and 90s.

Al-Jaafari, who took office in April as the head of a Shiite-Kurdish coalition, is on record as saying that the Iraqi tribunal took an unjustifiably extended period to prepare its case. More recently, he was quoted as saying that he wants to see any sentence carried out quickly, noting "We are not trying to land on the moon here. It's enough on Dujail and Anfal."

Similarly, Jalal Talabani, who followed Saddam as Iraq's president, was recently quoted on Iraqi television as saying, "Saddam Hussein is a war criminal and he deserves to be executed 20 times a day for his crimes against humanity."

These and other, similar forms of pressure from Iraq's new political elite to bring the trial has forced the tribunal to accelerate some of the work needed to prepare for other, more complex cases. These cases involve tens of thousands of victims, several hundred mass graves and tons of documents gathered from the government agencies that coordinated Hussein's terror-filled reign.

How Should We Assess The Trial's Success or Failure?

In addition to all of these many challenges, the final - and perhaps the largest - puzzle raised by Hussein's trial relates to how we assess whether the trial is successful. What is the yardstick?

Saddam's guilt is almost universally assumed. Given this fact, is a fair trial even possible? If Hussein is found guilty, and executed, then what? Does that constitute a positive development for the Iraqi and international legal order, or is it simply "victor's justice"? Critics believe that such a result will appear to be a pre-ordained outcome stage-managed by the United States, which launched the war against Iraq in the first place, and which wants Hussein out of the picture.

Moreover, what if - for some reason - the five-judge panel does not find Hussein guilty in this first case? Then what? No one has speculated that Hussein might escape a "Guilty" verdict by the panel, but it seems that possibility should at least be considered if this is being called a fair trial.

And how will the Tribunal's decision play against the outcome of the constitutional referendum, and the simmering, and volatile, ethnic tensions in Iraq? Will the decision impose any resolution, or just open the country's wounds further?

What the Trial May Mean, in the Context of Iraq's History

All trials are to some degree political. But no trial in the past fifty years has brought with it such extensive consequences as Saddam's. This case may well have a large influence on the history of Iraq, and may play a large part - along with the problematic Hurricane Katrina response -- in defining President Bush's second term in office.

Were it free from the many problems discussed above, Saddam Hussein's appearance in court would be a shining moment in the movement of Iraq (and possibly the entire Muslim world) toward a more democratic society based in the rule of law, and the healing of the Iraqi people from decades of abuse and terror.

On Monday, a U.S. State Department spokesman said "I think that the Saddam trial is going to be an important process for the Iraqi people in coming to terms and really closing a dark period, dark chapter in their history."

Yet, will the chapter really be closed if so many questions linger about the validity of the trial - both with respect to the way that it was organized, and with respect to the eventual outcome?

It would be a great mistake, in my view, to execute Saddam before the full record of his terror is allowed to be made public. This record ought to be presented, and preserved, for history. The strongest case possible ought to be made - explaining, through evidence, what Saddam did, and what the consequences were.

On the more pessimistic side, this trial could become a tinderbox for the simmering ethnic tensions in Iraq. If Hussein is able to take control of the proceeding - as Milosevic has indeed taken a large degree of control of his trial in The Hague - he could regain the loyalty of his Baathist followers, who could continue their resistance to the new Iraqi government.

Hussein could also make a laughingstock of the Tribunal and the Americans who backed it. If the judges sit under a suspicion of "victor's justice," the verdicts they mete out will be used to justify further unrest and anti-American strikes. Indeed, they might even incite further terrorist reprisals (assuming that the Madrid and London bombings were such reprisals) against the Western nations that invaded Iraq.

An unjustifiable decision from the five judges would also run the risk of establishing regressive legal precedent, which could hinder long-term efforts to establish a method for bringing dictators to justice. Those who think procedure is unimportant here, since Hussein's guilt it clear, ought to reflect that these procedures may set a precedent for much closer cases that might be brought (perhaps for political reasons) in the future. Procedures must be designed to exculpate the innocent, not just send the guilty to their fates.

Given the tremendous risks this trial poses, it is a grave misfortune to rush it along and ignore outside criticism in a narrow effort to obtain a quick outcome - notably, Saddam's execution. The Tribunal was right to give Hussein's defense team extra time. And it should answer those who argue that the Tribunal is providing a sub-standard level of due process, possibly modifying procedures, before trial begins, to address these criticisms.

The world is only going to have one opportunity to bring this once-ferocious ex-dictator to court, and - more broadly -- to establish the importance of the rule of law in a society that is trying to take more control of its own fate.

It would thus be ironic, and sad, to approve a constitution creating a legal framework for resolving disputes, and then to have the first major legal decision linked to the constitution be clouded by suspicion, political infighting, and personal vengeance.

And it would be a great disrespect to Saddam's hundreds of thousands of victims, if their story, and the evidence supporting it, are never heard, or not given the time and care they deserve.