Saddam Hussein’s trial before a special tribunal in Baghdad is being portrayed as a watershed moment for the Iraqi people and the global legal system. But critical questions about the conduct of the trial, political interference and the decision to hold it in Iraq rather than under United Nations or international auspices are likely to dog the proceedings and may cast doubt on their legitimacy.
”The trial and those that follow will present … an unprecedented opportunity to provide some measure of truth and justice for hundreds of thousands of victims of human rights violations that occurred in Iraq between 1979 and 2003,” the independent monitoring organisation Human Rights Watch said this week.
But whether that opportunity would be successfully grasped was open to serious doubt, the HRW report said. Particular concern focused on fears that the tribunal’s procedures would prove to be neither impartial nor independent, defence lawyers were at a crippling disadvantage, and the outcome had already been grossly prejudiced by Iraqi and American politicians.
Public statements by, among others, Jalal Talabani, Hussein’s successor as Iraq’s president, had rendered the notion of a fair trial all but absurd, the report suggested. ”Saddam Hussein is a war criminal and he deserves to be executed 20 times a day for his crimes against humanity,” Talabani told Iraqi television last month.
Pressure on the court and its officials, some of whom have been replaced for apparently partisan reasons, does not emanate solely from Iraqis. Although the United States had sought to avoid the appearance of Nuremburg-style ”victor’s justice”, Sonya Sceats, a legal expert at Chatham House in London, said: ”The politics surrounding the establishment of the court have raised particular concerns about the level of American influence.”
The US Congress has provided $128-million for investigations and prosecutions of Ba’athist officials. The US-established regime’s crimes liaison office has played a leading role in interviewing ”high-value detainees” and preparing evidence. Britain has provided £1,3-million, but other European Union countries have held back, partly because of their opposition to the tribunal’s likely resort to the death penalty.
”Irrespective of its veracity, the perception of the court as a disguised vehicle for US retribution is likely to colour Saddam’s defence,” Sceats said. ”He has already insisted that [it] will be a political show trial. ‘I do not want to make you feel uneasy,’ he told the judge during proceedings in July last year, ‘but you know this is all theatre by Bush.”’
Coalition officials point out that the post-war Iraqi justice system was incapable of mounting trials of this magnitude without outside assistance.
But critics maintain that is one of many reasons why an international tribunal on neutral ground would have been a better option. Hussein’s alleged crimes against humanity were essentially international in nature, they argue, including attacks on Iran, Kuwait, Saudi Arabia and Israel, as well as native Kurds and Shia.
The Iraqi tribunal is expressly mandated to follow international standards and can co-opt international judges. Similar so-called hybrid processes have been adopted in Kosovo and East Timor. And the UN’s international criminal court cannot try crimes committed before July 2002, when it was formally constituted.
But the Bush administration’s hostility to the idea of supranational justice based on global treaties and the UN system also appears to have played a crucial part in the decision to try Hussein in Iraq.
”We have grave concerns that the tribunal will not provide the fair trial guarantees required by international law,” said Richard Dicker of Human Rights Watch. — Â