The trial that could shape Iraq

Concerns mount that the nation's decimated justice system can't give Hussein a fair trial.

For the Americans, Saddam Hussein is a prize catch whose arrest could prove a turning point in the war. For the Iraqis, bringing him to justice could prove equally important as a turning point on their route to democracy.

If the future Iraqi government ensures a fair and open trial that enjoys credibility at home and abroad, the hearings could help lay the foundations of a new Iraq - based on rule of law, not force - and influence neighboring countries. But some international legal experts doubt that current plans for Hussein 's trial would guarantee due process, amid uncertainty whether he would face the death penalty.

"The future of democracy and civility in the whole of the Middle East will be helped by an open trial, which can constitute a model for dictators and brutes (elsewhere) in the region," says Chibli Mallat, a founder of Indict, an organization that has gathered evidence of human rights violations by the Baathist regime. Iraqi officials insist that they can hold such a trial in Baghdad before the special tribunal that the Iraqi Governing Council unveiled last week that will try allegations of war crimes, crimes against humanity, and genocide.

"Of course he can receive a fair trial," says Dar Nooraldine, a member of the council and a judge who was once imprisoned by Mr. Hussein for ruling that one of the dictator's edicts was illegal. "We have said that this tribunal is not for revenge. It's a fair court based on evidence and eyewitnesses and the accused has a right to a defense."

International law experts voice reservations, however, pointing to the complexity of war-crimes cases, the Iraqi judiciary's lack of experience, and shortcomings in Iraqi procedural law. "It is very important not only that the tribunal be independent and impartial but that it be seen to be so," says Mervat Rishmawi, a legal analyst with Amnesty International, the London-based human rights watchdog. "There is a possibility that it won't be."

In Baghdad Monday, few ordinary Iraqis seemed overly concerned by the niceties of international law when it comes to dealing with their former president. "He should be sentenced to death. He should receive something stronger than the death penalty," said barber Qassem Jaber, summing up what appeared to be a popular opinion.

Timing and venue

US officials have not yet said what they plan to do with Hussein once they have finished interrogating him - which could take several months. No one expects that he will be handed over to the International Criminal Court in The Hague, which was set up in 2002 to deal with cases such as Hussein's, because neither the US nor Iraq are signatories to the treaty creating the court.

As a prisoner of war, which is how Secretary of Defense Donald Rumsfeld described Hussein Sunday, he could face a US military tribunal, but only on charges of crimes against American troops.

It seems almost certain that the US will hand Hussein to the Iraqi government that is due to be created by next July. "The Americans have assured us they will turn over all Iraqis to be tried," says Judge Nooraldine. "From what they have said that would include Saddam."

The former Iraqi president would be the principal defendant in a number of cases of crimes against humanity, and possibly genocide, notably relating to the Anfal campaign, during which the Iraqi Army used chemical weapons against Kurdish villages in 1988, and Hussein's decision to drain marshes in southern Iraq to flush out antigovernment guerrillas in 1991.

Evidence implicating a number of Iraqi leaders in crimes against humanity and war crimes has been gathered by Indict and other international human rights groups. The US authorities in Baghdad have assembled Iraqi secret police and military dossiers stretching along eight miles of shelves that are thought to contain evidence that could be used to try Hussein and other regime officials.

But establishing paper trails that would definitively link Hussein to the worst crimes could be a lengthy and complicated process, as international prosecutors seeking to put former Yugoslav president Slobodan Milosevic behind bars have found, in a trial that has already lasted over a year.

No trial in recent Iraqi memory has lasted more than a few days, and the Iraqi judicial system has been emasculated by 35 years of Baathist rule, leading some outside observers to wonder if it could handle difficult and sensitive trials fairly. Iraqi judges, prosecutors, and investigators "lack the experience, not through any fault of their own," says Richard Dicker, head of the International Justice program at Human Rights Watch. "To expect them to shoulder this burden is at best a poor fit."

The new war-crimes tribunal's statute allows the Iraqi government to name foreign judges to the court, and provides for foreign advisers, but the investigators and prosecutors will be Iraqi.

Though Judge Nooraldine, who helped draw up the tribunal's statute, insists that Iraq would welcome outside help, Mr. Dicker points to what he says is another shortcoming: The special tribunal will work according to prerevolutionary Iraqi criminal and procedural law dating from 1958 that does not bar mistreatment of suspects, nor demand that defendants be found guilty "beyond reasonable doubt."

"The old law is by no means consistent with international standards of due process," Dicker argues. "There is a real danger that this court will lack legitimacy and credibility."

Death penalty?

At the same time, the 1958 law provides for the death penalty. Though currently suspended by US authorities in Baghdad, its reintroduction by a new Iraqi government would prevent any government in Europe, where the death penalty is banned, from cooperating with the court.

Despite the drawbacks of the tribunal, says Ann Clwd, British Prime Minster Tony Blair's special envoy on human rights to Iraq, "it has to be enough now. The Iraqis have made it clear they want to have the trials, now they have to get on with it."

Meanwhile, Hussein is unlikely to appear in court for several months; both American interrogators (seeking information about resistance fighters and weapons of mass destruction) and preparations for the trial are expected to take that long.

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