Can Saddam Hussein get a fair trial?
The first case against the deposed ruler is to begin Wednesday in Baghdad.
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Though the Iraqi tribunal's statutes and rules closely follow those of the fledgling International Criminal Court, and precedent at Rwandan and Yugoslav war crimes tribunals will guide the Iraqi court, "it will inevitably be a victors' trial" worries Chibli Mallat, a founder of Indict, an organization that unsuccessfully badgered the international community for years to indict Hussein for his crimes even while he was in office.Skip to next paragraph
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"Victors' trials are never of the standard they would have been if a special court had been set up before," Professor Mallat adds. "This is not at all the ambition we had hoped for."
Mallat would have preferred to see a mixed court, like the Sierra Leone tribunal, outside Iraq for security reasons. All the judges hearing cases against former regime leaders have moved to temporary housing in the US-secured Green Zone in central Baghdad, and their families may have to follow them. It is unclear whether all the judges will allow themselves to be identified.
In the current atmosphere of lawlessness, everybody involved in the Hussein trial - judges and prosecutors, defense counsel and witnesses - is liable to attract death threats from one quarter or another of Iraq's political scene. "Judges have been assassinated in much less sensitive cases than this," Mallat points out. "It is a bizarre and cruel trial, taking place in the midst of a civil war when one of the main protagonists in the war is the accused."
The Iraqi authorities hope that the trial itself, by publicizing the extent of the former regime's cruelty and bringing perpetrators to justice, might also bring an element of political stability.
Holding it in Baghdad, rather than abroad, "makes the process that much more accessible to both the victims and to those in whose name the crimes were committed," says Mr. Dicker. "There is a value to the trial taking place close to where the crimes occurred," he says, despite security risks.
Nonetheless, Dicker worries that the trial may not measure up to international standards. Hussein and other defendants have been able to see their defense counsel only when they have been interrogated by an investigating magistrate, for example, which human rights activists say is too late. And the tribunal's statute requires only that judges be "satisfied" of a defendant's guilt to convict, not "satisfied beyond reasonable doubt."
"This is a disturbingly low threshold," says Dicker. "It's a real anomaly that reflects Iraqi law but not developing international law."
Hussein's judges will certainly be familiar with the provisions of international war crimes law: they have been trained by independent foreign experts hired by the US Justice Department, which also arranged for the translation into Arabic of portions of the Nuremburg, Rwanda, and Yugoslavia hearings.
The Iraqi government has not, however, made use of one of the Iraqi tribunal statute's provisions, which allows for foreign judges. Its insistence on keeping the death penalty has also prevented European nations - which have outlawed such punishment - and the United Nations, from playing any significant role in the investigation or prosecution of regime crimes.
That disappoints Scharf. "The Iraqis are saying that this is our court, the atrocities were committed against our people, and we have always had the death penalty," he explains.
"This is the trial that is going to happen," he adds. "Do we want to help make it the best trial possible or do we ignore or oppose it?"
Whatever the outcomes of the forthcoming trials, says Bassiouni, they will add a few bricks to the rising edifice of international justice just by happening. "International justice is made not only by international tribunals but domestic ones too," he says. "What's important is that the crimes be prosecuted. It is accountability that counts."