War-crimes trials gear up in Iraq

Hussein and others may be tried in next few weeks in cases that will ripple around the world.

With the paint still drying on the walls of the newly constructed Baghdad courthouse, the Iraqi Special Tribunal is counting down to T-day, when it places the alleged perpetrators of the world's most gruesome crimes on trial in front of television cameras for the world to witness.

War-crimes trials for Saddam Hussein and 11 of his Baathist Party cohorts, accused of genocide, crimes against humanity, and other human rights violations, will begin within the next two to four weeks, according to a US government official who works with the Iraqis.

They are crucial for not only bringing these leaders to justice, according to international law and human rights experts. But they are essential to promoting the healing of a population still reeling from war and decades of barbaric rule, and for providing a boost to the new Iraqi government's legitimacy.

"These trials are enormously important because of the scale and gravity of the crimes committed by the Baath Party government in the past, and as a means of bringing some sense of redress to the victims and survivors of the victims across Iraq," says Richard Dicker, director of the international justice program for Human Rights Watch in New York. "They are also important as a way of helping plant respect for the rule of law in a new Iraq."

First case to come up

The first to sit in the dock is likely to be Ali Hassan al-Majid, known as "Chemical Ali," for the role he played in the chemical weapons attacks that killed as many as 100,000 Kurds in northern Iraq in 1988. Then, Barzan Ibrahim al-Hassan al-Tikriti, commander of the Special Republican Guard as well as director of the Mukhabarat, the notorious intelligence service, is expected to be tried for torturing and murdering thousands of people.

Although the courts are set up differently - much to the distress of international law and human rights experts - the cases brought against members of the Hussein regime will parallel in some ways the prosecutions of members of the Slobodan Milosevic regime in the special war crimes tribunal created for the former Yugoslavia. It will be about building responsibility all the way to the top - to Mr. Hussein himself.

"The trick for the prosecutors is not necessarily to prove the crimes were committed but to prove individual responsibility," says Nathan Brown, an Arab world expert at the Carnegie Endowment for International Peace in Washington.

Anatomy of a prosecution

Because the building blocks of the case presentation are so crucial, US government officials say the training and evidence-gathering period for the Iraqi judges, prosecutors, and investigators has been long, but vital. Advisers from the US State Department and Department of Justice (DOJ) have been working with the Iraqi court since it was launched by the US-led Coalition Provisional Authority in December 2003. According to the US official working with the operation, they focused on two levels: the hardware and the people.

A special courtroom had to be constructed. Evidence that had been previously documented had to be collated. Evidence seized by the US military had to be examined. Judges, lawyers, investigators, and document experts had to be vetted and trained. "They don't have a real history of doing this kind of thing," says the US official. "The concept of command responsibility is new to them."

But much progress has been made, the US official says. In addition to the legal training by the DOJ staff, led by Greg Kehoe who has had experience with the tribunal for the former Yugoslavia, the judicial staff has traveled to London, Amsterdam, and Sicily for further training, including mock war-crimes trials.

The suspects are accused of crimes that span 30 years and a broad array of charges - from genocide against the Kurds in the north and the Shia in the south of Iraq, to human rights crimes against the countries of Kuwait and Iran. British advisers to the tribunal say it's important to try those accused for all the crimes at once.

"If you go back to the Nuremberg trials [post-World War II war crimes trials of German Nazis], and ask why they were important, it was not so much for the convictions, but for the fact that the whole story was told," says Charles Garraway, a visiting professor at the US Naval War College in Providence, R.I., who, as a British adviser to the Coalition Provisional Authority, helped write the statute creating the Special Iraqi Tribunal.

Flaws with the process

But it is because the telling of the whole story is so crucial, as well as bringing the accused to justice, that several international law and human rights experts are worried about the viability of the tribunal. They cite a multitude of reasons - from the inclusion of the death penalty to the "opaqueness" of the procedures to due process guarantees. They also worry about compliance with the Geneva Conventions and how US involvement could affect perceptions in a region where trials like these have never been held.

Unlike the war crimes court for the former Yugoslavia, which was created by the international community, the US set up the Iraqi tribunal, with the help of Iraqi leaders. Moreover, the new Iraqi government is basically a transitional regime that will begin drafting a new constitution at about the same time these trials are held.

"The new judges are apparently being trained by professors from the US in how to act like a court," says Jordan Paust, an international law expert at the University of Houston. "That sends up a red flag at least in terms of whether this will function in a way that provides due process. [And] there's a technical legal problem in that there is not a new Iraqi regime - the present leaders are at best a transitional group under an occupation regime. It needs a constitution and then a lawfully elected government."

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