For the past 18 months, the Iraqi Special Tribunal (IST) for Crimes Against Humanity has emitted conflicting signals regarding the means and process by which it will ultimately bring Saddam Hussein to trial. As a result, there is much skepticism about the IST’s credibility and legitimacy, according to Leila N. Sadat, Ph.D., an expert on international law and international war crimes tribunals and a law professor at Washington University in St. Louis. The ultimate outcome of the trial is difficult to predict, she says, and recent progress in the trial is only raising more questions.
On July 18, 2005, Raid Juhi, chief investigative judge, announced that he had ended his investigation of a case relating to the 1982 killing of as many as 150 residents of the village of Dujail, northeast of Baghdad, and was referring the case against Hussein and other accused to a trial chamber.
“The IST’s decision to take up the Dujail case first, and the establishment of the IST itself, raise very interesting questions of international criminal law and procedure,” said Sadat, the Henry H. Oberschelp Professor of Law. “On the one hand, the decision to proceed with an early trial of Saddam has been welcomed by Iraqi President Jalal Talabani as a means to combat the growing insurgency in Iraq. Indeed, some reports in the media (it is not clear how credible they are) suggest that the Iraqi government wants a quick trial, followed by a quick execution. Others have argued that the IST will be effective and fair in carrying out trials because the judges have been ‘carefully vetted,’ and free from outside political interference. Because the IST has no jurisdiction over crimes alleged to have been committed by U.S. troops during the invasion and occupation of Iraq, however, some observers have sharply contested its legitimacy. ”
Sadat said that a relatively quick trial for the massacre at Dujail might well be one way for the IST to prove its relevancy in a country that looks increasingly headed toward civil war.
“In light of the current political situation in Iraq, the pressure to convict Saddam quickly for any charge that is brought will be extraordinarily high,” she said. “Assuming Saddam is convicted for the Dujail massacre and subsequently executed, it remains to be seen whether any or all of the more serious crimes that he allegedly committed will ever be adjudicated in court, although Judge Juhi has stated that investigations are ‘in their final stages’ regarding the Anfal campaign against the Kurds and other charges as well.”
Sadat said the situation raises the possibility that Hussein will be tried in a series of separate cases, or that new counts will be added seriatim to the Dujail case, raising both due process and political concerns. If Saddam’s trial is perfunctory, and his lawyers cannot put on an adequate defense, it is unclear whether any long-term benefit from the trial will accrue.
Saddam’s defense counsel has been pressing for the proceedings to be moved to either an international tribunal or out of Iraq, arguing that neither they nor their client are safe in Iraq.
“I think that an international or hybrid tribunal would have been the best approach, although it is unclear at this point whether the Iraqi government would allow the loss of face that could accompany such a tribunal’s establishment,” Sadat said. “The tribunal could have been located in a neighboring Arab or Muslim country, not necessarily in the Hague, and the proceedings could have been conducted in Arabic. This would have given the tribunal local legitimacy, removed it from U.S. control, and at the same time avoided enmeshing the tribunal in the volatile politics of post-invasion Iraq, having it perceived as a puppet court, with the U.S. government as the puppet masters, and permitted defense counsel to represent Saddam adequately and effectively, in safety.”
Human rights organizations have criticized the statute for failing to include the requirement that guilt be proved beyond a reasonable doubt; for permitting trials in absentia; and for failing to sufficiently protect both the right to counsel and the right to remain silent.
“Although the right to counsel is granted by the IST rules of procedure, counsel is not mandated to be present at what common law lawyers would regard as the arraignment or indictment phases, meaning that Saddam has been interrogated without defense counsel present,” Sadat says.
“The increasing power of the insurgency in Iraq has the potential to turn an already difficult task into an impossible one. As the trials against Saddam Hussein and his associates move forward, hopefully neither the rights of the accused nor the interests of justice will be sacrificed.”
Sadat is vice-president and co-director of Studies of the American branch of the International Law Association and is the author of the leading treatise on the international criminal court, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, as well as a co-author of a casebook on international criminal law.