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Questions Mount As Saddam's Trial Opens

Posted on: Tuesday, 18 October 2005, 06:00 CDT

By Richard Willing and Steven Komarow

BAGHDAD -- Like many of his countrymen, Wassan Zuhair hates Saddam Hussein, the former leader whose warmaking, Zuhair says, cost him the chance "to enjoy my childhood."

But the 30-year-old bank teller has mixed feelings about Saddam's trial, which begins Wednesday in a specially fortified courtroom in the city's Green Zone.

On the one hand, Zuhair wishes a panel of international judges were trying the former Iraqi dictator. That would avoid the appearance that Saddam's trial will be conducted by aggrieved Iraqis out to wreak vengeance, not deliver justice.

On the other, Zuhair says, Iraq needs to be quick about trying Saddam -- who was captured in December 2003 -- so the nation can move forward. The Iraqi Special Tribunal, he says, is the best bet for that.

"This trial should have been done a long time ago," Zuhair says.

What was once touted as the "trial of the century" won't quite live up to that billing when a panel of five Iraqi judges gavels the court to order at 9 a.m. Baghdad time.

Saddam, whose regime used poison gas against its Kurdish citizens and buried tens of thousands in mass graves, will stand trial for a relatively obscure crime: the deaths of 143 people in Dujail, a Shiite town, in July 1982, hours after an unsuccessful assassination attempt against the then Iraqi dictator.

The court that will try him will not use a panel of judges from the United States and the other nations that contributed coalition forces, contrasting with the approach World War II allies used at the trial of German officials at Nuremberg beginning in 1945. It won't use an international lineup of judges from neutral nations, as United Nations war crimes courts have to try the leaders of Yugoslavia beginning in 1994 and of Rwanda in 2000.

Instead, a panel of Iraqi judges will try something that has never been attempted in any war crimes trial -- the panel will handle the case itself, in a retro-fitted government office in Baghdad's heavily fortified Green Zone, applying a combination of international law and local trial procedures contained in a specially drafted Iraqi statute.

And the court could order a recess after one short session, to delay the trial days or even weeks while Saddam's lawyer studies the case against his client.

"This was built up as a 'trial of the century.' The international community was going to be involved, and expectations were high," says Donna Arzt, a law professor at Syracuse University and a former adviser to a U.N. war crimes court in Sierre Leone. "Now, there are serious questions about its legitimacy. It's starting to look like a vendetta."

An Iraqi trial

American officials say Iraq's go-it-alone strategy is a matter of national pride and necessity. The United Nations, which opposes Iraq's desire to retain the death penalty as an option, has decided not to supply experienced judges, lawyers and courtroom monitors.

"The Iraqis made it very clear that they wanted this to be an Iraqi trial," says Derek Gilman, a Stamford, Conn., lawyer who as a U.S. Army lieutenant colonel in 2003 helped write the law under which the trial will be held. "They said, 'We have suffered the most.' They didn't want an 'American' trial. Their point was, 'This is something we have to do for ourselves.'"

Saddam's trial will focus attention on one of the lesser-known atrocities of his long reign. In July 1982, three years after he took power, the Iraqi leader's motorcade was fired on as it passed through Dujail, about 50 miles north of Baghdad. Saddam was unhurt. Hours later, helicopter gunships flew over the town, spraying citizens with bullets.

On the ground, townspeople were rounded up and murdered or deported, according to Raid Juhi, who as Iraq's chief investigative judge oversaw the investigation.

Six other defendants, including Barzan Ibrahim Hasan, Saddam's half-brother and former intelligence chief, and Awad Hamad al-Bandr, former chief judge of Iraq's Revolutionary Court, also face charges in the incident.

The Dujail case is being brought first because it was the first investigation to be completed, Juhi said. Other more notorious incidents, including the gassing of Kurds in 1988 and the assaults on the "Marsh Arabs" in 1991, remain under investigation. Saddam could be charged later in those episodes, Juhi said -- unless he is found guilty of a crime against humanity and executed for the Dujail massacre.

The 'Al Capone' tactic

"That would be the 'Al Capone' approach," says Mark Vlasic, a Washington attorney who helped train the Iraqi judges in international law. He was referring to the 1931 prosecution of the Chicago organized crime leader for the lesser but more provable crime of tax evasion.

But Saddam's attorney, Khalil al-Dulaimi, says the judge found no evidence Saddam was involved in the investigation of the assassination attempt on him in Dujail. "The judge could not find any presidential order issued by Saddam to kill those people," al-Dulaimi says.

The tribunal that will try Saddam was formed in December 2003, three days before his capture. Its jurisdiction was to include war crimes, crimes against humanity and other violations of international law during Saddam's regime.

The trial will follow procedures common in courtrooms in Arab nations but will apply war crimes law contained in international treaties such as the 1949 Geneva Conventions. Lawyers from the United Kingdom and from the American military and Justice and State Departments are serving as advisers.

Since last year, a figure called the "investigative judge" has been reviewing documents and interviewing witnesses. Earlier this summer, the judge completed an 800-page report on the incident that summarizes evidence. The statute that created the Iraqi Special Tribunal required him to draw up an indictment, which has not been made public, specifying the laws that have been violated.

Under the law, Saddam can be found guilty of war crimes, genocide or crimes against humanity.

After the court convenes, a panel of three judges who will decide the case will review the dossier and decide which witnesses to call. The judges, who will hear the case without a jury, then question the witnesses themselves.

The prosecutor and Saddam's defense lawyer may propose questions for the judges to ask, though they are not required to. The lawyers do not question witnesses.

At the end of the questioning process, Saddam's lawyer and Saddam himself are permitted to address the judges. Judges then decide by a majority vote whether any laws have been violated and pass sentence.

If convicted, Saddam is entitled to an automatic appeal.

"It works very well, (but) it will seem strange to American eyes," says Walid Phares, senior fellow at the Foundation for the Defense of Democracies in Washington, who practiced criminal law in Lebanon under a similar system. "No lawyers doing battle with each other, no O.J.-type trial dramatics."

A trial on trial

The Iraqi trial procedures have drawn fire from some scholars and practitioners of international criminal law.

M. Cherif Bassiouni, who teaches international law at DePaul University in Chicago, says that allowing an all-Iraqi court to apply international war crimes laws creates a legal "hodgepodge." Conducting the trial before Iraq elects a permanent legislature in December also risks making the process seem an "American creation" that is "not legitimate," says Bassiouni, who advised U.S. and Iraqi officials when they were drawing up plans for a special court in 2003.

Richard Dicker, international law director for Human Rights Watch, notes that the New York City-based advocacy group first called for Saddam to face war crimes charges in 1992. Nevertheless, Dicker says, Human Rights Watch will not send observers or expert advisers to help the Iraqi judges because of "serious human rights shortcomings in the structure of the trial."

Among his objections: Saddam wasn't given an attorney until after the investigative judge had begun collecting evidence, undercutting his ability to challenge questionable witnesses. And the standard for proving Saddam's guilt -- that judges must be convinced that the evidence is compelling -- is less than guilt "beyond a reasonable doubt" required by American law.

Iraq's insistence on retaining the death penalty as an option for Saddam and other members of his regime has also cost the tribunal international support.

In 2004, U.N. officials turned down Iraq's request for help training judges and lawyers who would staff the tribunal. The world body cited Iraq's insistence that the death penalty be retained as an option for Saddam and for others convicted of serious violations.

'Fair but fast'

Some Iraqis have no such qualms.

Maha Hussain, a Baghdad native and Iraq democracy activist in Ann Arbor, Mich., says a "fair but fast" trial is in Iraq's best interest. "To the world, it may seem that the (trial) process has only gone on for two years, since (Saddam) was pulled out of that hole (and captured)," says Hussain, a physician at the University of Michigan Comprehensive Cancer Center. "But for the Iraqi people, it is 30 years of nightmare with this man."

In Iraq, some of Saddam's victims say that even a trial and likely execution are more than a brutal ex-dictator deserves.

"Execution is unfair for Saddam," says Kadhum Sha'alan, 70, who says his three sons were tortured and killed by the old regime for being members of the anti-Saddam Dawa Party. "I want his nails to be taken (and) his eyes to be removed again like my sons."

Says Hadiyia Farhan, sister of an executed Dawa Party member: "I want him to be minced like my brother."

Other Iraqis, though, think the trial setup is inherently unfair.

Fadhil Muhsin, a 36-year-old businessman from Ramadi, says that because the Iraqi court has American backing, a verdict against Saddam is certain. "The trial must be international so that it will be fair," he says.

Vlasic, a prosecuting attorney in the ongoing trial of former Yugoslav president Slobodan Milosevic, says international objections to the death penalty and other aspects of the Iraqi court appear to be diversions.

"There may be some anti-Americanism at work here," he says. "Iraq needs help from lawyers and judges experienced in (international war crimes) trials. If you really oppose the death penalty, then help train defense lawyers."

Phares, the former Lebanese lawyer, says that including international judges or advisers on the Iraqi tribunal might have pleased the international community but would have undercut the fledgling Iraqi court system.

"There's an international audience for (the trial), but also a domestic one and an audience within the greater Arab world," Phares says. "(If) the Arab world sees Iraqi trying Iraqi, in an Iraqi courtroom under Iraqi law, it sends a message more powerful than any international court (could send) that a new day truly is here."

John Kunich, an international law specialist at Appalachian College of Law in Grundy, Va., says Saddam's trial has the potential to have an impact similar to last January's vote for an interim Iraqi government.

"This could be another 'purple finger moment,'" Kunich says, referring to the dyed fingers identifying voters that Iraqis displayed as proud symbols of their democracy. "This is really a first in the Arab world, a former leader being called to account for his crimes, in the dock like an ordinary criminal. There's no telling how potent that will be."

Right now, it's unclear how much of Saddam's trial will be seen by the world, at least on TV. Juhi said the proceedings "will be aired, and I hope there will be live coverage." But the tribunal has not announced details about broadcast coverage.

A delayed transmission, noted Vlasic, would allow judges to delete disruptions from Saddam and correct security breaches, such as the inadvertent mention of the name of an anonymous witness.

Judges in the ongoing Milosevic trial have used delayed transmissions to limit grandstanding by the former Yugoslav president, who is serving as his own attorney.

Based on the former Iraqi dictator's appearance in court in July 2004, Iraqi judges have been conditioned to expect the worst. On that day, Saddam was brought to court to be officially informed that an investigation had been begun into crimes committed while he led Iraq. In a loud and sometimes agitated voice, Saddam challenged the jurisdiction of the court and the credentials of the judge, and complained repeatedly about being denied access to a lawyer.

To prepare, Iraqi judges have held mock trials in which Saddam impersonators attempt to cause disruptions. The judges are encouraged, says an American legal adviser, to remove the former dictator from the courtroom if all else fails. The adviser requested anonymity because he is not authorized to speak for the Iraqis.

For all of the criticisms, history at least may judge Saddam's trial kindly. "It may not be perfect, but it's a step forward," says Henry King, a law professor at Case Western Reserve University in Cleveland who helped prosecute German war criminals after World War II. "You're giving (Saddam) a trial, in the country where most of the crimes happened. You're making a formal legal record, you're saying, 'The law of humanity condemns you.'

"That record is what we leave to history. It says as much about what we think of ourselves as people as it does about the leaders we put on trial."

Komarow reported from Baghdad; Willing from Washington.

(c) Copyright 2005 USA TODAY, a division of Gannett Co. Inc.

Source: USA TODAY

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