ICTJ in the News

October 21, 2005

ICTJ Op-Ed: Will politics deny Saddam a fair trial?

The Daily Star (Beirut)

By Hanny Megally

The start of the trial of Saddam Hussein and his associates marks the beginning of the most significant and ambitious domestic effort in recent decades to bring perpetrators of mass crimes to justice. By all accounts it will be a mammoth task - and not just because the defendants are charged with crimes including genocide, crimes against humanity, or war crimes. Even before the judges took their seats and the defendants filed into the court room on Wednesday, the Supreme Iraqi Criminal Tribunal already faced an uphill battle in defending its legitimacy, proving its independence, and dealing with myriad legal and administrative concerns.

This is a disappointing situation, worsened by the fact that Iraqis have suffered from more than 35 years of brutal repression during which hundreds of thousands were killed or went missing, millions were forcibly displaced, and countless others were maimed or disabled in arbitrary detention. It may seem puzzling that the court should have any difficulties in successfully trying such massive crimes given that Iraq is an "evidence rich" environment, with some 300 mass graves already located, 50 million documents being sifted through by analysts, and thousands of victims and witnesses who could potentially contribute.

The tribunal's challenges began with the way it was established in December 2003. Set up by the Coalition Provisional Authority, the court seemed to many to be tainted by "victors' justice." Legitimacy questions were further exacerbated by concerns about the court's independence, raised in reaction to the blatant efforts of Iraqi politicians to interfere in its affairs, change its personnel, and even dictate its prosecutorial strategies.

Court officials have themselves complained about politically timed leaks to the media regarding their work, unsubstantiated pronouncements on the start date of trials, and the distribution of unauthorized photos of the detainees. In my discussions with some tribunal officials, they confided their grave concerns about the government's decision to place the court under the supervision of the Higher Judicial Council, a move clearly designed to subject it to political control.

Perceptions of the court have been damaged by its reliance on the United States for assistance, including funding, training, documentary evidence analysis, gravesite exhumations, and prosecutorial strategy development. The figures speak for themselves. The tribunal's annual budget is $15 million while the U.S. budget for assisting it in 2005 is $128 million. To its credit, the court has shown an awareness of this problem and has sought financial and expert international assistance, but its efforts have been stymied by the combination of a deteriorating security situation and the reluctance of many international experts and institutions to assist a court retaining the death penalty and working under the auspices of the U.S. For its part, the court has never shown itself willing to take the further step of including non-Iraqis among its personnel or judges - a move that might have helped quiet concerns about its legitimacy and independence.

The court's statute and rules of evidence and procedures have undergone a lengthy and complicated revision process - best summarized as an exercise in trying to mesh the experiences of other international tribunals with the 1971 Iraqi Code of Criminal Procedure. The result has been an uncomfortable hybrid of common and civil law systems that has left many areas of legal principle and practice unclear.

So, under these circumstances, can Saddam Hussein and his associates receive a fair trial? Throughout the proceedings, the court must ensure that it strictly and meticulously adheres to international fair-trial standards - particularly the rights of the accused.

The court should also carefully develop its media and public outreach strategies and continue to foster as much transparency as possible, resisting the temptation to use the security situation as an excuse to conduct proceedings behind closed doors. It must regularly provide information explaining its goals, policies and strategies to the Iraqi people. Holding these trials in Baghdad is immensely important, but the benefits of doing so will diminish rapidly if the court is so far removed from the lives of average Iraqis that it may just as well be sitting in The Hague.

Finally, the court must remain sensitive to victims' needs. Witnesses must be educated in the legal process so they do not feel exploited. Adequate protections must be provided for those who testify, including specialized support for women and children. A robust witness protection program able to relocate people within and outside Iraq should be set up immediately.

In meeting with the court's judges and prosecutors over the past year, I have been impressed by their bravery and commitment to a fair process, and their awareness of the far-reaching challenges and implications of the tasks that lay ahead of them. By ensuring a fair and transparent process, they may be successful in conducting effective trials and, in so doing, overcome the skepticism and cynicism that has engulfed this process. But under such difficult circumstances, the question that remains is whether the political climate will allow them to do so.

Hanny Megally is director of the Middle East and North Africa program at the International Center for Transitional Justice, which has observers in Baghdad monitoring the Iraqi tribunal trial. He wrote this commentary for THE DAILY STAR.