ICTJ in the News

October 20, 2005

After day one, doubts persist about Iraq's tribunal

Reuters

(Carried by ABC, St. Petersburg Times, Wired News, others)

By Luke Baker

BAGHDAD, Oct 20 (Reuters) - Saddam Hussein's trial lasted only a few hours before being adjourned, but it was long enough for international observers to get a taste -- and overall they were left unconvinced about the credibility of Iraq's tribunal.

While praising the efforts of the chief judge, a Kurd with a wry smile and a pleasant manner, legal experts said they were uneasy about how parts of the process unfolded and uncertain whether it would ultimately be seen to be fair and efficient.

Several said the most positive aspect of the trial for crimes against humanity was that it was quickly adjourned, an indication of the extent of their concerns.

"We have our fair trial reservations," said Miranda Sissons, a senior associate with the International Center for Transitional Justice, which offers help to countries dealing with past abuses. Sissons was present in court on Wednesday.

"(The) adjournment gives the Iraqi tribunal the opportunity to address head-on concerns about its ability to conduct a fair trial under independent and legitimate auspices."

The three or so hours that Saddam and seven others spent in court were mostly taken up with the defendants identifying themselves, giving Saddam a chance to showboat about still being president, before the prosecution and defence made remarks.

One of the biggest concerns observers raised was that the chief prosecutor, in his opening statement, was permitted to ramble for 15 minutes, making a sweep of allegations seemingly unrelated to the case at hand. The defence was aghast.

"I was troubled to see the prosecutor make what was effectively a lengthy, pretty political statement that wasn't necessarily legally grounded," said Richard Dicker, director of Human Rights Watch's international justice programme.

"It didn't appear that the defence lawyers, the accused, the prosecutor and the judge were all operating from the same playbook in terms of the rules of the session," he told Reuters.

"There was this sense of an 'anything goes' process, and I wasn't at all encouraged by that."

At the same time, Dicker and others praised efforts by the judge, Rizgar Mohammed Amin, to show fairness and respect to the defendants, and for being patient.

Harangued by Saddam, the grey-haired Amin, seated on a raised dais, smiled and was calm.

"The judge had a light touch and bent over backwards to be polite and respectful," said British lawyer Wesley Gryk, who monitored the proceedings for rights group Amnesty International.

"The prosecutor was more politicised, and there are some concerns about that."

SOME FEARS ALLAYED

Ahead of the court date, promised since virtually the day Saddam was captured in December 2003, commentators had expressed worries about the accused's ability to mount a defence, about the burden of proof and the use of the death penalty.

They also raised the fear that unless it was scrupulously transparent, the tribunal, set up by U.S. authorities during the U.S. occupation, would be seen as little more than a forum for "victor's justice" and open to political interference.

Some of those concerns were set aside after day one -- the adjournment, for example, ensures the defence will have more time to prepare -- but several other problems are written into the tribunal's statutes and will not be changed.

For human rights groups, the fact the death penalty can be imposed and cannot be commuted is unacceptable, and stands in stark contrast to the standards of most international courts.

Proof must also be shown only to the "satisfaction" of the panel of five judges, not "beyond reasonable doubt". And according to tribunal rules, any sentence, including death, must be carried out within 30 days of all appeals being exhausted.

In an effort to show it can handle high-profile cases such as Saddam being tried for crimes against humanity -- and genocide and war crimes in the future -- the tribunal and its American advisers have created a hybrid judicial structure.

They have taken elements of international courts, like that in The Hague, and built them on top of Iraq's criminal codes, creating a potentially strong structure but with rough edges. Dicker would have preferred more international elements.

"A fully internationalised structure would have maximised the chances for a fair and efficient trial, and I say that with all respect for the Iraqi judges," he said.

"The new Iraqi statutes go some way further than Iraqi law in granting rights to the accused ... but they are still deeply flawed. There are enormous questions to be asked."

For many Iraqis, however, even if Wednesday's proceedings didn't look like most Iraqi trials, there was huge relief at seeing their former tormentor in court, and in the end that may go the furthest to ensuring the success of the tribunal.

"Despite shortcomings, it was a momentous day for Iraqis," said Dicker. "It sends a signal that the days of unlimited impunity for these types of crimes may be winding down."