ICTJ in the News

December 21, 2003

Experts disagree on best venue for trial

The Toronto Star

By Karen Kleiss

By going on trial, Saddam Hussein could teach the Middle East to embrace justice and respect human rights.

The question is: Which courthouse dock will he do it from.

The Iraqi Governing Council and the United States say the trial of the former Iraqi dictator should be conducted by the new Iraqi Special Tribunal, because Iraqi control is crucial to national reconciliation and a key element in building a just new Iraq.

But the United Nations, backed by international human rights advocates, insists that only an international tribunal (like those commissioned to investigate war crimes in the former Yugoslavia, Rwanda and Sierra Leone) would be transparent and free from U.S. intervention, and would ultimately offer Iraqis the untainted truth about their history.

Nearly everyone in the international legal community agrees that a just hearing - one that respects Saddam's right to a fair trial and holds the guilty accountable - is crucial to beginning a new chapter in Iraq's history and an essential part of rebuilding a nation devastated by decades of harsh Baathist rule and international sanctions.

Some experts even say a fair hearing in Iraq could persuade other Middle Eastern states to reconsider their approach to justice and human rights.

"This has the potential to be ... the most important human rights trial since Nuremberg. But whether it is or is not depends on the nature and composition of the tribunal," says Richard Dicker, director of the international justice program at the New York-based Human Rights Watch.

"The stakes here are enormously high."

Those advocating for an Iraqi-controlled trial say the insistence on an international tribunal smacks of judicial colonialism.

"The tribunal should be held in Iraq, by Iraqis," says David Mack, vice-president of the Middle East Institute in Washington and a former U.S. diplomat who served twice in Baghdad.

"For significant parts of the Iraqi population, if this is not an Iraqi trial, they will not view it as satisfactory."

Mack says an international tribunal would leave Iraqis "feeling that they have to always be obedient to an Iraqi strongman or some kind of international regime."

But those who argue for an international trial say the Iraqi judicial system doesn't have the institutional strength or human expertise to handle the complexity of Saddam's trial.

"Look at the reality of this situation and it will become clear that Iraqi capacity has to be built up," says Hanny Megally, director of the Middle East and North Africa division at the New York-based International Center for Transitional Justice.

"There have been studies by both the U.S. Coalition Provisional Authority and by the U.N. that have confirmed that the capacity needs to be built up, and it will take months."

Thirteen American lawyers, including former U.S. district judge Stephen Orlofsky, were sent to Iraq by the Justice Department in May to evaluate the state of the judiciary there.

Yesterday, Orlofsky told the Star that the lawyers' report, which detailed extensive problems in the Iraqi judicial system, hasn't been seen since it was filed in the summer and classified as "sensitive."

Advocates of the international court also raise questions about the statute that created the Iraqi Special Tribunal for Crimes Against Humanity.

They say it's heavily influenced by Iraq's American occupiers (one of the key architects of the statute was U.S.-trained lawyer Salem Chalabi, nephew of Iraqi National Congress leader Ahmad Chalabi) and that it doesn't protect against coercion or require that guilt be established beyond a reasonable doubt.

"It leaves much to interpretation, in light of the general worldwide consensus," says Detlev Vagts, professor of international law at Harvard University.

"One could, with all good will, interpret those things into it, but it could be better."

Critics also point to the fact that the completed statute was presented as law without any consultation with Iraqis themselves.

Three members of the U.S. Congress wrote to L. Paul Bremer III, head of the U.S. administration in Iraq, expressing concern about the "relatively closed, non-transparent legislative process," according to reports from the Boston Globe.

Says Megally: "There was no discussion about the statute in Iraq This trial could be part of the jigsaw puzzle showing that if you have an open, free society, that trials can be conducted properly, fairly, independently and without turning into a bloodbath - that the truth can be brought out and those responsible can be held to account.

"These are very powerful messages, in the region and in the world. The stakes are very high. They need to do it right."