Global Policy Forum

By Michael P. Scharf*

After all that's been said and written about Saddam Hussein and his underlings, is a fair trial even within the realm of possibility?

If I had been asked that question a year ago, when I first learned of the Iraqi Special Tribunal, I would have answered an emphatic "no." In fact, I wrote back then that the tribunal would probably be viewed as a "puppet court of the occupying power." Its statute had been drafted during the occupation by the U.S. government, it was being funded by the United States, and its judges were selected by the U.S.-appointed provisional government and assisted by U.S. advisers. All this on top of the fact that, with or without weapons of mass destruction, Hussein has already been tried and found guilty of atrocities in the international court of public opinion.

But that was before I spent a week in London in October, at the invitation of the Justice Department's Regime Crimes Liaison Office in Baghdad, helping to train the Iraqi Special Tribunal judges soon to be on the world stage. My experience there convinced me that I had been wrong about the tribunal.

In the next few weeks and months, we'll find out for certain. Last week, interim Iraqi Prime Minister Ayad Allawi said that pretrial hearings in the war crimes cases against Hussein's senior aides would commence within days. Yesterday, the tribunal held the first such hearing. Two former officials appeared, including Ali Hassan Majeed, the former general and close Hussein confidant known by the nickname "Chemical Ali."

Last Thursday, Hussein and one of his defense lawyers had their first meeting, which lasted four hours. I don't think Hussein's lawyer was wasting his time. It's not that I believe that Hussein will ever walk free, strolling out of the courtroom cleared of all charges. But he could be found not guilty on some of the alleged crimes. As for the rest, just because acquittal is highly unlikely doesn't mean a trial is unfair. What makes a trial fair are fair procedures, judges who can make fair decisions and what lawyers call "equality of arms," meaning that the caliber of the defense team measures up to the ability of the prosecutors.

What I learned in London from the tribunal judges was that all three of those conditions could be met in Iraq. Now the challenge will be to conduct the proceedings in such a manner that the world believes those conditions are present.

Why did I change my mind? First, I learned that the Iraqis had played a greater role in drafting the Iraqi Special Tribunal (IST) statute than had been generally reported. They had insisted, over initial U.S. objections, on the inclusion of a provision (Article 14) that enables the IST to prosecute Hussein for the crime of aggression, in addition to war crimes, crimes against humanity and genocide. The crime of aggression has not been prosecuted since 1945 in Nuremberg. The United States, which itself has been accused of waging unjustifiably aggressive wars, successfully kept it out of the statutes of the Yugoslav tribunal, the Rwanda tribunal, the Special Court for Sierra Leone and the permanent International Criminal Court. Thus the inclusion of this provision was a signal that the IST procedures were not being dictated word for word by Americans.

Second, in this time of insurgency, the tribunal's judges have risked their lives by accepting their commission, thus demonstrating the sort of courage needed to make fair decisions. Most impressive among those I met was Raed Jouhi al-Saadi, the 35-year-old judge who presided over Hussein's initial appearance before the tribunal in June. Because of the extensive media coverage of that event, the judge has become perhaps the most recognized face in Iraq, next to that of Hussein's. The judge told me that he was given the option of not having his face shown on camera during the proceedings, but that he did not want the tribunal to be subject to the type of criticism that has been leveled at courts in Peru and Chile where judges wore hoods. He was willing to put his personal safety at risk to show the "face of Iraqi justice" and the tribunal's commitment to fairness. And his example will be followed by the other judges during the actual trials.

True, the judges lack experience in high-profile cases; the individuals who served as senior judges in the old regime were excluded from this job because they would have been viewed as corrupted or tainted. But there were plenty of experienced criminal judges at the lower levels of the Iraqi judiciary to choose from. While they have never dealt with war crimes or crimes against humanity, the same was true of the judges who were selected to serve on the international war crimes tribunals in The Hague, Arusha, Tanzania; and Freetown, Sierra Leone. Even distinguished international jurists had to undergo training to learn about this highly specialized field of law before they were ready to preside. In London, we did sessions about the laws regarding genocide, crimes against humanity, the crime of aggression, plea bargaining, self-representation and command responsibility.

The appearance of fairness is also important, and on that, the tribunal starts with several counts against it. It lacks the imprimatur of the international community. U.N. Secretary General Kofi Annan, citing concerns about the fairness of the IST procedures and his opposition to the death penalty, forbade the judges of the Yugoslav tribunal from participating on a panel scheduled for the final day of the training conference in London.

The evidence suggests, however, that Annan's actions reflect his desire to make a statement opposing the U.S. invasion of Iraq rather than actual concern about due process. The IST's rules of procedure, which detail the due process rights of the defendants -- including a ban on the use of testimony derived from torture -- were still being developed at the time. As for the death penalty, this was not something that the United States had insisted on, but rather something that all of the tribunal judges agreed was a necessary option, at least for defendants who might be convicted of genocide. Many of the Yugoslav tribunal judges, who had agreed to participate in the training conference before Annan intervened, were themselves opponents of capital punishment, but they decided, as I did, that it was better to help the Iraqi tribunal be as effective and fair as possible than sit on the sidelines hurling criticisms.

As for the third ingredient, the quality of the defense, it is too early to say. On a radio show I took part in recently, a defense lawyer for former Deputy Prime Minister Tariq Aziz complained about being unable to see his client. But he conceded that he had last tried a year and a half ago -- six months before the Iraqi Special Tribunal statute was even promulgated and a procedure set up for the registration of defense counsel. So, it's up to the defense lawyers to register with the tribunal rather than simply challenge its legitimacy. If they don't, the IST plans to appoint defense counsel from the ranks of distinguished Iraqi lawyers.

It has taken more than a year to get to this point, too long in the eyes of some. Yet the actual trials could not begin until after the elections in January 2005, so as not to give the defendants an argument that the tribunal was created in violation of the Geneva Conventions, which prohibit an occupying power from establishing special tribunals. In addition, the rules of procedure needed to be completed, evidence remains to be collected and processed and defense counsel needs to be given a full opportunity to prepare its cases. So far, the pace of setting up the Iraqi tribunal is no slower than that of other war crimes tribunals or of U.S. prosecutions of mob bosses, drug kingpins or terrorists.

While there is a mountain of evidence of atrocities committed by Hussein's regime, the Iraqi judges acknowledged in London that convicting Hussein of some crimes could be difficult. The defense might argue that the prosecution can't prove that Hussein had the intent to commit certain crimes or a clear, direct connection with those crimes. Even with regard to the massacres of Kurds or the Shiite famine that resulted from the draining of the southern marshes, Hussein's defense lawyers might argue that his intent was to suppress an insurrection or flush out insurgents, not to destroy a people. If the evidence bears this out, Hussein might still be convicted of a war crime, but not the more severe charge of genocide. Without much documentary evidence of Hussein's intentions, his subordinates' testimony will be critical.

If charged with the crime of aggression, Hussein might argue the "tu quoque," or "you too," defense, as Germany's Grand Admiral Karl Doenitz did at Nuremberg. Doenitz was accused of waging unrestricted submarine warfare in the Atlantic. His lawyer procured an affidavit from U.S. Admiral Chester Nimitz, who said he had done the exact same thing in the Pacific. In light of this, the Nuremberg tribunal acquitted Doenitz on the ground that the international law outlawing unrestricted submarine warfare was not well enough settled to convict. To make the same point, Hussein may try to cite the international debate over the legality of the U.S. invasion and the continuing inability of the international community to agree on a definition of aggression for use by the permanent International Criminal Court.

In the end, as with the Nuremberg trial 60 years ago, if overwhelming evidence is presented against Saddam Hussein and his lieutenants, it will go a long way to making moot any claims that they did not receive fair trials. The tribunal judges are keenly aware of this and understand that, despite Prime Minister Allawi's desires to speed up the process, there can be no rush to judgment.

About the Author: Michael Scharf is professor of law and director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. He is the author of "Peace With Justice" (Rowman and Littlefield).