Global Policy Forum

Iraqis Not Ready for Trials; UN to Withhold Training


By Marlise Simons

New York Times
October 22, 2004

A weeklong training session for the Iraqi judges and prosecutors chosen to try Saddam Hussein and his top associates ended in London on Monday with both the Iraqis and their Western advisers agreeing on one thing: The Iraqis are unprepared to tackle full-fledged trials any time soon.

It was equally troubling to many participants that despite invitations to top lawyers and judges from the United Nations war crimes tribunal in The Hague to join the sessions, the United Nations secretary general, Kofi Annan, barred their participation and raised concerns about the tribunal in general. A letter from Mr. Annan's office expressed "serious doubts" that the Iraqi Special Tribunal could meet "relevant international standards." It reiterated his view that the United Nations should not assist national courts that can order the death penalty and said that the organization had no legal mandate to assist the tribunal.

The two developments suggest that despite assertions by the interim Iraqi prime minister, Ayad Allawi, that the trials would begin as early as November, the likelihood of an early start seems remote. American officials here said that some pretrial hearings might take place in December.

The London training session was organized by American lawyers who work with the Iraqi investigators and judges in Baghdad, assisting them in setting up courtrooms and preparing trials. Britain also lent its support, with England's chief justice, Lord Woolf, and a leading human rights lawyer, Judge Geoffrey Robertson, among those addressing the group. The event was not publicized because of security concerns for the 42 Iraqis - almost the entire Iraqi Special Tribunal - who returned home on Monday. Organizers granted a reporter access to the gathering on condition that any article appear after the Iraqis had arrived home.

Gabrielle Kirk McDonald, an American who served both as judge and president of the tribunal in The Hague until 1999, said she had come because she felt a duty to help. She called the hands-off order from the United Nations "a travesty," saying, "This is about judges helping judges, this is not about politics."

But some human rights lawyers agree with Mr. Annan. Richard Dicker, a director of Human Rights Watch, said by telephone that there were still "glaring human rights shortcomings" in the statute of the Iraqi tribunal. For example, confessions obtained through coercion would be admissible as evidence. "In a fair trial, the accused's rights must be respected," Mr. Dicker said, adding, "The first group of accused, including Saddam Hussein, had no access to defense lawyers when they were interrogated nor when they were brought to court on July 1."

At the London meetings, several Western experts said the Iraqis appeared well-informed about their national laws but were unacquainted with the complexities of international law used to deal with mass killing and genocide. The Iraqi judges themselves, in numerous conversations, concurred. Some said they had little grasp of what one called "this whole new body of law."

"This has been very beneficial because these crimes are very new to Iraqi judges," said Raid Juhi al-Saadi, 35, the youngest lawyer here, who became famous when he presided at Saddam Hussein's arraignment on July 1. "We would like more international expertise to assist us," he said. "The literature available to us in Arabic is very limited."

The American organizers of the event said that because of strict security rules the names of other judges could not be revealed. But in private they were willing to discuss their concerns. Judges and prosecutors repeatedly said they wanted more practical training and asked for more material, including samples of investigations and key rulings from The Hague, translated into Arabic.

In one conversation, three judges, who had long careers as military and civilian lawyers, talked about feeling caught between international public opinion and the opinion of Iraqis. They want experienced judges from other nations to sit on the bench with them but fear that many Iraqis will see this as humiliating. "The public will say that outsiders are deciding the process," one of the judges said. Several participants said that involving other countries, and preferably the United Nations, would provide greater legitimacy to the tribunal. "It would stop the impression that the whole thing is run by Americans," said one prosecutor. Supporters of Saddam Hussein and Arab media, he added, "are regularly attacking us on this."

The model for the Iraqi tribunal, conceived in Washington, is to have Iraqi-led trials with American support and foreign advisers. But human rights groups had urged Washington to create a mixed model with international, even United Nations-approved, judges from the start.

There were lively discussions here about Iraq's death penalty, because the judges were aware that the United Nations and many European countries have said they had problems helping a tribunal that could impose capital punishment. "I myself would rather see Saddam go to jail for many years so that future generations can see this," said one Baghdad prosecutor, speaking through a translator. "But we cannot suddenly abolish the death sentence now. The people would be outraged."

The judges and prosecutors grappled with the notion of plea-bargaining, a concept that was foreign to them. After one session, Joanna Korner from Britain, a former senior prosecutor at the war crimes tribunal in The Hague, said she was pleased because "I actually managed to get my judges to understand there is more than one crime against humanity." She was describing the crimes that involve systematic and widespread attacks against a civilian population, which include murder, persecution, mass rape, torture and deportation. Another workshop dealt with the protection of witnesses, both for the prosecution and the defense, clearly an enormous challenge if trials begin in Iraq while the violence continues.

A longtime strategy for the Iraqi Special Tribunal was proposed by Pierre-Richard Prosper, the United States ambassador for war crimes issues, in a closing address. He urged the group to focus on the leadership and send midlevel suspects to ordinary courts in order to lighten their own case load. He also suggested creating a truth commission allowing victims to speak. "Victims badly need to be heard," he said. He told the judges to communicate with the public. "Let the Iraqi people know what you are doing," he said, "and make the public your allies."

Judge Kirk McDonald offered some solace to the group, some of whom seemed awed by the tasks ahead. "Ten years ago, we were exactly where you were, starting a tribunal, with no experience," she said. "You'll design your own court as you want it. My advice is: Transparency, transparency, transparency."

More Information on International Justice
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