December 19, 2003

Saddam Hussein?s Trial

HUMAN RIGHTS WATCH

Saddam Hussein?s Trial

Bringing Justice for the Human Rights Crimes in Iraq?s Past

December 2003

Iraq under the rule of Saddam Hussein witnessed extraordinarily serious human rights crimes. Human Rights Watch has documented genocide, crimes against humanity, and war crimes in its several investigative reports on Iraq over the years. But now that Saddam Hussein has been apprehended, the question has grown more urgent: how will the crimes of the past be prosecuted?

Human Rights Watch recommends that a mixed domestic-international tribunal should prosecute Saddam Hussein. Click here to read more about what that means.

Justice for past crimes in Iraq is essential. The victims and their families deserve nothing less. To bring the perpetrators to account for their crimes will help build respect for the rule of law in Iraq ? an important part of reconstructing the country.

At the same time, any trial of Saddam Hussein and others accused of these crimes should respect the rights of those being tried, and should operate efficiently and effectively. This will help to ensure that the trials are seen as legitimate and credible in Iraq, in the region, and in the world.

This background paper talks about:

Different Types of Tribunals ? What are the Options?

A very important question now facing Iraq, and the occupying powers in Iraq, is what kind of court should prosecute Saddam Hussein and others. There are basically three options:

The new International Criminal Court is not an option, in part because it cannot prosecute crimes committed before July 1, 2002. Most of the serious crimes in Iraq?s past were committed before then. But it?s important to note that the International Criminal Court (ICC) was created precisely for situations like this one: tyrannical rulers should be brought to justice for their crimes, but after they?ve fallen from power, they often leave behind a judicial system in shambles. The fact that the ICC now exists, with a chief prosecutor, judges, and investigators based in The Hague, may help to deter serious human rights crimes like the ones that Iraq has suffered.

A national court, with Iraqi prosecutors and judges

When national authorities can hold fair and effective trials, that is generally the best option. The trials are more accessible to the victims and their families. National judges and prosecutors help create a feeling of ?ownership? of the important process of accountability.

But traditionally, criminal trials in Iraq have been very brief proceedings, lasting only a few hours, or at most a few days. Indeed, sometimes people accused of committing crimes were thrown into prison without any trial at all, or even executed on the spot.

Iraqi jurists (judges, prosecutors, lawyers, and others in the judicial system) do not have the experience needed to conduct a trial that is as complicated as the trial of Saddam Hussein, and others accused of serious human rights crimes, is likely to be. For this reason, the new ?Iraqi Special Tribunal for Crimes Against Humanity? gives a lot of cause for concern.

The international courts formally established by the United Nations Security Council, and the mixed domestic-international courts, have given international judges and prosecutors a lot of experience in trying very serious human rights crimes. This experience should not be wasted.

An international court formally established by the United Nations Security Council

Following the genocides in Bosnia and Rwanda, the United Nations Security Council passed resolutions establishing the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These courts are staffed primarily by international judges, prosecutors, and court personnel. For political and security reasons, they were located outside the countries where the crimes occurred ? the ICTY is in The Hague and the ICTR is in Arusha, Tanzania. That has made the proceedings less accessible to victims, their families, and those in whose names the crimes were committed. These tribunals have generally performed capably, but they have been very expensive and trials have progressed slowly.

Members of the U.N. Security Council are not likely to create such a tribunal for Iraq. If the Security Council had done so several years ago, it might have sent a signal to the world, and to the Iraqi people, that such crimes would never be tolerated by the international community.

A mixed domestic-international court

The main example of this type of tribunal so far is the Special Court for Sierra Leone (SCSL). The SCSL is run by both international and Sierra Leonean judges, prosecutors, and staff. They are examining serious violations of international humanitarian law, or the laws of war, committed after November 1996 in Sierra Leone?s horrific civil war. The SCSL is expected to try about twenty people, from all warring factions, who bear the greatest responsibility for such crimes. Trials will probably begin in early 2004.

In August 2002, the SCSL indicted then-president of Liberia, Charles Taylor, for his role in the Sierra Leone conflict. Taylor subsequently left office and fled to Nigeria, which has so far refused to hand him over to the SCSL.

About the Sierra Leone model

The SCSL started operations in July 2002 and has indicted thirteen people from all warring factions for war crimes, crimes against humanity, and other serious violations of international humanitarian law. Some key components of the SCSL are:

The court is based in Freetown, Sierra Leone.
The court was created by joint agreement between Sierra Leone and the United Nations.
The Statute and Rules of Procedure and Evidence are based on international standards, and prohibit the death penalty as an option for punishment.
All organs of the court are staffed by Sierra Leonean and international staff.
- The Trial Chamber is composed of two Sierra Leonean judges and one international judge. The Appeals Chamber is composed of two Sierra Leonean judges and three international judges.
- In the Office of the Prosecutor, approximately half of the investigations staff and one-third of the prosecution staff are Sierra Leonean.
- In the Defense Office, responsible for the management of legal representation to indigent accused, there are numerous Sierra Leoneans. Several defendants are represented by Sierra Leonean lawyers.
- Within the Registry, responsible for the overall administration and servicing of the Court, most of the administrative staff are Sierra Leonean.
The U.N. Mission in Sierra Leone provides some security and other support.
The court does not have Security Council Chapter VII enforcement powers to compel cooperation with the SCSL from other countries.
The court is funded through voluntary contributions as opposed to mandatory assessed U.N. dues.

For Iraq, Human Rights Watch favors a mixed domestic-international tribunal, established by the United Nations. Click here to find out why.

The new ?Iraqi Special Tribunal? is sometimes described as a mixed domestic-international tribunal, but this is not correct.

Flaws in the New ?Iraqi Special Tribunal?

The ?Iraqi Special Tribunal for Crimes Against Humanity? (Iraqi Special Tribunal) was created by the Iraqi Governing Council in December 2003. It is fundamentally different than the Special Court for Sierra Leone, discussed above. The SCSL was established by joint agreement between the government of Sierra Leone and the United Nations, while the Iraqi Governing Council established the Iraqi Special Tribunal under an occupation and without participation by the United Nations.

The Iraqi Special Tribunal does not provide for Iraqi and international judges and prosecutors to work together to try cases. Instead, all prosecutors and investigative judges are required to be Iraqi nationals. The law allows for the possibility of appointing non-Iraqi trial and appeals chamber judges, but only if the Iraqi Governing Council approves. The Iraqi Special Tribunal law also provides for some international advisors and monitors, but this is not comparable to appointing international judges and prosecutors with relevant expertise to work alongside Iraqi jurists.

The procedures for trials provided for in the Iraqi Special Tribunal law also have numerous problems. There is no requirement of proof beyond a reasonable doubt and the death penalty is permitted. The 1971 Iraqi criminal procedure law could be used, permitting the tribunal to use confessions obtained through ?physical coercion? and to hold closed trials.

The Iraqi Governing Council issued the Iraqi Special Tribunal law without any opportunity for broad consultation or public comment. Human Rights Watch believes that the drafting of the tribunal law should have been transparent to help ensure a legitimate and credible accountability process.

Iraqi jurists and international specialists should work together to recommend the most appropriate form of a tribunal to try the most serious past crimes committed in Iraq. Human Rights Watch has recommended that the Iraqi Governing Council partner with the United Nations to form a mixed Iraqi-international Group of Experts. A mixed Group of Experts would allow Iraqi jurists to use existing international experience to develop a tribunal that will operate fairly and effectively.

Why Human Rights Watch Favors a Mixed Domestic-International Tribunal Established by the United Nations

Any tribunal prosecuting Saddam Hussein, or others accused of serious human rights crimes, must have the necessary expertise to try these crimes in accordance with international criminal, human rights, and humanitarian law. But such a tribunal should also have the participation of Iraqis, and be accessible to the Iraqi people.

The capacity of future domestic courts can be strengthened by having national staff working alongside internationals with expertise in prosecuting these types of cases. A mixed domestic-international tribunal in Iraq could leave a truly positive legacy.

A mixed domestic-international tribunal could hold trials in Iraq, use Arabic as its official language, and apply the relevant provisions of Iraqi law as well as international law. All of these elements would help to ensure the legitimacy and credibility of the tribunal?s proceedings.

A tribunal for serious past crimes in Iraq should not replicate exactly the Sierra Leone Special Court. The victims in Iraq are much more numerous: Human Rights Watch estimates that as many as 290,000 people were killed under the rule of Saddam Hussein. A tribunal for serious past crimes in Iraq should not be limited to only a handful of alleged perpetrators, or prosecute only those bearing the greatest responsibility, like the Sierra Leone Special Court.

The United Nations should be involved in the set-up and operation of the tribunal. A tribunal for Iraq should be funded by contributions required of all U.N. members or some other mandatory funding process, rather than relying on voluntary contributions from a small number of states. The decision to fund the SCSL through voluntary contributions has left it in a precarious financial predicament. It would also be preferable for a mixed tribunal for Iraq to be authorized by the Security Council. This would enable the Security Council to require cooperation with the tribunal from other countries. This will be important for compelling custody over persons outside Iraq.

Related Material

Background on the Crisis in Iraq
Special Focus,

International Justice and Sierra Leone
Special Focus,

Memorandum to the Iraqi Governing Council on ?The Statute of the Iraqi Special Tribunal?
Memorandum, December 17, 2003

International Justice and Iraq
Special Focus,

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December 17, 2003

Who will testify at Saddam's trial?

Joe Conason - The New York Observer

12.17.03 - President George W. Bush and the provisional Iraqi authorities have promised that before Saddam Hussein is executed, he will most certainly receive a fair trial. Conveniently enough, the Iraqis set up a war-crimes tribunal in Baghdad for this purpose just last week. So sometime after Saddam's Army interrogators are finished sweating the old monster, the preparations shall begin for what promises to be a courtroom spectacular.

Advocates of human rights and international law hope that the prosecution of Saddam will improve somewhat upon his regime's standard of criminal justice, which generally entailed horrific torture followed by confession and punishment. They have urged that Saddam's trial be conducted with complete fairness and transparency. Ahmed Chalabi, the Pentagon's favorite member of the Iraqi Governing Council, says that Saddam must be afforded the lawful treatment he denied his victims.

Those laudable aims presumably require that he be permitted to defend himself legally, no matter how indefensible he actually is. Human Rights Watch, which demanded action against Iraqi atrocities before such concerns became fashionable in Washington, now insists that the captured dictator "must be allowed to conduct a vigorous defense that includes the right to legal counsel at an early stage."

Apart from blaming his underlings for the genocidal crimes on his indictment, what defense can he (or his lawyers) offer? Following in the style of Slobodan Milosevic, he may well wish to spend his final days on the public stage bringing shame to those who brought him down.

Unfortunately, it isn't hard to imagine how he might accomplish that if he can call witnesses and subpoena documents.

Charged with the use of poison gas against Kurds and Iranians during the Iran-Iraq war, Saddam could summon a long list of Reagan and Bush administration officials who ignored or excused those atrocities when they were occurring.

An obvious prospective witness is Defense Secretary Donald Rumsfeld, who acted as a special envoy to Baghdad during the early 1980's. On a courtroom easel, Saddam might display the famous December 1983 photograph of him shaking hands with Mr. Rumsfeld, who acknowledges that the United States knew Iraq was using chemical weapons. If his forces were using Tabun, mustard gas and other forbidden poisons, he might ask, why did Washington restore diplomatic relations with Baghdad in November 1984?

As for his horrendous persecution of the Kurds in 1988, Saddam could call executives from the banks and defense and pharmaceutical companies from various countries that sold him the equipment and materials he is alleged to have used. He might put former President George Herbert Walker Bush on the witness stand and ask, "Why did your administration and Ronald Reagan's sell my government biological toxins such as anthrax and botulism, as well as poisonous chemicals and helicopters?"

Saddam could also subpoena Henry Kissinger, whose consulting firm's chief economist ventured to Baghdad in June 1989 to advise the Iraqi government on restructuring its debt. "After my forces allegedly murdered thousands of Kurdish civilians in 1988," he might inquire, "why would you and other American businessmen want to help me refinance and rearm my government?"

Indeed, Saddam could conceivably seek the testimony of dozens of men and women who once served in the Reagan and Bush administrations, starting with former Secretary of State George Shultz, and ask them to explain why they opposed every Congressional effort to place sanctions on his government, up until the moment his army invaded Kuwait during the summer of 1990. Pursuing the same general theme, he might call Vice President Dick Cheney, who sought to remove sanctions against Iraq when he served as the chief executive of Halliburton Corp.

The long, shadowy history of American relations with Saddam would be illuminated not only through witness testimony but literally thousands of documents in U.S. government files. Memos uncovered by the National Security Archive show that Reagan and Bush administration officials knew exactly how the Iraqi government was procuring what it needed to build weapons of mass destruction, including equipment intended for construction of a nuclear arsenal.

From time to time, during those crucial years when Saddam consolidated his power and prepared for war, U.S. diplomats issued rote condemnations of his worst actions. Then, as the record shows, they would privately reassure Saddam that the United States still desired close and productive relations. The other governments that were Saddam's accomplices include both opponents and supporters of this administration's pre-emptive war -- from France, Germany and Russia, to Japan, Italy and the United Kingdom.

Pertinent as these issues are to Saddam's case, they do not mitigate his record of murder and corruption. And the man dragged from his pathetic hideout near Tikrit hardly seems to possess the will or the capability to raise them. Either way, he will get what he deserves. Yet it will be hard to boast that justice and history have been fully served if his foreign accomplices escape their share of opprobrium.

URL: http://www.workingforchange.com/article.cfm?ItemID=16159

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Memorandum to the Iraqi Governing Council

on ?The Statute of the Iraqi Special Tribunal?

December 2003

Introduction

Human Rights Watch acknowledges the Iraqi Governing Council?s expressed dedication to accountability for serious crimes committed by the former Iraqi leadership. Human Rights Watch believes that justice for serious past crimes is essential, for the victims and their families against whom the crimes were committed and for building respect for the rule of law in Iraq.

Over the years, Human Rights Watch has documented human rights violations in Iraq and pressed for justice for these crimes. We have conducted numerous interviews, collected eyewitness accounts, engaged in forensic exhumations and research missions, and published extensive reports on human rights violations. We played a particularly active role in documenting crimes committed as part of the Anfal campaign in 1988. In 1992, we obtained and analyzed eighteen metric tons of Iraqi state documents. In 1994 and 1995, we urged states to bring a case against Iraq for genocide against the Kurds before the International Court of Justice.

In our recent discussions in Baghdad, many Iraqis explained that justice for serious past crimes is of the utmost importance to ensure that the deeds committed under Saddam Hussein?s rule are exposed to the world. Most Iraqis we spoke with felt strongly that those responsible for the worst crimes must be held to account for the decades of suffering that they caused.

To achieve these goals, it is crucial that trials for gross human rights violations respect the most fully developed standards of international law, and operate efficiently and effectively. This will help to ensure that the trials are seen as legitimate and credible in Iraq, in the region, and in the world. We believe an accountability process in accordance with international fair trial standards will also help to build respect for the rule of law in Iraq.

The international community has gained considerable expertise in the various options for prosecuting persons suspected of genocide, crimes against humanity, and war crimes. This includes expertise obtained through efforts to bring those responsible for the worst human rights violations to justice in the former Yugoslavia, Rwanda, and Sierra Leone. Human Rights Watch has suggested that a mixed Group of Experts comprised of Iraqi and international specialists be created to recommend appropriate accountability mechanisms for more serious and lesser offenders and to facilitate the collection and preservation of evidence. We believe this mechanism would allow Iraqi jurists to leverage the existing international knowledge to ensure a legal process that is maximally effective.

We acknowledge that the Iraqi Governing Council has issued a statute to create an ?Iraqi Special Tribunal for Crimes Against Humanity? (?Special Tribunal?) to investigate and prosecute serious past crimes without the benefit of a mixed Group of Experts. We do not believe this course of action is the most appropriate to ensure that justice is done.

We have significant concerns about the lack of consultation in the drafting of this law. No transparent process for eliciting comments or expertise was established. Despite Human Rights Watch requests to comment on the law in draft form, neither the Coalition Provisional Authority nor the Iraqi Governing Council would provide Human Rights Watch with a copy of it. We believe that the lack of transparency in the drafting of the law may have been among the reasons for the serious gaps in human rights protections in the text that we elaborate below.

There are also important questions concerning the legitimacy under international law of establishing a domestic tribunal like this during an occupation. Significant issues may arise as to whether the justice delivered under the present circumstances will be seen to be fair. We also have concerns, which we discuss below, about moving forward with a tribunal located in Iraq under the current security situation.

While retaining our reservations, we will engage constructively on ?The Statute of the Iraqi Special Tribunal? (?Statute?). The grievous nature of the crimes committed, our historic involvement in pressing for justice for these crimes, and the importance of the trials to Iraq?s post-conflict transition reinforce Human Rights Watch?s commitment to taking all available steps to ensure that the most credible trials possible are conducted.

We believe a Statute and rules of procedure and evidence that are consistent with international standards and include provisions to maximize the efficiency and effectiveness of the Special Tribunal are essential. However, this is only a first step to achieving legitimate and credible trials. The real test will be the fair and effective application of these instruments in practice. This may pose a far more difficult challenge. It will be through the implementation of these instruments that the commitment to justice and accountability in Iraq will be realized.

The Statute includes a number of provisions that are important for effective and efficient trials held in accordance with international human rights, criminal, and humanitarian law. However, other provisions are inadequate to achieve these standards. In our comments, we highlight those areas where we have the greatest concern and set forth recommendations on how the Statute should be amended to address these concerns. This memorandum organizes its discussion into issues relevant to (A) Judges and Prosecutors, (B) Rights of the Accused, (C) Substantive Offenses, (D) Victims and Witnesses, and (E) Vetting and Security. This memorandum is not intended to be an exhaustive analysis. It does not discuss the legitimacy under international law of establishing a tribunal to address serious past crimes in Iraq during an occupation.

A. Judges and Prosecutors

The impartiality, independence, and competence of Judges and Prosecutors are fundamental elements of trials that comply with international fair trial standards. Article 14(1) of the International Covenant on Civil and Political Rights (?ICCPR?) requires that ?everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.?¹ (emphasis added.) The U.N. Guidelines on the Role of Prosecutors, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990, require under Guidelines 1 and 13(a) that Prosecutors ?shall be individuals of integrity and ability, with appropriate training and qualifications,? and should ?carry out their functions impartially.?

Independence of Judges and Prosecutors requires that they must operate independently from the government or other authorities such as those of an occupying power, individuals, public opinion, the media, foreign countries, or international institutions. Impartiality requires that Judges and Prosecutors apply the law equally to all, not adversely discriminate on any ground including nationality, ethnicity, religion, political views or other beliefs, and not participate in any case where they are unable to be impartial.

1. Judges and Prosecutors should be required to be impartial and independent.

We note the requirement that Investigative Judges and Prosecutors act independently and be prohibited from seeking or receiving instructions from any official or other source, pursuant to Articles 7(j) and 8(b) of the Statute. We are concerned by the absence of this requirement for Trial and Appeals Chamber Judges. We recommend that Article 4 of the Statute be amended to provide that Judges appointed to Chambers must act independently and not seek or receive instructions from any government or other source, including the Iraqi Governing Council.

We note the requirements that both Trial and Appeals Chamber Judges and Investigative Judges appointed to the Chambers must have high moral character, impartiality, and integrity pursuant to Articles 5(a) and 7(d) of the Statute. We recommend that Article 8 of the Statute be amended to provide that Prosecutors be required to have high moral character and impartiality as well.

The Statute of the Special Court for Sierra Leone (?SCSL?), under Article 15(3), and the Statute of the International Criminal Tribunal for the Former Yugoslavia (?ICTY?), under Article 16(4), both require that the Prosecutor ?shall be of high moral character.? Under Article 42 of the Rome Statute of the International Criminal Court (?ICC?), the Prosecutor and Deputy Prosecutors are required to be ?persons of high moral character,? and ?[n]either the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground.?

Trial and Appeals Chamber Judges, Investigative Judges, and Prosecutors should be disqualified from cases where their impartiality or independence may reasonably be doubted. We note that Articles 5(f), 7(m), and 8(f) of the Statute provide that Trial and Appeals Chamber Judges, Investigative Judges, and Prosecutors may be ?disqualified? from the Special Tribunal in certain circumstances (?removal?). However, the Statute fails to require disqualification from a particular case, as opposed to removal from the Special Tribunal, where impartiality or independence is not ensured. We recommend that the Statute be amended to require that Trials and Appeal Chamber Judges, Investigative Judges, and Prosecutors be disqualified from any case in which their impartiality or independence might reasonably be doubted on any ground including if they:

Were involved in any capacity in a case at the Special Tribunal or a related criminal case at the national level involving the person being investigated or prosecuted;
Had a personal interest in the case, including a personal or professional relationship with any of the parties;
Performed functions prior to taking office in which an opinion on the case or the parties or their legalrepresentatives could be formed that reasonably could affect impartiality; or
Expressed opinions, through media, writing or public actions, that reasonably could affect impartiality.

We recommend that the Statute be amended to provide that decisions to remove or disqualify Judges?including the President of the Chambers?and Prosecutors, be taken by a majority of the permanent Judges of the Special Tribunal. We recommend that the Statute?s provisions regarding removal of the President of the Special Tribunal pursuant to Article 5(f)(3) of the Statute be amended to require that a decision to remove the President from the Special Tribunal be taken by the Governing Council only upon the recommendation adopted by a majority of the permanent judges.We further recommend that the Statute be amended to require that an Investigative Judge, Trial or Appeals Chamber Judge, or Prosecutor subject to disqualification or removal be entitled to present his or her comments on the matter, but that he or she does not participate in the decision.

We believe that such provisions will help to safeguard the fairness of these procedures. Several of the provisions on disqualification and removal described in this section are codified in Rule 15 of the ICTY, SCSL, and the International Criminal Tribunal for Rwanda (?ICTR?) Rules of Procedure and Evidence. Similar provisions are also codified in Articles 41, 42, and 46 and Rule 34 of the Rome Statute and the ICC Rules of Procedure and Evidence.

2. Some Judges should be required to have experience managing complex criminal trials and trials involving serious crimes.

Articles 5(a) and 7(d) of the Statute require that Investigative Judges and Judges appointed to Chambers possess ?the qualifications required for appointment to the highest judicial offices,? and that ?due account shall be taken of the experience of the judges in criminal law and trial procedures.? These provisions are inadequate to ensure that Trial and Appeals Chamber Judges and Investigative Judges have relevant experience to ensure that the tribunal is competent as required under Article 14 of the ICCPR.

Trials for genocide, war crimes, and crimes against humanity may be extremely complex. This is due, among other reasons, to the systematic nature of many of these crimes involving numerous persons and underlying acts. The analysis of large amounts of documentary, forensic, and testimonial evidence and classification of evidence by crime scenes, type of crime, and perpetrator may be an extraordinarily complicated undertaking. It may be necessary to build extensive databases with sophisticated cross-referencing capacities.

The Investigative Judge?s ability to conduct an investigation that assembles the necessary evidence to establish criminal responsibility will profoundly affect whether or not those who are responsible for the crimes are convicted and their grievous crimes exposed. The capacity of Trial Judges to examine witnesses and manage the courtroom and for Trial and Appeals Chamber Judges to assess evidence and apply the relevant law will be crucial in ensuring that the proceedings are efficient and fair.

We recommend that the Statute be amended to require that Investigative Judges and Trial and Appeals Chamber Judges have relevant experience to ensure that the Special Tribunal can effectively investigate and adjudicate cases involving serious past crimes. In this regard, we recommend that:

Article 5(a) of the Statute be amended to require that at least some of the Judges who are appointed to each Trial Chamber and the Appeals Chamber be required to have experience adjudicating complex criminal trials and cases involving international humanitarian, human rights, and criminal law; and
Article 7(d) of the Statute be amended to require that at least some of the Investigative Judges who are appointed to the Special Tribunal have experience conducting complex criminal investigations and cases involving international humanitarian, human rights, and criminal law.

Criminal trials in Iraq traditionally have involved only brief proceedings, lasting anywhere from a few hours to a few days. Moreover, the isolation of Iraqi jurists from the outside world during Ba?ath Party rule restricted access to jurisprudence and practice on international criminal and humanitarian law that has emerged in the past decade. At the same time, international judges have gained experience working on cases involving serious crimes at the ICTY, SCSL, and ICTR. Accordingly, we recommend that the requirement that judges appointed to Chambers be Iraqi nationals under Article 28 of the Statute be amended to permit non-Iraqi nationals who have relevant expertise to be appointed as Trial and Appeals Chamber Judges and Investigative Judges.

We note that under Article 4(d) of the Statute, the ?Governing Council, if it deems necessary, can appoint non-Iraqi judges who have experience in the crimes encompassed in this statute, and who shall be persons of high moral character, impartiality and integrity.? (emphasis added.) This provision is not sufficient to ensure that at least some jurists with relevant experience trying complex criminal cases and cases involving serious crimes sit on each judge panel.

Allowing non-Iraqi nationals to sit as Judges on the Special Tribunal alongside Iraqis will not cede ownership over the Special Tribunal?s decisions to outsiders. Instead, such participation will complement the knowledge and expertise of Iraqi professionals to ensure that the accountability process achieves its desired objectives. The sharing of expertise between Iraqi and international professionals will also enhance the capacity of the Iraqi justice system more generally.

We note that the Statute also mandates that non-Iraqi nationals be appointed to the Chambers and Tribunal Investigative Judges ?to act in advisory capacities or as observers? under Articles 6(b) and 7(n). We believe that advisors and observers can play an important role in supporting the work of the Special Tribunal. However, advising and observing simply is no substitute to appointing Trial or Appeals Chamber Judge, or an Investigative Judge with relevant experience sharing responsibility for adjudicating and investigating these cases. We strongly recommend that the non-Iraqi advisors and observers be appointed in addition to some Trial and Appeals Chamber Judges and Investigative Judges with relevant experience.

We also believe that the advisors and observers appointed to the Chambers and Tribunal Investigative Judges should provide as much substantive assistance as possible to ensure that the Special Tribunal applies the most fully developed standards of international law. Articles 6(b) and 7(n) of the Statute require that the role of non-Iraqi nationals appointed as advisors and observers will be to:

?[P]rovide assistance to the judges with respect to international law and the experience of similar tribunals (whether international or otherwise), and to monitor the protection by the Tribunal of general due process of law standards;? and
?[P]rovide assistance to the Tribunal Investigative Judges with respect to the investigations and prosecution of cases covered by the this Statute (whether in an international context or otherwise), and to monitor the protection by the Tribunal Investigative Judgesof general due process of law standards.?

We recommend that Articles 6(b) and 7(n) of the Statute be amended to require that the advisors and observers provide assistance specifically on international human rights, criminal, and humanitarian law to the Chambers, and to the Tribunal Investigative Judges in addition to assistance in investigations and prosecution of cases. We believe that this will help enable the advisors and observers to more fully support the Special Tribunal.

3. Some Prosecutors should be required to have experience prosecuting complex criminal cases and cases involving serious crimes.

The Statute fails to ensure that Prosecutors have relevant experience to prosecute serious past crimes. In fact, it is devoid of any requirements regarding experience of Prosecutors.

The ability of the Prosecutor to mount a focused prosecution strategy will be crucial to ensure the effectiveness of the trials. Experience at the ICTY and the ICTR has shown that failure to develop such strategies can hinder prosecution of important suspects as scarce resources are expended on less significant cases. To help ensure a successful prosecution strategy, we recommend that Article 8 of the Statute be amended to require that at least some Prosecutors have experience prosecuting complex criminal cases and cases involving international human rights, humanitarian, and criminal law. Accordingly, we recommend that Article 28 of the Statute be amended to provide that Prosecutors may be non-Iraqi nationals. We believe that permitting some non-Iraqi nationals with relevant experience to be appointed as Prosecutors will enable Iraqi Prosecutors to complement their knowledge with international expertise gained from prosecuting serious crimes.

Article 8(j) of the Statute provides that non-Iraqi nationals must be appointed as advisors and observers to ?provide assistance to the prosecutors of the Tribunal with respect to the investigations and prosecution of cases covered by this Statute (whether in an international context or otherwise), and to monitor the performance of the Prosecutor.? As with Judges, the appointment of advisors and observers to the Prosecutions Department by itself is insufficient to assure effective prosecutions. We strongly recommend that non-Iraqi advisors and observers be appointed in addition to some Prosecutors with specific experience prosecuting genocide, war crimes, and crimes against humanity cases.

We believe that advisors and observers appointed to the Prosecutions Department should be utilized as much as possible to provide assistance regarding the most fully developed standards of international law. We recommend that the Statute be amended to require advisors and observers to provide assistance in international human rights, criminal, and humanitarian law, in addition to assistance in investigations and prosecutions.

4. Appellate and review proceedings should maintain efficiency, independence and impartiality.

We note that Article 7(k) of the Statute permits appeals of decisions by a Tribunal Investigative Judge and Article 25(a) of the Statute permits appeals from ?persons convicted by the Trial Chambers? or from the Prosecutor. We believe that limiting appeals of decisions at trial to persons who are convicted or the Prosecutor will undermine the efficiency and fairness of proceedings. It could allow decisions at the early stages of the trial that will later be reversed to affect the course of the entire trial. We recommend that the Statute be amended to permit appeals to the Appeals Chamber with regard to the following decisions during trial prior to a final verdict:

A decision with respect to jurisdiction or admissibility;
A decision granting or denying release of the person being prosecuted; and
A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.

Additionally, we believe that safeguarding the independence of proceedings requires that Judges appointed to the Appeals Chamber should not be permitted to review cases that they heard at trial. Article 4(c)(i) of the Statute addresses this in part by requiring that ?[n]o member of any Trial Chamber can simultaneously be a member of the Appeals Chamber or a Tribunal Investigative Judge.? We recommend that this provision be supplemented to require that no member of a Trial Chamber to which a case is or has been assigned be permitted to hear appeals of decisions from that case.

5. The Prosecutor should have a greater role in the preparation of the indictment.

As discussed above, we believe the prosecution strategy must be well tailored to secure convictions of those who are responsible for the most serious crimes. We note that Article 8(h) provides that Prosecutors ?shall have the right to be involved in the investigative stages of a case and shall be the individual who prosecutes such case [?].? Under Article 18(d) of the Statute, ?[u]pon a determination that a prima facie case exists, the Tribunal Investigative Judge shall prepare an indictment [...].? Under Article 19(a) of the Statute, ?[i]f the Chief Tribunal Investigative Judge issatisfied that a prima facie case has been established by the Tribunal Investigative Judge, then he/sheshall confirm the indictment.?

We believe that the Prosecutor should have a greater role in the preparation of the indictment to ensure that the Prosecutor can implement a successful prosecution strategy. Accordingly, we recommend that Articles 18 and 19 of the Statute be amended to require that the Investigative Judge prepare the indictment in consultation with the Prosecutor.

B. Rights of the Accused

We acknowledge the inclusion of many of the international fair trial standards for protection of the accused as enshrined in Article 14 of the ICCPR under Article 20 of the Statute. However, numerous human rights protections are absent from the Statute, particularly protections at the early stages of proceedings.

Given the nature of the crimes in question, the trials are likely to be highly charged and to elicit powerful emotions. As a result, the Special Tribunal will need to take every precaution to ensure that the rights of the accused are safeguarded from the earliest moment. We believe that the Special Tribunal should adopt and apply the highest standards of international human rights in its treatment of accused, including those contained in the Universal Declaration of Human Rights; the ICCPR; the U.N. Standard Minimum Rules for the Treatment of Prisoners adopted by the U.N. Economic and Social Council in 1957; and the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the U.N. General Assembly in 1988.

Explicitly incorporating the protections contained in these instruments into the Statute will significantly contribute to the fairness of the proceedings, and the perception that the trials are legitimate and credible. Below, some of the protections lacking in the Statute that pose the greatest concern are discussed.

1. Persons under investigation or subject to questioning should be entitled to fundamental guarantees.

The Statute provides only limited explicit protections for individuals at the early stages of proceedings, specifically during investigation and questioning. We recommend that the Statute be amended to define explicit rights during an investigation and for suspects during questioning. We believe that enumerating the following protections for persons during an investigation and questioning will more fully ensure the fairness of the trials.

During an investigation, persons should be entitled to:

Be free from arbitrary arrest or detention;
Not be compelled to incriminate themselves or to confess guilt;
Be protected from any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; and
Be questioned in a language they understand, or to be provided with free and competent interpretation services, if necessary.

We note that under Article 18(c) of the Statute, suspects who are questioned are entitled to assistance by counsel of choice and without payment if the suspect does not have the means to pay for it. In addition to this protection and the rights during an investigation discussed above, we recommend that suspects should be entitled to:

Be informed, prior to questioning, that there are grounds to believe that he or she committed a crime under the jurisdiction of the Special Tribunal;
Remain silent without such silence being considered an indication of guilt; and
Be questioned with counsel present unless he or she waives this right.

Some of these provisions are codified in Rule 42 of the ICTY, ICTR, and SCSL Rules of Procedure and Evidence and Article 9(1) of the ICCPR explicitly requires that, ?[n]o one shall be subjected to arbitrary arrest or detention.? Similar provisions are also codified in Article 55 of the Rome Statute.

2. Accused persons should be provided with the guarantees of a fair trial in the determination of a criminal charge.

As stated above, we acknowledge the inclusion of many of the international fair trial standards for protection of the accused in the determination of a criminal charge under Article 20 of the Statute as enshrined in Article 14 of the ICCPR.

However, we are concerned that the Statute does not require that the accused be proven guilty beyond a reasonable doubt. Article 20(b) of the Statute states that ?[e]veryone shall be presumed innocent until proven guilty before the Tribunal in accordance with the law.?

While the ICCPR does not explicitly state that guilt must be proven beyond a reasonable doubt, the U.N. Human Rights Committee has stated in its General Comment to Article 14(7) of the ICCPR that ?[b]y reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt.? The Rome Statute similarly requires under Article 66(3) ?the Court must be convinced of the guilt of the accused beyond reasonable doubt.? Accordingly, we recommend that Article 20 of the Statute be amended to explicitly require that the burden of proof for a conviction be beyond a reasonable doubt.

It is unclear from the Statute whether trials in absentia by the Special Tribunal may be permitted. While there is no absolute prohibition on trials in absentia under international law, trials in absentia compromise the ability of an accused to exercise his or her rights under Article 14 of the ICCPR, including the right to be present during the trial, to defend oneself through counsel of choice, and to examine witnesses. The Rome Statute, under Article 63, explicitly prohibits trials in absentia at the ICC. We believe that trials in absentia would undermine the legitimacy of the Special Tribunal and recommend that the Statute be amended to explicitly prohibit trials in absentia. The Special Tribunal should, however, be able to take necessary measures to preserve evidence in order to ensure that a subsequent trial in the presence of the accused is possible.

3. The death penalty should be prohibited.

The death penalty is not prohibited under the Statute. Under Article 24(a) of the Statute, penalties for offenses ?shall be those prescribed by Iraqi law [?].? The death penalty is permissible under Iraqi law for certain offenses in some circumstances. Under Article 24(e) of the Statute, penalties that ?do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents.?

We are aware that there may be a strong opinion in support of the death penalty in Iraq. However, permitting the death penalty will undermine the credibility of the Special Tribunal by sending the message that the Tribunal is exacting vengeance rather than rendering justice.

Human Rights Watch opposes the death penalty in all circumstances due to its inherent cruelty. International human rights law, as codified in Article 6 of the ICCPR, favors the abolition of capital punishment. In addition, recent state practice recognizing that the death penalty violates basic human rights has fueled a growing movement around the world to eliminate the death penalty. Many countries, including all countries that are members of the European Union, are united in their opposition to the death penalty in all circumstances. Additionally, the ICTR, ICTY, SCSL, and Rome Statutes do not permit the death penalty as an option for punishment of war criminals, providing another clear indication of the international community's rejection of capital punishment in all cases.

We believe that the Special Tribunal should place particular emphasis on buttressing prohibitions against cruel and inhuman treatment such as the death penalty due to the brutality of the alleged crimes. To do otherwise would blur the distinction between rule under the Ba?ath Party and governance in post-conflict Iraq based on the rule of law and human rights. For all of these reasons, we believe that the legitimacy and credibility of the trials will be seriously compromised if the Special Tribunal permits the death penalty, and strongly recommend that Article 24 of the Statute be amended to explicitly prohibit the death penalty.

4. The Special Tribunal?s principles of criminal law and rules of procedure and evidence should be based on international standards.

We believe that the Special Tribunal should apply the most fully developed standards of international law to help ensure the legitimacy and credibility of the Special Tribunal.

Article 17(a) of the Statute provides that the general principles of criminal law will be the Iraqi criminal law as of 1968, the Iraq Criminal Code of 1969, and the Criminal Procedure Code of 1971 subject to the ?provisions of this Statute and the rules made thereunder.? Article 17(b) of the Statute provides that the Trial and Appeals Chamber, ?may resort to the relevant decisions of international courts or tribunals as persuasive authority for their decisions.? (emphasis added.)

Iraqi criminal law does not adequately ensure protection of the rights of accused. Among the provisions of concern in Iraq?s Criminal Procedure Code of 1971 (?CPC?) are:

Confessions obtained through physical coercion are admissible, ?if there is no causal link between the coercion and the confession or if the confession is corroborated by other evidence which convinces the court that it is true or which has led to uncovering a certain truth [?]? (Par. 218 of the CPC);
Counsel may be excluded from the questioning of a suspect during an investigation if the magistrate or the investigator determines ?if the matter in hand so requires,? (Par. 57(A) of the CPC); and
Proceedings may be closed to the public if ?the court decides that all or part should be held in secret [?] for reasons of security or maintaining decency? (Par. 152 of the CPC).

Reliance on Iraqi criminal law and criminal codes renders Article 17 of the Statute insufficient to ensure that trials are held in accordance with the most fully developed international standards. Reliance on this law could undermine the legitimacy of the Special Tribunal by opening the door to abuse and violations of the rights of the accused.

We recommend that Article 17 be amended to require that Iraqi law should not serve as the basis for principles of criminal law where such provisions are inconsistent with international human rights, criminal, and humanitarian law. We further recommend that Article 17(2) be amended to provide that the Trial and Appeals Chambers should resort to and apply jurisprudence from international and hybrid international criminal tribunals where appropriate.

Article 15(b) of the Statute provides that individual criminal responsibility and liability for punishment should be determined in accordance with the Statute and ?the provisions of Iraqi criminal law.? For the same reasons described above, we recommend that Article 15(b) of the Statute be amended to require that criminal responsibility and liability for punishment be determined in accordance with the Statute and Iraqi criminal law, unless it is inconsistent with international human rights, criminal, and humanitarian law. We further recommend that Article 15 be amended to provide that individual criminal responsibility and liability for punishment should be determined in accordance with jurisprudence, statutes, and rules of procedure and evidence from international and hybrid international criminal tribunals where appropriate.

Article 16 of the Statute provides that the ?President of the Tribunal shall draft rules of procedure and evidence [?and] shall be guided by the Iraqi Criminal Procedure Law.? As the Iraqi criminal law does not ensure international standards of fair trial, as described above, we recommend that the Statute be amended to require that the rules of procedure and evidence be guided by internationally accepted principles. The statutes and rules of procedure of international and hybrid courts are more consistent with internationally accepted standards and would serve as appropriate guidance for the Special Tribunal rules of procedure and evidence.

C. Substantive Offenses

1. The jurisdiction of the Special Tribunal should not include domestic offenses that do not constitute gross violations of human rights or international humanitarian law.

We are concerned by the inclusion of offenses under Article 14 of the Statute that do not constitute gross violations of human rights or international humanitarian law.

It might be argued by some that the inclusion of offenses of lesser gravity may provide additional means to convict individuals for these offenses when evidence is lacking to obtain a conviction for more serious crimes. However, convictions for offenses that are significantly incongruous with the gravity of genocide, war crimes, and crimes against humanity, will undermine the Special Tribunal?s efforts to address the most serious crimes. Prosecuting these crimes could also divert resources from cases involving genocide, war crimes, and crimes against humanity charges.

Accordingly, we recommend that the following offense be deleted from Article 14(b) of the Statute: ?wastage of national resources and the squandering of public assets and funds, pursuant to, inter alia, Article 2(g) of Law Number 7 of 1958, as amended.? Additionally, to the extent that provisions of the offense listed under article 14(a), ?[f]or those outside the judiciary, the attempt to manipulate the judiciary or involvement in the functions of the judiciary, in violation, inter alia, of the Iraqi interim constitution of 1970, as amended,? do not constitute gross violations of human rights or international humanitarian law, we recommend that these provisions also be deleted from the Statute.

2. The Special Tribunal should apply the most fully developed definitions of serious crimes under international criminal and humanitarian law.

We note the general consistency of the definitions of genocide, crimes against humanity, and war crimes under Articles 11, 12, and 13 of the Statute respectively with international criminal and humanitarian law. To ensure that the Statute reflects the most fully developed internationally recognized definitions of these serious crimes, we recommend that the Statute be amended to include the following additions that are included in the Rome Statute:

?Enforced sterilization? under Articles 12(a)(7) and 13(b)(22) and (d)(6) of the Statute as a crime against humanity and a war crime.
?Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition? as a war crime under Article 13(b) of the Statute.
Definition of ?forced pregnancy? as ?the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law? under Article 12 of the Statute.
Definition of ?gender? as ?the two sexes, male and female, within the context of society? under Article 12 of the Statute.

D. Witnesses and Victims

We note the Statute?s reference to witness and victim protection under Article 22 of the Statute, particularly the reference to the use of in camera proceedings. The atrocities that victims and their families have suffered and the important role of these trials for victims, their families, and witnesses make sensitive treatment at the Special Tribunal important.

Experience from the ICTR and ICTY strongly suggests that witnesses, both victim and non-victim, face serious security, psychological, and medical challenges related to their appearance in court. For example, numerous witnesses have refused to participate in the tribunals? proceedings because of fears of reprisals against them or their families. Victims and witnesses of crimes of sexual violence require especially sensitive treatment due to the particular trauma and alienation that they may have suffered. To facilitate participation by witnesses, both victim and non-victim, at the Special Tribunal and to promote their psychological well being, we recommend that witnesses be provided with basic support and counseling services, and protective measures from the commencement of an investigation through trial, and where appropriate, post-trial.

Below we describe a number of specific provisions to protect the security and identity of witnesses, both victim and non-victim, and provide them with appropriate assistance. These recommendations are based on the statutes and rules of procedure and evidence of international and hybrid courts with jurisdiction over serious human rights crimes includingArticle 16 and Rules 34, 69, and 75 of the SCSL Statute and Rules of Procedure and Evidence, and Articles 43 and 68 and Rules 16-19 and 86-88 of the Rome Statute and ICC Rules of Procedure and Evidence.

We note that Article 22 of the Statute indicates that protections for witnesses and victims will be provided in the rules of procedure and evidence for the Special Tribunal. As the founding document for the Special Tribunal, we recommend that the Statute be amended to include greater discussion of such provisions. These provisions can then be elaborated in the rules of procedure and evidence.

We also recommend that Article 9 of the Statute be amended to provide for a Victims and Witnesses Unit to be established within the Administration Department of the Special Tribunal. This will help ensure that victim and witness protection is effectively coordinated, and comprehensively and efficiently provided. This will also help to ensure that victim and witness protection is independent from organs of the Special Tribunal where conflicts of interest could arise, such as in the Prosecutions Department.

1. The identity and security of witnesses and victims should be protected.

To ensure that the identity and security of witnesses and victims are protected, the following guarantees should be available and should be provided for as long as they are objectively necessary and do not conflict with the rights of an accused:

Secure transportation to and from proceedings;
Closed session proceedings;
Allowing victims and witnesses to testify through one-way closed circuit television, video link, or image- or voice-altering devices, particularly where the victim has suffered sexual violence or when the witness is a child;
Expunging names and identifying information from public records or documents provided to the media; and
Providing witnesses and victims with pseudonyms.

Any party to the case, including victim, witness, or judge, should be permitted to request the implementation of such measures to protect the identity, security, and privacy of victims and witnesses.

2. Witnesses and victims should be provided with appropriate counseling and support.

Access to counseling and other assistance, including medical assistance, physical and psychological rehabilitation, particularly in cases of rape, sexual assault, and crimes against children should be made available. Experts in trauma, including trauma related to sexual violence or crimes against children, should be utilized to ensure that such assistance is appropriate and adequate. Assistance to victims and witnesses in obtaining legal advice and organizing legal representation should also be made available.

Witness and victim protection should take age, gender, and the health of the victims and witnesses into consideration throughout the investigation and prosecution. It should also take into consideration the nature of the crime, particularly with regard to crimes of sexual violence and against children. Finally, victims and witnesses should be protected from harassing and intimidating forms of questioning.

E. Vetting and Security

1. Decisions to exclude Ba?ath Party members from the Special Tribunal should be made on a case-by-case basis.

Article 33 of the Statute requires that no personnel of the Special Tribunal ?have been a member of the Ba?ath Party.? We believe that the blanket exclusion of former members of the Ba?ath Party without any process will undermine the legitimacy and the credibility of the Special Tribunal. Accordingly, we recommend that the Statute be amended to provide for a procedure through which the candidacy of former Ba?ath Party members will be assessed on a case-by-case basis with regard to their past performance and seniority of their membership in the Ba?ath Party.

2. Security should be provided at the Special Tribunal and for its staff.

Security for trials involving such serious crimes as genocide, war crimes, and crimes against humanity is always crucial. Given increasing attacks against Iraqi civilians who are perceived to be associated with the Coalition Provisional Authority or the Iraqi Governing Council, security will be particularly important for trials for serious past crimes committed in Iraq.

Under Article 2 of the Statute, the seat of the Tribunal will be in Baghdad, ?or, following a written proposal made by the President of the Tribunal, in any other Governorate in Iraq as determined by the Governing Council or the Successor Government.? Locating the Special Tribunal in Baghdad would give victims and those in whose names the crimes were committed greater access to the trials. However, the location of the tribunal in Baghdad could make the Special Tribunal especially vulnerable to attacks by those who oppose its operations.

The current insecurity that prevails in Baghdad and other areas in Iraq raises the question of whether such trials can be held safely in Iraq in the near future. According to press reports, two prominent judges as well as two politicians connected with the occupation or the Governing Council were killed in early November. We recommend that a serious assessment should be made concerning security before commencing trials in Baghdad or other areas in Iraq.

We note that the Statute fails to provide for security at the Special Tribunal. Wherever the trials are held, adequate security should be provided for the facilities and to Special Tribunal staff. We recommend that the Statute be amended to provide or the rules of procedure and evidence should include that adequate security for facilities, Judges, Prosecutors, and other court personnel is made available.

Conclusion

We urge the Iraqi Governing Council to consider our recommendations and to amend the Statute accordingly. The issue of justice for gross violations of human rights and international humanitarian law is too important to risk that the legitimacy and credibility of the trials will be undermined by the perception that the Special Tribunal is not fair, impartial, independent, or effective. Similarly, inadequate security or protection of witnesses and victims, and staff of the tribunal or insufficient application of the most fully developed international law should not be permitted to compromise accountability for serious past crimes. Justice must be done and be perceived to be done, for the victims and their families, and for a future in Iraq based on respect for human rights and the rule of law.

¹ Iraq ratified the ICCPR in 1971 and is bound by its provisions.

From http://www.hrw.org/backgrounder/mena/iraq121703.htm

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A Trial for Saddam Hussein

By Edward Hudgins

Saddam Hussein now will stand trial for his crimes. The lessons of the trial could be as critical as Saddam’s capture.

All trials reflect fundamental underlying principles. In Western societies they seek to settle disputes or to right wrongs, with advocates for the parties involved and impartial judges and jurors who make their decisions based on objective laws. The goal is justice. In dictatorships, “show trials” keep the physical trappings of a civilized system – a courtroom, a bench, a judge – but their goals are to terrorize the victim on trial and the population through the arbitrary use of power and to degrade them by forcing them to pretend that the proceedings have legitimacy.

After World War II there was no effective free German government to try the Nazi leaders, and in any case, by what standard would they be tried? The Nazis might argue that they came to power through elections, and that the enabling acts that they used to persecute alleged internal enemies were passed by the Reichstag. The forms of the law were satisfied even as the actual rule of law was destroyed.

The special Nuremberg tribunal both extracted justice from the Nazi tyrants and helped reestablish the principles of justice and civilization in Germany and in Europe. The Nazi defendants were allowed to have counsel and the charges – waging an aggressive war, war crimes and crimes against humanity – were spelled out. The fact that some of the accused were acquitted showed that this was not a mere show trial by the victors.

Most Nazi defendants argued that they were only following orders, that they were doing what the citizens of any country are obligated to do: obey the laws and the commands of their rulers. The Nuremberg tribunal rejected that argument, a decision that points to the most crucial aspects of any law: it must be based on sound moral principles to be legitimate and it does not absolve individuals of their personal moral responsibility if the law is clearly unjust. Although the trial had its problems – the Soviets were judges but were guilty of many of the same atrocities as the Nazis – it did reaffirm in the Western world that only a higher moral law makes manmade law legitimate.

Israel’s 1961 trial of Holocaust architect Adolph Eichmann was noteworthy because it was the country founded by so many Holocaust survivors that brought him to justice. Further, an important lesson was reaffirmed by Hannah Arendt in her book Eichmann in Jerusalem: A Report on the Banality of Evil. After any political or human disaster like Nazi Germany it is crucial to learn why it occurred in order to ensure that it never happen again. Arendt’s book showed that Eichmann was not some hate-crazed, ranting anti-Semitic monster. Rather, he was a little bureaucrat, an apparatchik whose narrow soul and obsession with the morality of duty led him to participate in one of history’s most heinous crimes. The lesson of Arendt’s book was that we must question any philosophy that teaches us mindless or fanatical obedience.

The Iraqis will try the Butcher of Baghdad in circumstances very different from the allied trials of the Nazi leaders. Western Europe had the cultural, institutional and philosophical elements necessary for free societies that respect and protect the freedom of individuals – elements that were abandoned by the Nazis. Iraq and most Middle East countries never had those prerequisites to freedom.

Thus, if Iraq’s interim leaders try Saddam, they will not only be extracting justice but also will be establishing the underlying principles that they believe should govern their country. The trial will have regional implications as well. The other Middle East countries are simply variations – albeit sometimes less virulent – of Saddam’s regime. Their cultures and governments are repressive and corrupt. Major parts of their populations accept the crudest kinds of radical Islamic fanaticism. A trial that upholds the sound principles of a free country – individual rights and limited government to protect the lives, liberties and property of the citizens – will be an indictment of the cultures and governments in Iran, Saudi Arabia, Syria, Pakistan, Egypt and the Palestinian authority.

It is very difficult for countries to reverse decades or centuries of failed societies; the former communist countries are still struggling. Ideally, Saddam’s trial will illuminate the principles that will light the path for those individuals in the Middle East who are trying to reform their respective countries. Hopefully Muslim and Arab Hannah Arendts will arise to explain the defects of their societies and to point to the principles that are universal and proper for individuals in any country or culture. Hopefully the trial will be a first step in the process by which the peoples of a despotic region of the world will make their counties into fit places for human beings to flourish.

December 15, 2003

Arabic Media :: Al-Jazeera :: Impartial judgement for Saddam?

by Lawrence Smallman
Monday 15 December 2003 9:36 AM GMT

Parading captives on TV used to anger some US officials

Capturing Saddam Hussein is one thing, convicting him in an impartial court is something else.

One Iraqi Governing Council member and judge, Dara Nur al-Din, has highlighted the impartiality problem already.

Having helped draft the statute creating the war crimes tribunal, Nur al-Din told journalists on Monday that people in Iraq need "to see the nature of crimes committed with Saddam at the helm".

Ahmad Chalabi, another member of the Governing Council, promised: "Saddam will stand a public trial so that the Iraqi people will know his crimes".

US President George Bush has also promised that "the former dictator of Iraq will face the justice he denied to millions" - though he did not say where the former president would be tried and by whom.

No judges or administrators have yet been appointed to the tribunal, and with no transitional government set to assume sovereignty until 1 July – questions of how justice is to be meted out are bound to be asked.

For instance, could the Iraqi tribunal have the power to impose death sentences? International human rights groups are concerned over early indications.

Victor's justice?

"The example of the Romanian dictator Nicolae Ceausescu - shot after a summary trial in 1989 - reminds us how things should not be done"

Steve Crawshaw,
director, Human Rights Watch

Amnesty International has told Aljazeera.net that as Iraq's former military commander in chief, Hussein is most certainly a prisoner of war and should be given prompt access to the international Red Cross.

"Like any other criminal suspect he is entitled to all relevant safeguards under international law, including the right not to be subjected to torture or ill-treatment", said Amnesty spokeswoman Nicole Shuairy.

"Of course he has the right to receive a fair trial, a defense lawyer and the minimum safeguards as any other prisoner," she added.

Humiliating Saddam

But to the applause of "impartial" western and Iraqi journalists, the former president was paraded in front of television screens around the world.

It was only last March that American officials expressed their anger over the parading of five American soldiers on Iraqi television.

Just after the end of the invasion, the International Red Cross said occupation forces should re-examine the way they handled PoWs.

Referring to Article 13 in the third convention, Florian Westphal, from the ICRC, said PoWs should at all times be humanely treated, protected particularly against acts of violence or intimidation and against "insults and public curiosity".

Fundamental flaws

Human rights' groups are wary that the Iraqi decree establishing the new tribunal is fundamentally flawed because it was proclaimed by an unelected body and without consultation with the Iraqi people or the international community.

Increasingly likely President Bush
will not allow international trial

Activists also say the decree does not ensure that guilt has to be proven beyond reasonable doubt.

"Another concern is the death penalty," Shuairy said. "He should be punished for his crimes, but the death penalty is not included. That goes without saying."

Convenient international justice

The London director of Human Rights Watch, Steve Crawshaw, told Aljazeera.net that any sense Saddam Hussein was being exposed to revenge justice would lessen the chance of stability in Iraq.

While he accepts The International Criminal Court (ICC) can only hear crimes committed since 1 July 2002, he believes it is a fundamental flaw that there is little provision to involve international judges.

"Part of the problem is the loathing that the US feels for international justice, as reflected by its desire to throttle the ICC at birth," Crawshaw said.

Eager not to upset Washington, the Iraqi Governing Council has set out plans for five Iraqi judges with no legal requirement for international legal observers on what will prove hugely complex cases, he added.

He too regrets the retention of the death penalty. "The example of the Romanian dictator Nicolae Ceausescu - shot after a summary trial in 1989 - reminds us how things should not be done. That execution hindered long-term justice in Romania."

Geneva conventions

Louise Christian, solicitor for three British detainees in Guantanamo Bay, also believes the US continues to talk about international justice when it suits them.

"On their original arrest Guantanamo detainees too were humiliated and paraded on TV manacled, shackled and hooded," she said.

The Third Geneva Convention was signed by the United States, Iraq and more than 180 other governments.

It is designed to protect the lives, health and dignity of uniformed combatants; the civilians accompanying them, like war correspondents; and some guerrilla fighters.

It includes guarantees of things like food, clothing and shelter, and protections against torture, coercion and humiliation.

US position changing?

Officially, the US position as laid out in a State Department document in 1999 is that: "The goal of the United States is to see Saddam Hussein indicted by an international tribunal."

But until recently, the type of trial envisaged remained vague.

But Charles Forest, director of a London-based group funded partly by the US State Department believes the position is changing.

Responsible for gathering evidence for a war crimes trial, he told journalists on Monday: "There is a growing consensus that the best solution would be for Saddam Hussein to be tried in Iraq under Iraqi law."

Aljazeera
By Lawrence Smallman

URL:
http://english.aljazeera.net/NR/exeres/CC95D495-E992-42B5-A9B6-CCBCA1A26DEB.htm

Analysis: Putting Saddam on trial

by Paul Reynolds, BBC News
December 15th, 2003

The Iraqi Governing Council intends to put Saddam Hussein on trial by an Iraqi court.
It is determined to resist calls for an international tribunal and has won support from the main occupying powers, the United States and Britain.
Only last week the Council announced that a special tribunal would be set up in Iraq to try former members of the Baathist regime.
Saddam Hussein could face the death penalty. It has been suspended by the occupation authorities but could be reinstated by an Iraqi government.
An interim government with legislative powers is due to take over by the end of June next year.
"He could be executed on 1 July," said Mouwafak al-Rabii, a member of the Council who wants a trial to start "very soon, in the next few weeks."
Other Council members said that a trial would take longer to organise.

International tribunal unlikely
President Bush said that Iraqis needed to be involved. "I have my own views. What matters are the views of Iraqi citizens."
He said that any trial process would have to be in public and "stand international scrutiny."
Britain, while against the death penalty in principle, seems to have decided not to make an issue of it in this case.
The Prime Minister Tony Blair told the House of Commons that it was up to Iraq to decide how to try Saddam Hussein and what penalties to impose. He called for an "independent and fair process" and said that the Iraqis had the "capability of doing that."
Recourse to a UN mandated tribunal of the kind trying the former Yugoslav President Slobodan Milosovic is therefore unlikely. So is recourse to the new International Criminal Court. For one thing, its jurisdiction is not backdated to the time when the major alleged crimes committed by Saddam Hussein took place.

Geneva Protections
In the meantime, the US Defence Secretary Donald Rumsfeld has said that the former Iraqi leader will be "accorded the protections of a prisoner of war and his treatment will be governed by the Geneva Convention."
This means that he is not regarded as an actual prisoner of war. Not that he would thereby escape prosecution for war crimes. All parties to the Conventions are required to try suspected war criminals either in their own courts or in those of another party, as Article 129 of the Third Convention states.
The protections demanded by the Geneva Conventions are summed up in Article 13 of the Third Convention:
"Prisoners must at all times be protected, particularly against acts of violence and intimidation and against insults and public curiosity."
The last prohibition is often taken to mean that no television pictures of prisoners should be taken. This provision is not clear, however, and the US presumably did not consider it relevant when Saddam Hussein was pictured having his medical examination after capture.
The Americans will also try to question their prisoner. The Geneva Convention would not permit pressure to be put upon him.

Special tribunal

The special Iraqi court will be staffed by Iraqis. Judges will be appointed by the Governing Council. Five judges will try each case. It will be a civilian court. Defendants will have lawyers. The trials will be open. There will be an appeal court.
"This court will try cases of genocide, crimes against humanity and war crimes committed from 17 July 1968 (when Saddam took power) until 1 May 2003 ( when he lost power)," said Council member Abdul al-Aziz al-Hakim.
"We want to ensure this is not seen as a tribunal for revenge," he said.
The tribunal will look at the campaign against the Kurds in the 1980s ( including the use of poison gas at Halabja); the suppression of revolts by Kurds and Shias after the first Gulf War; the brutality against the Marsh Arabs; and crimes committed during the wars against Iran and Kuwait.
South African judge Richard Goldstone, who served as prosecutor in the war crimes trials for the former Yugoslavia and Rwanda, told the BBC that he approved of the trial being held in Iraq but said that international observers should be present.

Human rights concerns

Some human rights groups expressed concern that an Iraqi court might not be fair.
"Iraqis rightly insist that trials for past atrocities are of the utmost importance," said Richard Dicker of Human Rights Watch. "But any tribunal set up to try these crimes should be fair and effective. Justice must be done and be seen to be done."
Human Rights Watch questioned whether Iraqi judges had the right experience and said that the new procedure did not allow for non-Iraqi prosecutors or investigating judges.
Any tribunal set up to try these crimes should be fair and effective

Human Rights Watch

Of the 55 original "high value" targets sought by the coalition, 40 are now in custody and might therefore be subject to the trial procedures.

Iranian call

Iran has called for an international tribunal to try the former Iraqi leader, who launched a war against Iran in 1980.
However, part of the Iranian agenda could be seen in a statement from the government spokesman Abdullah Ramazanzadeh who said that the tribunal "should determine who equipped this dictator to disrupt our region and impose three big crises on our region."
This presumably is a reference to the role played by Western countries, including the United States, in equipping and supporting Saddam Hussein.

December 14, 2003

Debate begins on how Saddam trial will proceed

By Toni Locy and Kevin Johnson, USA TODAY
WASHINGTON — Hours after Saddam Hussein's capture, the jockeying began over how the former Iraqi leader should be put to trial: by Iraqis who say he committed atrocities against his own people, or by an international court like those that have weighed crimes against humanity.
The U.S. government, which has custody of Saddam, hasn't decided where or when he will get his day in court. But a State Department official said the Bush administration wants the Iraqis to play a "major role in holding Saddam accountable."

Alleged reign of terror

Former Iraqi leader Saddam Hussein faces a range of charges. Among them:

•He allegedly authorized the use of poison gas and other atrocities against Iran during the Iran-Iraq war in 1980-88. Iraq killed thousands of Iranian prisoners of war.

•To suppress rebellion by Kurds in northern Iraq in the late 1980s, Saddam allegedly authorized the use of poison gas on cities.

In one of the worst mass killings in recent history, Iraq dropped chemical weapons on Halabja in 1988, killing as many as 5,000 people. International analysts estimate that in all, Saddam's government destroyed more than 3,000 villages in northern Iraq and displaced about 900,000 citizens.

•Kuwaiti officials say that during Iraq's brief takeover of their country in 1990-91, Saddam's troops committed murder, rape and torture.

•Saddam's regime has been accused of committing crimes against humanity in crackdowns on Marsh Arabs and Shi'a Arabs in southern Iraq. Villages were destroyed as government forces burned houses and fields. Thousands of civilians were executed.

•During Saddam's regime, thousands of political foes and other critics were executed or simply disappeared. In some cases, the wives and daughters of Saddam's political foes were raped.

Source: U.S. State Department

On Monday, an Iraqi Governing Council member said Saddam could be tried "in the next few weeks" and could face the death penalty if convicted.

The U.S.-led occupational authority has suspended executions in Iraq, but human rights activist Mouwafak al-Rabii said it won't take long for death to be reinstated after the July 1 deadline for sovereignty to be restored.

"We will get sovereignty on the 30th of June, and I can tell you, he could be executed on the 1st of July," said al-Rabii.

On Sunday, British Prime Minister Tony Blair suggested that Saddam should face trial in Iraqi courts.

President Bush said Sunday that Saddam "will face the justice he denied to millions."

The U.S.-appointed Iraqi Governing Council kicked off what is likely to be an intense international debate Sunday by staking its claim to a Saddam trial.

Citing legislation it enacted Wednesday, the interim Iraqi government said it has established a special tribunal for handling cases against top members of Saddam's government accused of war crimes, genocide and crimes against humanity.

The plan provides only a framework for bringing suspects like Saddam to a world stage, where security will be an issue no matter where he is tried.

At the start of the U.S. war in Iraq, many legal analysts said Iraq and the United States would be better off if Saddam were killed rather than face trial before a tribunal he could use as a platform to harangue opponents and to incite followers.

But now, with Saddam in custody, analysts say a public trial could give Iraq's new leaders a chance to show they are ready to run their country.

"This is a country hungry for a viable sign that Saddam Hussein is really gone," said John Kunich, a law professor at Roger Williams University in Bristol, R.I. "Nothing could make that point any clearer than conducting an open trial in Iraq. A trial, maybe more than anything else, would illustrate that times have changed."

Saddam's capture gives the Iraqis more than a chance to "bring their villains to justice," said Anne-Marie Slaughter, dean of Princeton University's Woodrow Wilson School of Public and International Affairs. "One hopes it will be the key to the healing process for Iraq."

For Iraq's interim government, putting Saddam on trial could be the turning point in establishing its place in the world.

"The Iraqis have made very clear their desire and willingness to assume all of the responsibilities of sovereignty as soon as possible," said Washington lawyer Michael Nardotti, a former U.S. Army judge advocate general. "And exercising the administration of justice against the most egregious offenders is certainly fundamental to exercising sovereignty."

But human rights advocates signaled Sunday that the Iraqi tribunal model will face opposition in the international community because it includes the death penalty as a possible punishment.

Some expressed concern that a trial run by Iraqis could become an exercise in exacting revenge on a deposed dictator whose regime was known for its brutality.

"To allow (the Iraqis) to run this would be a recipe for a show trial," said Kenneth Roth, executive director of Human Rights Watch.

If the Iraqis get their way, Saddam will face trial before a tribunal that appears tailor-made for him.

The Iraqi Special Tribunal for Crimes Against Humanity has jurisdiction over crimes committed from July 17, 1968 — the day the Baath Party came to power — to May 1 — the day Bush declared an end to most hostilities in the U.S.-led war in Iraq.

The crimes covered by the tribunal also are offenses linked directly to Saddam: the use of poison gas that killed thousands of Kurds in the 1980s, the invasion of Kuwait in 1990 and the oppression of Shiite Muslims in the early 1990s.

Under the best of circumstances, analysts say, it probably will take months, and perhaps more than a year, to prepare a case against Saddam and bring it to trial.

Before then, the U.S. government probably will spend months interrogating Saddam about the location of any weapons of mass destruction and his government's connections, if any, to al-Qaeda.

As a "prisoner of war," Saddam cannot be tortured and must be treated humanely. He will not be entitled to a lawyer until he is charged with a crime.

To the dismay of human rights advocates, the Iraqi tribunal will rely on the country's existing criminal law, as interpreted by judges and prosecutors who could have been corrupted by Saddam.

"It would be good, even preferable that Iraq host a trial," Roth said. "But there is no reason to believe that the Iraqi justice system is capable of doing this on its own. Iraq has no history of respect for the tradition of due process. They have no experience in conducting complex investigations."

The Iraqi tribunal rules contain classically American concepts, such as the presumption of innocence, court-appointed lawyers and the rights to cross-examine witnesses and to remain silent at trial.

Hearings will be public, unless a portion must be closed to protect a witness or sensitive evidence, the statute says.

Verdicts will be decided by a majority of five judges, some of whom may be non-Iraqis. Slaughter says the Iraqis could ask Arab nations for judges to minimize the U.S. influence.

Senior U.S. District Judge Gilbert Merritt, who went to Iraq this year to assess its judicial system, says Iraqi judges are more independent than critics realize.

"As a matter of national pride, the Iraqis are going to want to conduct this themselves," he said. "They are competent to do this."

Contributing: Barbara Slavin

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http://www.usatoday.com/news/world/iraq/2003-12-14-saddam-justice_x.htm

Saddam Hussein's Gang Trail

December 19, 2003