TRYING SADDAM

Iraq assumed legal custody over Saddam Hussein Wednesday, reducing him to a criminal defendant in the land he once ruled. The former dictator and 11 of his top lieutenants are no longer prisoners of war, but they remain in U.S. physical custody.

JIM LEHRER: And now more on the legal road ahead for Saddam Hussein and his top lieutenants. It comes from Michael Scharf. He's a professor of law and director of the War Crimes Research Office at Case Western Missouri University. He's just returned from training ranking judges, prosecutors and defense lawyers for forthcoming war crime trials.

Professor Scharf, welcome.

MICHAEL SCHARF: Jim, it's good to be on.

JIM LEHRER: First, explain to us what legal custody actually is, what does it mean?

MICHAEL SCHARF: Well, legal custody means that the United States still has physical custody, but technically Iraqis have jurisdiction. And it's just a matter of semantics, but it's an important point -- if we were to physically have given Saddam Hussein over to the Iraqis, there would be a great likelihood that he might escape; he could become like a Napoleon; he could rile up the Iraqi people and set off a civil war in that case, or maybe he would be killed in custody; again, that could cause a lot of tension and fighting in Iraq. And so it makes a lot of sense for the United States to keep him in our physical custody, although the Iraqis technically get to call the shots.

JIM LEHRER: What do you mean technically? I mean, in a real sense they're not going to call the shots, or does this mean now that the United States no longer has a legal hold over Saddam Hussein?

MICHAEL SCHARF: The United States does not have an absolute legal right to control what happens to Saddam Hussein. That right has transferred with the sovereignty to the new Iraqi government. However, of course, the United States has a lot of pressure points that can impose on the Iraqi government to get it to play ball. For example, the $75 billion a year that is necessary to reconstruct that country --

JIM LEHRER: Sure, but I'm just talking about the legal side now.

MICHAEL SCHARF: Right.

The trial process
JIM LEHRER: As a practical matter, the United States would not be involved in the trial. Now let's go to the process. Tomorrow we just....

MICHAEL SCHARF: Let me correct you on that, Jim. The United States will be involved in the trial but from behind the scenes, more like a puppet master role. In fact, the tribunal statute requires that both the judges and the prosecutors receive assistance from U.S. authorities.

JIM LEHRER: Well, assistance is one thing. I'm talking about making the decisions and all of that. Are you suggesting that the United States is still going to be making, calling those decisions? No, right?

MICHAEL SCHARF: No, no. That will go to the Iraqi government.

JIM LEHRER: Okay. All right. Tomorrow John Burns just explained what's supposed to happen tomorrow. They will read the charges. Is that right?

MICHAEL SCHARF: Right. This is the mother of all curb walks. They're going to read the charges.

JIM LEHRER: Mother of all what?

MICHAEL SCHARF: I call it curb walk. I teach criminal procedure, and that's what happens in the United States -- the term that they call when someone goes to arraignment.

JIM LEHRER: All right. They will read the charges. Will he enter a plea?

MICHAEL SCHARF: And he will enter a plea, but my guess is that he will do what Milosevic did, which is he'll trying to make speeches condemning the right of this court to try him.

JIM LEHRER: We'll actually see what happens. I'm just talking about the process. The process as it has been worked out, he will enter a plea. Will he be represented by, can he be represented and will he be represented by an attorney?

MICHAEL SCHARF: Yes. In fact, his wife has attained -- retained legal counsel. And apparently there are 20 other lawyers that are already assisting in the preliminary matters that that defense counsel has begun.

JIM LEHRER: Who will be the prosecutors? Have they been selected as well?

MICHAEL SCHARF: The prosecutors and the judges have been selected by Chalabi, the person that you saw earlier in the newscast. And the prosecutors and the judges are all Iraqis, many of which I believe are former exiles who have come back. It's unlikely that a lot of indigenous Iraqis who have been there a long time under the Baathist regime would be participating because they would be seen as tainted.

JIM LEHRER: Now, the judges, how many judges will be presiding tomorrow? It's a panel of judges, correct?

MICHAEL SCHARF: Right. There's a panel of three judges for the trial. It may just be a single judge tomorrow for the arraignment. Let me get back to one other thing. If Saddam Hussein refuses to enter a plea, they will enter a plea of not guilty for him.

Similarities to other courts
JIM LEHRER: Okay. Now, once the plea is entered, however way it gets entered, then what is the next step?
MICHAEL SCHARF: The next step is a discovery process and also pretrial motions. In the next coming months Saddam Hussein's lawyers will have a motion to exclude certain evidence. They'll have motions to try to release the defendant on bail -- very unlikely -- to challenge the jurisdiction of the court. All of these motions are unlikely to succeed but you'll see a lot of time spent on those going up until the new year. The actual trial will begin sometime in January or February 2005.

JIM LEHRER: Now, the various steps you just went through, where do they come from? What rules will they be following this process tomorrow, I mean, beginning today, tomorrow and all through as you just said up through January?

MICHAEL SCHARF: This is one of the most interesting aspects of this. The Iraqi special court statute was drafted by the United States, given to the provisional government and then ratified by the new government.

The statute does not look like a traditional Iraqi court. Instead it looks more like the Yugoslavia tribunal or the Rwanda tribunal or even more ironically the new International Criminal Court that the Bush administration opposes.

JIM LEHRER: But it's not a standard U.S. court procedure, right? They didn't just give them a U.S. court procedure and tell them to do it that way or did they?

MICHAEL SCHARF: No. It's not exactly like the United States although the rights that the defense gets and the adversarial nature are more like the United States' system than the traditional Iraqi system: The big difference being that there are a panel of three judges rather than a jury.

JIM LEHRER: Can Saddam Hussein and the other defendants call their own witnesses in their own defense?

MICHAEL SCHARF: They will be allowed to call their own witnesses and much like the Milosevic trial they're expected to call people like George Bush and Rumsfeld, Bush the elder, Clinton; April Gillespie and many other officials who over the years had provided support and mixed signals to the Iraq regime.

JIM LEHRER: It was mentioned on this program last night by an Iraqi American that he hoped this trial went on for a long time because what was at issue here beyond justice was reconciliation. Do you foresee a long trial that would involve many, many witnesses along the lines at least attempted along the lines you just outlined?

MICHAEL SCHARF: I definitely think it will be a long trial although not as long as the Milosevic proceedings. One thing that they will do differently....

JIM LEHRER: Which... you keep mentioning the Milosevic. It's been going on for what, two years or or so now?

MICHAEL SCHARF: It's in its third year. On Monday Milosevic begins his defense so a fourth year.

JIM LEHRER: All right. So this could go on. You don't think it will go on quite as long as two years.

MICHAEL SCHARF: No, and I think the reason is because they're going to identify specific cases involving one atrocity in the Iran War, one atrocity in the invasion of Kuwait, one atrocity in the attacks against the northern Kurds or the southern Shiites -- instead of trying to prosecute him for thousands of different cases, they will pick and choose exemplary situations in which they have very good evidence and that make a compelling case.

Iraq's legal strategy
JIM LEHRER: But there will not be sweeping charges like war... I mean, crimes against humanity, genocide, that sort of thing?

MICHAEL SCHARF: They will charge him for genocide and crimes against humanity but rather than trying to prove many specific instances over a long period of time, they'll focus on one exemplary situation.

JIM LEHRER: Now, is there an appeal process that could follow this or is there just one trial and that's it?

MICHAEL SCHARF: There is an appeal process. In fact, the special court has an appeals chamber. There's an automatic right to appeal. So after potential a year-long trial there's going to be another six-month wait for the appeal and probably a couple of months wait for its decision. So this won't end for a couple of years.

JIM LEHRER: All right. Under the rules, will everything be done in the open?

MICHAEL SCHARF: No, not everything. That's one difference between the international tribunals and this one. Because of the situation of the Milosevic case, the United States has sought to have more control of the proceedings and make sure that the Iraqis have greater control over Saddam Hussein. So he probably won't be allowed to represent himself like Milosevic has. They will close the trial proceedings from time to time to the public to protect certain witnesses. You'll never be able to see the judges' faces. You'll only see them distorted if it's broadcast at all or blacked out if it's going to be an artist's sketch.

JIM LEHRER: Based on what you know up until this point, we know the process has just begun, do you believe that Saddam Hussein will get a fair trial?

MICHAEL SCHARF: It would be very hard for him to get an acquittal given what we know of the evidence. And because of that he may not even try to get an acquittal. He may try to do what Milosevic did which is just use the trial as a platform for a lot of rhetoric and anti-American bashing. I think that....

JIM LEHRER: I'm just talking about the process as you understand it, if it's followed, would Saddam Hussein get a fair trial?

MICHAEL SCHARF: I would -

JIM LEHRER: Your opinion.

MICHAEL SCHARF: I would think that, yeah, it's all relative. It's fairer than any trial than was ever given in Iraq under his regime. It's pretty fair, but I just don't think there's a good chance he'll be acquitted. Tariq Aziz, however, the foreign minister, he might actually walk out at the end of this.

JIM LEHRER: Okay. We'll talk about that some other time. Mr. Scharf, thank you very much for being with us.

MICHAEL SCHARF: It's been a real pleasure.

JIM LEHRER: Thank you.

Saddam denied interim measures by ECHR

Relying on Articles 2 (right to life) and 3 (prohibition of torture and inhuman and degrading treatment) of the European Convention on Human Rights and Article 1 of Protocol No. 6 (abolition of the death penalty in time of peace) and Protocol No. 13 (abolition of the death penalty in all circumstances) to the Convention, lawyers acting for Saddam Hussein sought the European Court of Human Rights to

"permanently prohibit the United Kingdom from facilitating, allowing for, acquiescing in, or in any other form whatsoever effectively participating, through an act or omission, in the transfer of the applicant to the custody of the Iraqi Interim Government unless and until the Iraqi Interim Government has provided adequate assurances that the applicant will not be subject to the death penalty."

They argue that under those provisions the United Kingdom has an obligation to ensure individuals are not subject to the death penalty and therefore not to surrender legal or physical custody of individuals to a country or jurisdiction where they would face such consequences and other breaches of the Convention.

On 29 June 2004 the European Court of Human Rights decided not to grant the request, it remains open to Mr Hussein to pursue his application before the Court. His legal custody has now been transferred to Iraq which means Saddam and the other former members of his regime are no longer prisoners of war, entitled to the protection of the Geneva convention, but criminal defendants, who will be treated in accordance with Iraqi law.

Saddam in Iraqi custody

(Filed: 30/06/2004)


Saddam Hussein and 11 of his senior officials, including his deputy, Tariq Aziz, have been transferred to Iraqi legal custody.


Saddam Hussein will make his first public appearance since his capture tomorrow
Saddam made a brief appearance before an Iraqi judge this morning and is expected to appear in court tomorrow to face charges of crimes against humanity.

The Iraqi president was quoted as confirming that the death penalty, suspended during the US-led occupation, would be reinstated and could apply to Saddam.

However, he remains in the physical custody of America while the interim government prepares a security team to guard him.

Iyad Allawi, the newly sworn in Iraqi prime minister, said: "Today at 10.15am the Republic of Iraq assumed legal custody of Saddam Hussein."

Saddam said "Good morning", asked if he could ask some questions, but was told by Salam Chalabi, the director of the tribunal, that he should wait until tomorrow.

Saddam faces charges relating to the chemical attack on the Kurdish village of Halabja and the crushing of a Shia revolt in 1992.

Saddam Hussein's court appearance follows a failed bid by his lawyers to block the move on human rights grounds.

His lawyers cited the Human Right Convention, which binds its signatories, including the UK government, to a ban on the death penalty "in times of peace" and "in all circumstances".

Saddam's lawyers said that under those provisions the UK was obliged to ensure that individuals were not surrendered "to a country or jurisdiction where they would face such consequences and other breaches of the Convention".

A statement from the Human Rights Court said that the rejection of the request for "interim measures" did not rule out pursuing a human rights case: "It remains open to Mr Hussein to pursue his application before the Court."

One of the most difficult tasks facing war crimes prosecutors is how selective they should be. A comprehensive trial, like that of Slobodan Milosevic, could take years. The former Serb leader went on trial in The Hague in February 2002 and he will not be starting his defence until next week.

Saddam was captured in December last year after American forces unearthed him from a cramped hideaway in an 8ft-deep hole under the floor of a mud hut on the outskirts of his home town, Tikrit.

30 June 2004: Iraqis will see Saddam's handover from US custody
29 June 2004: Saddam will be brought before an Iraqi judge 'within a week'
20 June 2004: Saddam must face death penalty, says Iraq's PM


Information appearing on telegraph.co.uk is the copyright of Telegraph Group Limited and must not be reproduced in any medium without licence. For the full copyright statement see Copyright

US offers compromise on Saddam custody

Tuesday June 22, 2004

The US today offered an unusual compromise over Saddam Hussein, the former Iraqi dictator it has refused to hand over to the country's interim government.
It said it would retain physical custody of Saddam but legal custody would go to Baghdad. The deal would allow Iraqi defence and prosecution lawyers access to the prisoner to prepare for his trial.

Washington was told this month by the International Committee of the Red Cross (ICRC) to charge Saddam or hand him over by June 30, or it would be in violation of international law. However, the US president, George Bush, said the former dictator could not be transferred until it was certain the new regime had the ability to keep him in jail.

The ICRC has made at least two visits to the former Iraqi president, who is believed to be in a special prison at Baghdad airport.

Around 40 other members of the so-called "pack of cards", Washington's list of high-level members of the former regime, are being held with Saddam, most in solitary confinement. The deal will also apply to other senior former regime figures held by the US.

Interrogation has been sporadic and none of the visitors has been charged or allowed visits by their lawyers. A few have had family visits.

They include scientists who were never members of the Ba'ath party, such as Dr Amer al-Saadi, who was the Iraqi government's liaison with UN weapons inspectors.

IRAQ: The West May Go On Trial with Saddam

Aaron Glantz

If Saddam can go on trial for planting landmines and selling chemical weapons, so can those who sold them to him.

ARBIL, Jun 18 (IPS) - A year after the fall of Saddam Hussein, the mountains and plains of Northern Iraq are still covered in landmines planted by the former Iraqi dictator's regime during the 1980s. That is when he fought a decade-long war with Iran and many battles with Kurdish guerrillas.

The Red Cross has made thousands of synthetic limbs for Iraqi civilians who have lost their arms or legs. Hundreds have been killed.

”We were in the village when we heard the mines go off in the middle of the night,” recalls Mohammed Abuznawee, a shepherd who lives near a minefield outside Kirkuk. The Iraqi army mined the area around his village in 1985.

”Over 200 sheep broke out of their pen and walked into the minefield in the middle of the night and were killed. Then my brother went out to try to save the flock. He also died.”

Iraq did not make any of the landmines Saddam used in his wars. They were all sold to him by Italy, China, the United States, and the former Soviet Union.

In Northern Iraq the Italian built mine Valmara is the most plentiful and the most dangerous. But the U.S. built landmine, the M-14 sold to Saddam by the administration of then president Ronald Reagan is also lethal.

”It's almost impossible to detect,” says Wiyan Abdurrachman of the Kurdish demining organisation Aras. ”There's no trigger that we can look for and mine is set off by pressure.”

Aburrachman is angry that so many governments supported Saddam. ”Saddam Hussein didn't have any mines, any ammunition. The only thing he had was money for buying the mines and guns.”

The governments of France, Germany and Britain sold chemical agents to Saddam's government. U.S. companies also chipped in. France sold Iraq Mirage fighter jets and the Soviets Mig-29s that were used to deliver the chemical weapons.

The U.S. government added key intelligence information to make sure Saddam's planes were not shot down.

”Some day,” Abdurrachman says, ”those who supplied him will also have to stand trial.”

But with a possible trial date drawing near it is still not clear whether Saddam's international backers will be called as part of a war crimes trial.

Salem Chalabi, the prosecutor picked by the Bush administration is the nephew of former CIA asset Ahmed Chalabi who fell from the Pentagon's grace last month amidst allegations of providing false intelligence to the CIA and spying for Iran.

Salem Chalabi has not set out his case yet. Speaking to reporters in Baghdad this week Chalabi said only that he was ”putting together” his chargeswhich would be ready shortly.

Kurds hope Chalabi probes deep. ”We want Saddam to talk,” says Alan Zangana, programme director for the Kurdish Human Rights Watch in San Diego, California. ”We want to know from Saddam which weapons he used and where he got them.”

A lot of journalists have pointed at companies, he said. ”They have named French and German and American companies as selling chemical weapons to Saddam Hussein. But we need this information established as fact in a court of law. We need these companies to be pointed out in public.”

Zangana says Kurds and other Iraqis wronged by Saddam's Ba'ath regime could then sue the companies for damages the way survivors of the Nazi holocaust sued Swiss banks.

Saddam's defence attorneys, Jordanian lawyers Mohammed al-Rashdan and chairman of the Jordan Bar Association Hussain Mjalli have not said whether they plan to call Westerners as part of a trial.

Their argument is that since the invasion of Iraq was not approved by the United Nations, it has no legal basis. As such, they argue, the U.S.-led occupation authority has no right to change or cancel the Iraqi constitution.

”Article 40 in the Iraqi constitution stipulates that the head of the state enjoys immunity against persecution,” al-Rashdan told the Arab satellite network al-Jazeera.

”Iraq, Iraqi people, Iraqi law were hijacked,” Mjalli said. ”The occupation of Iraq was illegal, so ipso facto everything that follows is illegal.”

Mohammed al-Rashdan and Hussin Mjalli are also threatening to sue the United States because they have not been allowed to see their client (END/2004)




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