Will Saddam Get a Fair Trial?

[Makalakumu]

Very interesting article written by an expert in international law. Will Saddam get a fair trial? Does he deserve one? Will this trial reveal some very interesting things about Saddam's ties to the US?

http://www.washingtonpost.com/ac2/wp-dyn/A9481-2004Dec17language=printer

Can This Man Get a Fair Trial?



[size=-1]By Michael P. Scharf

Sunday, December 19, 2004; Page B01

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

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

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

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

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

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

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[Makalakumu]

A little more from the above article...

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

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

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

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

 

[Makalakumu]

Last excerpt...

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

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

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

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

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

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

Author's e-mail:

[email protected]

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

© 2004 The Washington Post Company

 

[arnisador]

Interesting. My feeling has been that he can't get a fair trial, but that since he's so mind-numbingly guilty, the point is somewhat academic. Still, being as fair as possible is the right thing to do.

 

[Andrew Green]

Nope, not a chance.

But imagine the aftermath if somehow he was found innocent

Saddam HAS to be guilty for things to get better, and that right there takes away the idea of a fair trial.

I can see it now,

"SADDAM CLEARED OF ALL CHARGES"
United States withdraws troops, Saddam Reinstated. A US Official had this to say: "Opps... sorry, our bad."

No, he needs to be found guilty, very guilty. Otherwise things are gonna get bad all over.

 

[mantis]

i was listening to the new iraqi president and he said something like
"he will be put to a fair trial and be executed"
i mean why the trial if you already say he's gonna be executed?!!!

 

[Makalakumu]

Do you think that Saddam and his lawyers could use the relationship he cultivated with the US in his defense?

Here is a thread on MT that outlines what this relationship entailed.

http://www.martialtalk.com/forum/showthread.php?t=6958

 

[Makalakumu]

Interesting. My feeling has been that he can't get a fair trial, but that since he's so mind-numbingly guilty, the point is somewhat academic. Still, being as fair as possible is the right thing to do.

I think that we could agree that Saddam has committed some very immoral acts. However, when it comes to guilt, I think some questions could be raised...for instance, guilty of what? What laws did Saddam break? International laws? If so, who enforces them? What does that say about the sovereignty of nations? If Saddam is held accountable to these laws, wouldn't it be prudent to be more consistent in the application of these laws? Would the lack of consistancy be something that Saddam could use in his defense?

upnorthkyosa

ps - the boldface emphasis is mine.

 

[PatMunk]

I think he should get as fair a trial as all those he murdered during his reign of terror

 

[FearlessFreep]

If he's entitled to a jury of his peers....how are his peers? Is Noriega still around? Khadaffi? Marcos? Kim? Be interesting to put togther a jury of other deposed third world dictators

Would his lawyers file for change-of-venue because he couldn't get a fair trial in the country? Maybe France?

 

[Makalakumu]

In a way, taking him out back and shooting him would be easier then messing with all of the legal issues of surrounding fairness. This is probably more then he deserves if half of the stuff we've heard about him is true. Justice would be served.

As far as legal justice goes, that is a different story and I'm curious as to how it will play out. The ramifications could be far reaching...

 

[Gemini]

You can be as fair as you want. Someone, somewhere is going to cry foul, and condem the US for something.

 

[Andrew Green]

You can be as fair as you want. Someone, somewhere is going to cry foul, and condem the US for something.

That much is true

The issue is surrounded by so much propaganda and spin doctoring on every possible side it doesn't matter what happens most people are gonna think it was unfair...

 

[Makalakumu]

Does anyone think that highly publicized trials like this will give international law more precedent? How about the idea of world government? That really is the bottom line. Laws come from governing bodies. Legal right and wrong is determined by people...hopefully democratically. If we hold Saddam accountable to laws that supercede the laws of his society, this opens up a huge can of worms.

 

[Andrew Green]

Especially since the country leading the fight has refused to sign a treaty which allows a international criminal court juristiction over its citizens in cases of war crimes....

Yup, big can of worms

 

[arnisador]

He's asking for a delay of 3 months' time:
http://news.yahoo.com/s/ap/20051019/ap_on_re_mi_ea/iraq_saddam_trial

 

[arnisador]

I think that we could agree that Saddam has committed some very immoral acts. However, when it comes to guilt, I think some questions could be raised...for instance, guilty of what? What laws did Saddam break?

This is a good, but somewhat philosophical, question. Were there grounds, strictly speaking, to charge Nazis after WWII? It hardly matters, in that winners write the history books.

In one sense I agree that holding heads of state accountable for international laws to which they are not signatories is logically questionable. Yet...should the Idid Amins of the world have it their way? Sovereignity ain't what it used to be.

I don't know if I could defened the claim that he can be held liable in a strict legal sense. Yet, on the other hand, we'd be in our rights to simply kill him as a political assassination. This is the better route! As it's his own people trying him, we sidestep the issue anyway.

 

[Makalakumu]

This is a good, but somewhat philosophical, question.

Without a doubt, I would agree that this is a somewhat philosophical question. I think we all know what is eventually going to happen to Saddam. I also believe that justice must be served in this case. The world community can use this opportunity to say that things like this will not be tolerated.

Were there grounds, strictly speaking, to charge Nazis after WWII? It hardly matters, in that winners write the history books.

The orginal article I posted made reference to a case in which a Nazi sub commander used the fact that the US had committed the same crimes that he was being accused. He was aquitted of war crimes on these grounds. If there is no international statute of limitations, Saddam could make use of this defense.

It sounds as if during Nuremburg the same issues came up.

In one sense I agree that holding heads of state accountable for international laws to which they are not signatories is logically questionable. Yet...should the Idid Amins of the world have it their way? Sovereignity ain't what it used to be.

The whole subject of "international law" is contentious. From what I have gathered, it seems as if countries pick and choose the ones they want to follow. The whole concept of holding a country accountable to international law when that country did not willingly accept those laws, hints at a power that lies above the top levels of power in that country. This precedent, IMO, points at a world governing body...that is not very organized.

If this trial goes poorly and Saddam exploits all of the wiggle room caused by this disorganization, I can see the world community coming together to firm up the legal basis for holding countries accountable. Which could possibly lead to the US being held accountable to more, if not all, international law...

Or the trial will be a complete sham and Saddam will just be killed outright.

I don't know if I could defened the claim that he can be held liable in a strict legal sense.

The whole concept of the Iraqis holding Saddam accountable sounds like good politically, however, realistically, what they are doing is making laws to hold Saddam accountable after the fact. Saddam could totally stand behind a statement that he was not guilty of any crimes at the time the alleged incidents occured.

Yet, on the other hand, we'd be in our rights to simply kill him as a political assassination. This is the better route! As it's his own people trying him, we sidestep the issue anyway.

I hate to armchair quarterback this one, but I think that it would have been much better for the US for the soldiers that found Saddam in his hole, to have killed him outright. I think that by putting him on trial, we are giving him the best possible route to being able to personally strike back at us for this war.

 

[arnisador]

Well, he got a delay, though not as long as he'd hoped:
http://news.yahoo.com/fc/world/iraq

He also plead innocent and scuffled with the guards:

Saddam — holding a copy of the Quran he brought with him into the session and held throughout — replied quietly, "I said what I said. I am not guilty," referring to his arguments earlier in the session.

Amin read out the plea, "Innocent."

The confrontation then became physical. When a break was called, Saddam stood, smiling, and asked to step out of the room. When two guards tried to grab his arms to escort him out, he angrily shook them off.

They tried to grab him again, and Saddam struggled to free himself. Saddam and the guards shoved each other and yelled for about a minute.

It ended with Saddam getting his way, and he was allowed to walk independently, with the two guards behind him, out of the room for the break.

 

[arnisador]

It would've been simpler had he been killed, but whether it would've been better is hard to say until after the trial is over. Would it have been better to have killed Manuel Noriega? I really don't know.

I too have some qualms about the justification for imposing international laws on heads of soveriegn states, and about the possible ex post facto nature of the charges against Saddam Hussein. Still, we must be able to hold these people accountable, and no one wants a true World Court. Maybe someday we'll all follow the EU's example.