Saddam's trial: the needs of justice, Veerle Opgenhaffen Hanny Megally

Tue, 18 Oct 2005 23:00:00 +0000

After months of speculation, the long-awaited trial of Saddam Hussein and his close associates is finally underway in Baghdad today, 19 October 2005, with the ex-dictator already pleading “not guilty” to initial charges laid against him over the Dujail massacre of 140 civilians in July 1982.

This event represents one of the most ambitious attempts in recent decades to bring perpetrators of mass crimes to justice in a domestic setting. It is significant not only because of the severity of the charges being brought – which include genocide, torture, and forced deportation – but also because of the enormous range of challenges currently facing Iraq.

Also in openDemocracy on legal and moral accountability for political crimes:

Anthony Dworkin, “The trail of Milosevic: global law or war?” (February 2002)

Victor Peskin, “After Zoran Djindjic: the future of international criminal justice” (March 2003)

Nahla Valji, “No justice without reparation” (July 2003)

Anthony Dworkin, “The trials of global justice” (June 2005)

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The series of trials, of which the arraignment of Saddam Hussein is only one part, is being conducted by the Supreme Iraqi Criminal Tribunal (Sict) – formerly the Iraqi Special Tribunal, set up in October 2003 under the auspices of the Iraqi Governing Council. The process could be of great importance to hundreds of thousands of victims of Iraq’s former Ba‘athist regime, while potentially offering hope to victims across the middle east and north Africa who also seek an end to state-sanctioned impunity. Nonetheless, the ability of the tribunal to deliver a fair and impartial judicial process will be severely tested; a failure to meet this test could aggravate tensions and perpetuate injustice.

From the inception of the judicial process to hold leading members of the former Ba’ath regime to account, there has been much concern that it has been inordinately dominated by the United States government, and that its results will thus be seen as little more than “victors’ justice”. This has been complicated by national political actors who have sought to interfere with the process by making prejudicial statements and forcing the dismissal of key tribunal personnel like the court administrator. Ongoing susceptibility to political pressures from within and outside Iraq has greatly fuelled doubts about the tribunal’s independence.

In addition, the Iraqi judiciary is operating as a body weakened by thirty-five years of dictatorship and is struggling to renew itself under less than ideal circumstances. Expecting it to try international cases, despite only brief exposure to international norms, compounds the challenges they face as a domestic legal system recovering from prolonged upheaval. The question of whether the tribunal – which will largely apply Iraqi domestic procedures within the civil law context – will be fair, consistent, and duly respectful of international fair trial standards, particularly in relation to the accused, remains critical.

Also by Hanny Megally & Veerle Opgenhaffen in openDemocracy:

“Algeria’s past needs opening, not closing” (September 2005)

This difficult context is exacerbated by the deteriorating security environment in Iraq, and aggravated by increased internal tensions over ethnic and religious differences. Amid such circumstances, to establish a process whereby witnesses will come forward and be adequately protected creates significant logistical and communication problems; solving these will be crucial to the efficacy of the trials.

The key to legitimacy

Despite all these well-founded concerns, there is also significant hope that domestic trials in Iraq - if conducted fairly – could have four major benefits:

assist Iraq’s emergence from a history of severe political violence and grave human rights abuses

signal a clean break with former official criminal behavior and indicate that perpetrators are no longer untouchable

strengthen the new state’s legitimacy by publicly fulfilling its obligations to victims and their families

create an unequivocal and detailed public record of events.

Whether the Supreme Iraqi Criminal Tribunal is capable of delivering trials that meet these standards is far from certain. Despite its dedicated personnel, the tribunal’s independence must remain under scrutiny. The current security situation has greatly slowed down its work and shrouded many of its activities in secrecy. This lack of transparency – coupled with the influence of the US – has further compounded public distrust, reducing the legitimacy of the process in the public eye, and possibly affecting the evidence that will be presented at the trials themselves.

The International Center for Transitional Justice has been involved in Iraq since mid-2003 and has followed the Supreme Iraqi Criminal Tribunal’s establishment closely. For a thorough briefing on the Sict’s history, activities, and possible outcomes from a transitional justice perspective, see the ICTJ’s recently released briefing paper

In this context, the Sict should as a matter of urgency develop a proactive, coordinated media and communication strategy. By doing so, the court will address the concerns of victims and the Iraqi public – most of whom will never have the chance to be present in the courtroom – by keeping them regularly updated and informed about the progress, goals, and functioning of the court and the trials.

Those involved in conducting the trials must guarantee that they strictly adhere to international standards throughout the process, thus addressing some critics’ concerns regarding the tribunal’s legitimacy and independence. Ensuring that the defence is properly able to mount its case will go a long way towards illustrating the court’s capacity to operate independently.

The Baghdad tribunal faces an uphill battle to overcome problems of legitimacy, independence, and undue political pressures – challenges that would test even the most sophisticated legal systems. In addressing it, the tribunal would do well to focus on two key areas: fairness and communication. If it can focus on international norms for fair trial standards while increasing transparency through concerted media and public outreach, the tribunal could greatly diminish the perception problems that surround it.

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Saddam's trial: the needs of justice, Veerle Opgenhaffen Hanny Megally