Iraq: Hussein Goes on Trial Tomorrow, and Iraqis See a First Accounting

What should be a moment of triumph for Saddam Hussein's victims is instead stirring concern about the fairness and competence of the court itself.

SPIEGEL ONLINE - October 18, 2005, 11:58 AM
Hussein Goes on Trial Tomorrow, and Iraqis See a First Accounting
By John F. Burns

BAGHDAD, Iraq, Oct. 17 - On Wednesday, 22 months after he was dragged from his hiding place in an underground bunker, Saddam Hussein will appear in an Iraqi court to answer for the brutalities he inflicted on his fellow Iraqis. But what should be a moment of triumph for his victims is instead stirring concern about the fairness and competence of the court itself.

The special Iraqi tribunal established to conduct the trial has chosen a case that many Iraqis believe to be too narrow to answer the widespread yearning for Mr. Hussein to be held to account for the most savage of his crimes. And the political pressure to hasten the trial has forced the tribunal to accelerate some of the work needed to prepare for other cases involving tens of thousands of victims, nearly 300 mass graves and about 40 tons of documents gathered from the government agencies that oversaw his repression.

While many Iraqis are eager for the moment when they see Mr. Hussein in the dock, Western human rights groups and legal experts have warned that the former dictator is unlikely to get a fair trial, and that the probable outcome, a death sentence, will be what the tribunal's harshest critics have described as "victor's justice."

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Critics here and abroad have said that the proper forum for the trials would have been an international tribunal of the kind that has spent four years hearing the case against the former Yugoslav president, Slobodan Milosevic, in The Hague.

Mr. Hussein, along with seven other defendants, will begin the accounting for his past in a case centering on the execution of more than 140 men and teenage boys in Dujail, a mostly Shiite market town 35 miles north of Baghdad. The victims were seized by the secret police after an assassination attempt against Mr. Hussein there in 1982.

Iraqi officials say they expect the trial to be quickly adjourned, possibly after an opening session of only a few hours. The next session could be delayed for weeks, possibly until after the new year, partly to weigh motions for dismissal by defense lawyers.

Even tribunal officials, who asked not to be identified because they feared they could be dismissed, say a quick adjournment could be a relief, sparing them the embarrassment of seeing the proceedings unravel as inexperienced Iraqi judges and prosecutors are exposed to the pressure of a trial that will attract worldwide attention, and to arrangements in the courtroom, including an on-again-off-again dispute over live television coverage, which have been the subject of last-minute wrangling.

The concern that the tribunal will not first take up the most sweeping and heinous of the crimes ascribed to the 68-year-old former ruler runs strongest among the Shiites and Kurds who suffered the most at his hands, and whose representatives now dominate the government.

Iraqi and Western human rights groups estimate that at least 300,000 Iraqis, mostly Shiites and Kurds, were killed by Mr. Hussein's ruthless machinery of repression, a figure that does not count the hundreds of thousands who died in the wars he conducted against Iran and Kuwait.

Iraqi officials say they chose to begin with the Dujail case, in the face of government pressure to hasten Mr. Hussein into court, because it would be relatively straightforward to prosecute, centering on a sequence of well-documented events, from the day of the assassination attempt through the death sentences handed down by Mr. Hussein's court and the executions at Abu Ghraib prison.

The pressure has come from Iraq's new rulers, many of whom were victims of Mr. Hussein and his associates, having lost relatives in his gulag and fled into exile themselves. Senior tribunal officials, speaking on condition of anonymity, gave as their reason for acceding to government pressure the threat of being dismissed, as nine administrative officers were in July, under a mostly unenforced tribunal provision barring anybody who was a Baath Party member from work as an investigator, prosecutor or judge. Under Mr. Hussein, party membership was a requirement for any Iraqi entering a judicial college.

The political interference has been vigorously resisted by Americans who work in the Regime Crimes Liaison Office, established to help prepare for the trial, and, on several occasions, with direct appeals to the Iraqi leaders by officials in the White House and the State Department, tribunal officials say. The pressures began almost as soon as formal sovereignty was restored to Iraq last year, under Prime Minister Ayad Allawi, and have continued under the successor government of Prime Minister Ibrahim al-Jaafari.

Iraqi leaders have forced the appointment and later dismissal of a succession of tribunal officials in the past 15 months, including three men who served as the tribunal's administrative director.

Recently, the Jaafari government rushed a new charter for the tribunal through the transitional parliament, inserting provisions some critics saw as narrowing defendants' rights laid out in the earlier, American-drafted charter. One change, critics say, could be used to substitute a Hussein-era standard for finding defendants guilty - the "satisfaction" of the judges - replacing the American standard of requiring guilt beyond a reasonable doubt.

But perhaps the most serious interference has involved the pressure that Iraqi politicians have placed on the tribunal to fast-forward Mr. Hussein's first trial and to impose a quick death sentence. The most egregious example came last month, when the Iraqi president, Jalal Talabani, a Kurd, and one of three men in Iraq's presidential council who would have to ratify a death sentence against Mr. Hussein, told the state-run Iraqiya television network that tribunal officials had told him that Mr. Hussein had admitted to ordering the massacres of Kurds during an Iraqi military offensive in the closing stages of the 1980's Iran-Iraq war, known to Iraqis as the Anfal campaign.

"He confessed about the Anfal executions, and the orders issued by his name," Mr. Talabani said. "Saddam should be executed 20 times."

On Monday, a strongly critical 19-page review of the tribunal and its legal procedures was issued by Human Rights Watch, the New York-based group, which said its study had "given rise to serious concerns" about the tribunal's "capacity to conduct trials that are fair, and perceived among the Iraqi population to be fair."

Similar criticisms have been leveled by Amnesty International and other human rights and legal monitoring groups in the United States and Europe. Critics have been countered by other Western legal experts who say the tribunal offers safeguards that compare well with those at the international tribunal in The Hague, and exceed by a wide margin anything previously seen in a politically-sensitive trial in the Middle East. Both sides in the argument will have observers at the trial.

Partly, critics have focused on the pervasive American involvement in organizing, financing and guiding the tribunal. That involvement has extended to providing the $138 million that has been used partly to remodel the former Baath Party headquarters in Baghdad into a courthouse with two side-by-side, state-of-the-art courtrooms, and partly to support a team of 50 American, British and Australian lawyers, investigators, forensic experts and archivists in the liaison office.

In the face of an Iraqi legal system that virtually disintegrated under Mr. Hussein, the liaison office has been the real power behind the tribunal, advising, and often deciding, on almost every facet of its work, always behind a shield of anonymity.

The tribunal officials say subsequent trials will deal with Mr. Hussein's more brutal crimes, including the killing of tens of thousands of Kurds and Shiites in pogroms carried out by Mr. Hussein in the late 1980's and early 1990's. They say that preparations for the second case against the former dictator are now nearing completion. That trial will center on attacks on dozens of Kurdish villages in the Anfal offensive, some involving chemical weapons, the worst of them the attack on the town of Halabja in February 1988.

That case, the Iraqi officials say, could eventually run in tandem with the Dujail trial, with Mr. Hussein shuttling, on separate days, between the two courtrooms. The officials say no decision has been made as to whether Mr. Hussein, if sentenced to death in the Dujail case, would be executed before the other trials are completed. But many Iraqis are doubtful that any move to hang the former ruler would be approved by the country's new rulers before at least some of the wider cases have been completed.

Khalil al-Dulaimi, the Iraqi lawyer leading Mr. Hussein's defense, is planning several motions to dismiss the case. The motions will center on three issues: the lack of time defense attorneys say they have had to review 800 pages of evidence amassed by prosecutors; the supposed failure of American and Iraqi officials to allow the attorneys to consult with their clients often enough; and the contention that the tribunal itself is illegitimate, since it was established under the American occupation in 2003, and operates outside of the established Iraqi legal structure.

One issue that was unsettled Monday was whether there would be live television coverage. Officials told broadcasters they expected a television feed from the courtroom to be made available to Iraqi and foreign television networks, but with a 20-minute delay.

The provision appeared intended to allow the tribunal to censor any untoward developments in the court - an outburst from Mr. Hussein, perhaps, or a security breakdown. Only one English-language print reporter at a time will be allowed in the courtroom, a position assigned by a lottery supervised by American officials.

Last month, Mr. Hussein dismissed all the lawyers who had registered with the tribunal to represent him except Mr. Dulaimi, a 42-year-old attorney with limited experience in complex criminal cases, who is from Ramadi, a Sunni Arab city 80 miles west of Baghdad that is a bastion of support for Mr. Hussein. Since last December, Mr. Dulaimi has met with Mr. Hussein at least five times at Camp Cropper, the American Army detention center near Baghdad airport where Mr. Hussein has been held.

One senior tribunal official, speaking on condition he not be identified, said he believed the problems that Mr. Hussein's lawyers have had preparing for the trial stemmed from a strategy that centered on presenting a deliberately weak and disorganized defense that would lend an aura of farce to the trial proceedings. "They want the tribunal to look foolish, and Saddam to look as though he has been deprived of any real defense," the official said. "With the strength of the case against him, it may be their best way of fighting the case."

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