Out of 500 possible charges, prosecutors in the acclaimed “trial of the century” have narrowed it down to 12 documented cases to be presented against the former leader of Iraq, Saddam Hussein. Since October 19, 2005, the slow progress of Saddam's first trial has descended into mayhem. The circumstances surrounding the trial and the court proceedings have raised serious doubts about the fairness and legitimacy of the Iraqi Special Tribunal.
Like the Nuremberg Trials and the Milosevic Trial, the Iraqi Special Tribunal attempts to carry out justice against Saddam Hussein for the atrocities committed during his reign. Unlike the previous war criminal trials conducted by international tribunals, Saddam is facing a tribunal of his people. Ironically, the Iraqi tribunal, funded and supported by the United States that ousted the leader, was formed by the Iraqi government consisting largely of Shiite and Kurd groups who had once been victims of Saddam's oppression.
A Fair Trial
To legitimize any court trial is to grant the defendant a fair trial, following legal procedures according to law.
Established in 1948, the Universal Declaration of Human Rights (UDHR) affirms the rights of everyone — "to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law" (Article 8), "to a fair and public hearing by an independent and impartial tribunal" (Article 10), and "to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence" (Article 11). International law recognizes that a fair trial must be based on decisions made by a competent, independent and impartial tribunal.
Moreover, those rights have been enshrined in various international and regional human rights treaties, including the Basic Principles on the Independence of the Judiciary. Even Iraq ratified the International Covenant on Civil and Political Rights (ICCPR) in 1971, which explicitly states in Article 14 — "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Thus, the Iraqi government is still bound by it.
First Trial of Saddam
Saddam and seven co-defendants have been on trial for the 1982 killings of 148 Shiite villagers in Dujail after a failed assassination attempt against the head of Iraq. A guilty conviction could warrant a death penalty. Future cases will likely include Saddam's Anfal Offensive that killed 180,000 Kurds in late 1980s, allegedly poison gas attack on Halabja that killed supposedly 5,000 Kurds in 1988, suppression of Kurdish and Shiite revolts in 1991, and invasion of Kuwait in 1990.
In the eyes of the world, Saddam's first trial is seen, at best, as courtroom drama entertainment and, at worst, a parody in executing judicial justice. Since the beginning, the trial has been plagued by delays, courtroom brawls, hunger strikes, walkouts in protest, boycotts by the defense team, no-shows by witnesses or defendants, assassinations of two defense lawyers, departures of numerous defense attorneys, resignation of a chief judge, removal of another judge, installing a temporary biased chief judge — and the trial is not over yet. Even Saddam denounces the court as a "comedy."
Legality in Question
The mounting illegal proceedings in the trial only affirm the standards of a kangaroo court. The Iraqi Special Tribunal, created in 2003, appears to be operating under its own set of rules — half-heartedly embracing international laws while upholding some old Iraqi laws.
Laws for establishing an independent and impartial tribunal for a fair trial have been blatantly ignored:
— A five-judge panel that consists of only Shiites and Kurds was selected to pass judgments on defendants. Sunni, the ethnic group of the defendants, was excluded.
— Lowering the standard of proof, judges can now issue a guilty verdict for being "satisfied" by the evidence instead of "convinced beyond a reasonable doubt."
— The Iraqi government has been involved in political manipulation of the court, forcing Chief Judge Rizgar Mohammed Amin "for being too lenient" to resign and appointing Raouf Abdel Rahman from Halabja, a Kurd with a conflict of interest to Saddam, as the temporary chief judge.
Laws for ensuring safety to those involved in the case and due process for a fair trial have been breached:
— The occupation forces, along with the Iraqi administration, are unable to ensure security for judges, lawyers, witnesses and others who attend the trial. In fact, about 1,100 out of 1,500 lawyers withdrew from the defense team after the slayings of two attorneys and injuring one other in the increasing violent and chaotic turmoil in Iraq. (Violating the International Humanitarian Law)
— Saddam's attorneys are denied the same rights and resources as the prosecutors in his trial. The U.S. troops and dozens of American lawyers have been assisting the prosecution team. In contrast, foreign attorneys from different countries for the defense team haven’t been able to enter Iraq to visit their clients regularly, while attorneys in Iraq have been working without access to phones, faxes, computers, or books. Worse still, legal notes from the defense members are subjected to American officials' approval before they are passed on to the defendants. [Violating the UDHR, Article 11; ICCPR, Article 14(3b)]
— Chief Judge Rahman continued the trial for hours in one session, examining witnesses without the required presence of the main defendants and their defense lawyers who were either removed or walked out in protest. [Violating the ICCPR, Article 14(3d)]
In addition, the irregular presentation of evidence by the prosecution team raises suspicion: unseen witnesses testifying or their testimonies read in court; silent videotapes played with read transcripts; and witnesses on the stand claimed that they didn’t want to be witnesses.
Furthermore, the heavy-handed approach by Chief Judge Rahman calls into question about the legality and impartiality of his conduct: summoned defendants to be physically dragged into court while their attorneys stayed away in a boycott; silenced Saddam's testimony on the stand by turning off his microphone and throwing the press out; and continued the trial with court-appointed attorneys to replace defendants’ chosen lawyers who walked out in protest for a month.
Legitimacy in Question
To legitimize any court is to ensure independent establishment with impartial judges to conduct a fair trial according to law. The Iraqi Special Tribunal has raised doubts about its legitimacy for the following reasons:
— It is the product of an illegal U.S.-led invasion.
— The U.S. has been the driving force behind the tribunal and the trial by providing logistical and financial assistance.
— Along with the United Nations, Amnesty International declared: "The statute of the Iraqi Special Tribunal currently in place is not consistent with international law."
Saddam, charged with crimes against humanity, should be held in an international tribunal with experienced judges and prosecutors in a transparent trial with adequate due process. From the outset of the trial, the defendants and their lawyers accused the tribunal as illegitimate. It's no wonder that Saddam and other defendants rebelled with outbursts, insults, tirades, walkouts, hunger strikes, and other behaviors in court.
(First published on UniOrb.com, May 1, 2006)