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Briefing: Upholding the Right to a Fair Trial? Trying Saddam Hussein

05 January 2004

An overview of the proposed 'Iraqi Special Tribunal for Crimes Against Humanity' and its implications for the furtherance of human rights law.

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Islamic Human Rights Commission
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Briefing: Upholding the Right to a Fair Trial: Trying Saddam Hussein

1. Introduction
2. Why the Right to a Fair Trial
3. Legitimacy of the tribunal
4. What crimes will be tried at the tribunal?
5. How will the tribunal work?
6. Will non-Iraqis play a role?
7. Should there be more international involvement in the tribunal?
8. Are due process rights guaranteed?
9. Why not prosecute Saddam Hussein at the International Criminal Court?
10. Conclusion

1. Introduction

On 10 December, the Iraqi Governing Council announced the establishment of the ‘Iraqi Special Tribunal for Crimes Against Humanity’ (Special Tribunal). Upon the capture of Saddam Hussein, the Governing Council announced that he would be tried at the tribunal. The US made it known that they would support his trial at the ‘hands of the Iraqi people’.

2. Why the Right to a Fair Trial

As enshrined in international law, anyone accused of a crime, ‘shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’ (Article 14 ICCPR). Saddam Hussein is no exception and should also be afforded this right. However the upholding of this right goes beyond that of observing the rights of one person. It is the only way of providing true accountability and thus delivering justice to the victims. This is particularly so since the impact of the trial will have deep repercussions on post-conflict transition and the commitment to the rule of law in Iraq.

3. Legitimacy of the tribunal

The tribunal must be independent of political interference. The context within which the tribunal has been created, and will function, already casts doubts on its legitimacy. Its establishment whilst under occupation raises concerns as to whether it can really deliver justice or, indeed, whether it was set up for that purpose.

Although it is supposed to be a trial of the Iraqi dictator by the Iraqis themselves, skeptics envisage that the United States will play a significant role behind the scenes in ensuring that the trial proceeds in a manner they would like it to. Thus, many question the independence and impartiality of the trial, aware of the strong possibility of political influence by such external, as well as internal, factors. In such a situation the need to uphold, and be seen as, upholding the right to a fair trial is essential for the tribunal’s credibility and legitimacy, both in Iraq and elsewhere.

4. What crimes will be tried at the tribunal?

The tribunal has jurisdiction to investigate and prosecute Iraqi nationals or residents accused of war crimes, genocide and crimes against humanity as well as certain crimes under Iraqi law.

The tribunal will have jurisdiction over crimes committed between July 17, 1968, the date the Ba’ath Party came to power in Iraq and May 1, 2003, the date President Bush declared the end of major combat operations in Iraq. The court will also try cases of violations committed against Iran during the 1980-88 wars between the two countries, and against Kuwait during the Iraq invasion in 1990.

5. How will the tribunal work?

The tribunal will have at least one trial chamber, each with five judges and an appeal chamber with nine judges. The President of the Appeals Chamber will be the President of the Tribunal. The judges will be appointed by the Iraqi Governing Council, who will consult with a new Judicial Council.

Around twenty Investigating Judges will be appointed, each working independently with a team to investigate individuals and gather evidence. A Chief Prosecutor will also be appointed with up to twenty Prosecutors, and an Administration Department will be set up.

6. Will non-Iraqis play a role?

The statute specifies that the judges, prosecutors and the director of the Administration Department will be Iraqi nationals. However it does provide for the possibility of appointing non-Iraqi judges with experience in dealing with crimes against humanity, genocide and war crimes. They may be appointed if the Governing Council decides this is necessary. Non-Iraqi experts will be able to assist judges in matters relating to international law and on the experience of other international war crimes trials through advisory capacities or simply act as observers.

It also allows for the assignment of non-Iraqis to assisting Investigating Judges and prosecutors in the investigation and prosecution of cases. Non-Iraqi lawyers can be part of the legal defence team, although Iraqi lawyers must head the teams.

7. Should there be more international involvement in the tribunal?

One of the key challenges faced by the tribunal is its technical capacity to investigate and prosecute these crimes. The accusations against Saddam Hussein span over several decades and involve hundreds of violations. Added to this is the existence of a weak Iraqi justice system which is severely lacking in every aspect, and will take a very long time to rebuild, particularly in terms of human resources.

Although the Statute acknowledges this potential need to deal with Iraqi inexperience of such complex and serious crimes, it fails to address this problem adequately. Firstly, by limiting the appointment of non-Iraqi judges to the position of judge only and not prosecutor or investigating judge, it limits areas in which international expertise would be invaluable. Secondly, the Statute does not impose a requirement of experience in dealing with these types of crimes in the selection of Iraqi judges and prosecutors. Their lack of experience in dealing with such complex crimes will seriously affect their ability to ensure a proper and fair trial. The appointment of non-Iraqi expert needs to go beyond that of only an advisory capacity.

Other tribunals such as Yugoslavia, Rwanda and Sierra Leonne have found it crucial to have international experts to prosecute these crimes in an effective manner. In particular the tribunal should seek to involve countries with direct experience investigating and prosecuting crimes against humanity, war crimes and genocide.

8. Are due process rights guaranteed?

Suspects should be brought to justice in proceedings that are consistent with international norms and standards for fair trial. The Statute does include many due process rights and allows for the appointment of non-Iraqis to monitor this area. However it is essential that these rights are maintained from the outset and applied more thoroughly and consistently with international law. For example although the statute includes a presumption of innocence, it does not state the guilt must be proved beyond reasonable doubt. Meeting this standard of proof is essential in providing a fair trial.

9. Why not prosecute Saddam Hussein at the International Criminal Court?

The International Criminal Court is the first permanent international war crimes tribunal. It will prosecute cases of genocide, war crimes and crimes against humanity committed after July 1, 2002, and does not have jurisdiction over crimes committed before that date. Moreover, the principle of complementarity means that the ICC will only pursue a case where the state party is unwilling or unable to do so. Since Iraq has set up a tribunal, the matter would not go to the ICC.

10. Conclusion

The trial of Saddam Hussein will be one that is followed closely and scrutinised by the world. To achieve credibility both home abroad it is essential that the tribunal operates independently and in line with international fair trial standards. Only then will it be seen as an institution that is able to dispense justice and not just another puppet institution set up by the US, to mimic its own disregard for the international rule of law.

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