Iraqi-Run Trial Holds Promise and Peril

Saddam Hussein most likely will be tried in Iraq under terms set by a war crimes tribunal created by the Iraqi Governing Council last week and sanctioned by occupation authorities.

Experts say a clean trial could afford Iraqis both a way to confront their bloody past and an opportunity to take crucial steps toward building a democracy governed by law rather than brute force. It will be a crucial test of the ability of Iraq’s new leaders to run the country and could help them establish legitimacy in the eyes of their people and the rest of the world.

However, an Iraqi-run trial is likely to face serious obstacles. The country lacks a tradition of rule of law and has little experience using the internationally accepted rules of evidence and due process that would be necessary to make the trial credible in Iraq and the Arab world, international legal experts say.

Prosecutors also must avoid taking shortcuts in a trial in which the former Iraqi leader will probably face the death penalty.

“The capture of Saddam provides an opportunity that either will continue the cycle of revenge or begin the rule of law,” said Kenneth Roth, director of Human Rights Watch, a nonprofit group that gathered evidence for a genocide case against Hussein for the mass killings of Kurds.

There are also political considerations in how the trial is organized. With Hussein now being held by the Americans and due to be interrogated for weeks, it is crucial that the proceedings not be seen as a victor’s justice manipulated by the United States. If that happens, it could end up generating sympathy for Hussein.

“The image of him in the dock day after day will become a human symbol of the humiliation many Iraqis feel their country is being subjected to,” said Harold H. Koh, a Yale law professor who served as assistant secretary of State for democracy, human rights and labor in the Clinton administration. “The way they structure the trial will have to be sensitive to those images.”

One prominent Iraqi exile said the process must help Iraqis move into the post-Hussein era.

“His trial must be an opportunity to educate the nation and make the psychological transformation from the past to the future,” said Laith Kubba, a prominent Iraqi who opposed Hussein while living in exile and is now the senior program officer for the Middle East and North Africa at the National Endowment for Democracy.

“What is important in these trials is not to put on trial the person of Saddam Hussein, but his deeds -- so that if those deeds are repeated by other rulers, they will have to be dealt with equally seriously.”

There is little question that Iraqi judges, lawyers and investigators will have to learn quickly. Some of the steps ahead have already been endorsed by the Iraqi Governing Council, but many more have yet to be decided.

Although there is some debate in the international legal community over whether Hussein should be tried by an international or Iraqi court, there is broad agreement that he should be tried in Iraq. And there is little question that Hussein’s trial will be public -- a move that is broadly supported by the Iraqi people -- although Iraqi experts as well as international legal observers say it may have to be televised for the safety of all involved.

“Saddam will stand a public trial so that the Iraqi people will know his crimes,” Ahmad Chalabi, the head of the Iraqi National Congress and a member of the Governing Council, said Sunday.

Rend Rahim, Iraq’s recently appointed representative in Washington, agreed that a public trial would be crucial to Iraq’s ability to move forward.

“It is very important for Iraqis, as this process of catharsis, this process of healing -- they have to see him tried,” Rahim said, adding that Hussein would have the right to counsel and the right to appeal.

Under the law approved last week, the tribunal will have Iraqi judges, prosecutors and defense attorneys but may include international advisors and international judges.

Chalabi’s nephew, Salem, a New York lawyer, estimated that preparing cases against leading suspects will take at least six months, allowing time for the transfer of sovereignty to Iraqis.

Although the death penalty was temporarily suspended in Iraq by the American-led Coalition Provisional Authority, it is widely expected to be reinstated once sovereignty returns to the Iraqis. Although much of the world is opposed to the death penalty, it is unthinkable to most Iraqis that the man they accuse of ordering the murder of their sons and daughters, husbands and fathers, would be allowed to live if he is found guilty.

There is still division in the international legal community about whether the trial judges should include foreign legal experts. Many assert that international jurists must be included in order to make the proceedings fairer and less politicized. It might also be difficult to find Iraqis willing to assume that role because judges have been targeted for assassination.

Regardless of who the judges are, it will be difficult for Iraqis to build the case against Hussein without considerable international help.

Investigators and prosecutors must sift through millions of documents to build a case against Hussein. Many of the documents are in the custody of the U.S., which scooped up truckloads when its troops entered Baghdad. However, some of the files are with former opposition parties in Iraq. All of the documents will have to be gathered and organized.

“No Iraqi jurist has had any experience putting together a complex criminal case such as genocide,” said Roth of Human Rights Watch. “These cases are very, very complex.”

To counter a possible charge of genocide against the Kurds, he said, Hussein’s defense team is likely to claim that the Kurds were killed because they were armed insurgents. Such arguments require experience and skill to counter, he said.

One of the first and most difficult tasks will be to decide what crimes Hussein should be indicted for. Among them are the Anfal campaign against the Iraqi Kurds -- which resulted in the deaths of about 100,000 civilians and the destruction of more than 4,000 villages -- the use of chemical weapons against Iranian troops and Kurdish civilians, the large-scale killings that followed the failed 1991 uprisings in the north and south of Iraq, the repression of the so-called Marsh Arabs and the destruction of their environment, and the forced expulsion of ethnic minorities in northern Iraq during the “Arabization” campaign. Foreign governments, including Iran and Kuwait, might also want to try him.

So many Iraqis have been affected by Hussein’s deeds that it would be hard to justify excluding large numbers of possible charges in prosecuting the former dictator, but it would also be unwieldy to try him for every heinous allegation.

If Hussein does go to trial, he would be only one of a handful of former heads of state to face justice for their actions in office, among them former Serbian leader Slobodan Milosevic.

The lessons of the trial may be relevant not only for Iraq but also for other Arab countries whose governments are beginning to study ways of coming to terms with their despotic pasts, including truth commissions.

“Many countries in the region -- Morocco, Algeria, Bahrain -- are tackling the question of how to deal with these past abuses, disappearances, murders,” said Hanny Megally, a human rights expert of Egyptian background who heads the Middle East and North Africa program at the Center for Transitional Justice.

“So if this provides a carefully worked out process that’s fair, impartial and not politicized ... others will want to see if they can do the same in their countries.”

M. Cherif Bassiouni, a professor of international law at DePaul University in Chicago who headed the U.N. Security Council Commission investigating war crimes in the former Yugoslavia and was involved in writing the draft law that led to the creation of the Iraqi tribunal last week, said there had been too little thought given to the scope of Hussein’s trial.

“There has not been enough thought given to whether the trial of Saddam is going to be a historic trial of the 30 years of the Baath regime,” which would be a lengthy and complex undertaking. Bassiouni said the Iraqis were not equipped to conduct such a trial without a great deal of assistance from the U.S. and other countries.

U.S. officials have said for months that they envisioned a three-tiered legal process in Iraq for bringing former regime leaders to justice. Top officials would be tried by the tribunal; those less senior would be tried in existing Iraqi courts, and rank-and-file government officials and troops could go before a truth-and-reconciliation commission similar to one in post-apartheid South Africa.

Even if the tribunal initially prosecutes only Hussein, it would be a crucial step for the country, Rahim said.

“You can’t imagine how many people will step forward -- victims, survivors, people whose bodies are mutilated or whose relatives were executed,” Rahim said, adding that the process will “lead to a national reconciliation, to Iraq being able to move forward and, in a sense, look at its past and say, ‘Never again.’ ”

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Times staff writers Aaron Zitner in Washington, Maggie Farley at the United Nations and Carol J. Williams in Baghdad contributed to this report.