For Iraq, Trial Is Balancing Act

The sheer breadth of the war crimes case against Saddam Hussein, which involves charges dating back 30 years, would be daunting for any country.

But this trial, expected to last for months, will be held in a nation where trials have rarely lasted more than a few days, where the rule of law is a work in progress, and where security is so dicey that the identities of judges are being kept secret.

Against such a backdrop, Iraq’s interim government must balance competing demands of Iraqis who want to see Hussein dealt with quickly and an international community determined to see that he gets a fair trial.

Hussein made clear in his first court appearance Thursday that he would not be the only one on trial. He challenged the legitimacy of the legal system that sought to hold him accountable for atrocities. He implied that the judge and the court were under the control of the United States, and he said that as a head of state, he could not be tried.

In Amman, Jordan, Hussein’s lawyers fumed that the proceedings only proved that their client could not expect a fair trial.

“The mockery of Saddam Hussein’s trial shows there is no democracy,” said Mohammed Rashdan, a Jordanian who heads the international defense team. “They shouldn’t have asked him any questions without a lawyer there.”

Rashdan and other lawyers representing Hussein said they had received death threats from leaders in Iraq’s new government for seeking to defend the former president.

“They say that if any Arab lawyer comes to Baghdad to defend Saddam Hussein, he will be cut to pieces,” Rashdan said. “We need protection. Even in Jordan, we are under threat.”

The lawyers said they were appealing to the U.S. government, the International Committee of the Red Cross and France, Belgium and Britain to secure their passage to Baghdad, and to protect them while they were there.

“It is very important for us to meet our client,” Rashdan said. “We can’t defend him in the dark. It’s already illegal. And if they refuse that, it just makes it more illegal.”

Hussein’s brief appearance, said David Scheffer, a visiting professor at the Georgetown University Law Center and former ambassador-at-large for war crimes issues in the Clinton administration, “showed that it is going to be very complex and very risky to try him.”

It is far too early to tell, Scheffer said, whether “this will be a process that stands up to international scrutiny and that has the kind of integrity that we’re anticipating it should have.”

What happened Thursday was roughly equivalent to a preliminary hearing in the United States. The judge told Hussein he would face charges related to seven alleged crimes, including the 1990 invasion of Kuwait, the 1991 suppression of uprisings by Kurds and Shiite Muslims, the 1988 gassing of Kurds in the northern village of Halabja, the killing of political opponents over three decades and the killing of religious leaders.

Formal indictments -- against Hussein and 11 of his senior associates -- are probably months away.

Cases involving allegations of large-scale war crimes are exceptionally complex. Often the defendant has no blood on his hands, but is accused of having command responsibility. Proving that can be tricky. Often, leaders have destroyed physical evidence. Oral testimony can be difficult to obtain in countries where there were vicious security services that people fear will regain power.

And because these acts are committed during conflicts, leaders who are on trial can also claim that the measures they took were defensive.

The outlines of Hussein’s defense seem clear. His lawyers said that the American-led invasion of Iraq, the selection of the judges and the creation of the court under the former, U.S.-installed Iraqi Governing Council were illegal.

Rashdan, the lawyer, called them “a scandal and a shame on the head of America.” He said Hussein had been questioned without lawyers, stripped of prisoner of war status and was being tried without legal counsel.

Hussein’s legal team, hired by his wife and daughters, includes lawyers from France, Britain, Belgium and the United States, who are working with lawyers from Jordan, Tunisia, Libya and Lebanon.

“The Americans say they have 36 tons of paperwork to prove their case,” said another of Hussein’s lawyers, Ziad Khasawneh.

“But we haven’t been privy to any of it.”

M. Cherif Bassiouni, a professor of law at DePaul University in Chicago who was involved in planning war crimes trials in Iraq, said answering the questions about the legitimacy of the proceedings would be the key to their success.

“There is a fundamental question of whether the Iraqi tribunal law has any legitimacy,” he said.

“The Governing Council which approved the law has no legal authority. It was created by the Coalition Provisional Authority. The CPA is an occupying power that does not have the power to change national law.”

Bassiouni worked to draft a model law for a war crimes tribunal for Iraq as part of the State Department’s Future of Iraq project, which was developed before the invasion. The proposals were shelved by the U.S.-led Coalition Provisional Authority.

Bassiouni said the present tribunal -- whose laws and rules of evidence and investigation were largely determined by American lawyers -- was incompatible with Iraqi law, which provided the legal basis for some of the charges.

Although it is no longer the occupying power, the United States still will loom large. It is footing the bill, and U.S. investigators and lawyers have helped gather evidence, interview witnesses and collect and comb through mounds of documents.

The U.S. involvement makes it even more important, legal scholars say, that the trial be conducted with due process and proceed deliberately.

“The requirement of evidence, the requirement that a war crimes trial not be perceived as victor’s justice means that you can’t really do it in the 10 months it took to carry out the Nuremberg trials” of Nazi war criminals after World War II, Scheffer said. “You can’t go that fast anymore if you want to meet international standards of justice. Speedy justice in Iraq will probably mean incomplete justice, and probably flawed justice.”

At the same time, the new Iraqi government does not want the case to become a platform for Hussein.

The former leader’s performance Thursday left observers with the impression that he would use the trial to grandstand, said Jose Alvarez, who teaches international law at Columbia Law School and has followed the tribunal’s work. “Just by Saddam standing up and saying: ‘I want Rumsfeld to take the stand’ -- to show that other people, other leaders acquiesced in some of these atrocious acts -- has an effect,” he said, referring to now-Defense Secretary Donald H. Rumsfeld’s visits to the Middle East in the 1980s, during which he met with Hussein at a time when the U.S. was trying to improve relations with Iraq.

Rubin reported from Baghdad and Curtius from Washington. Staff writer Megan K. Stack in Amman contributed to this report.

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The charges

Saddam Hussein will face charges in connection with the following:

* The Aug. 2, 1990, invasion of Kuwait

* The 1991 suppression of Kurdish and Shiite uprisings

* The 1988 ‘ethnic cleansing’ campaign against Kurds

* The 1988 gassing of Kurdish villagers in Halabja

* The 1983 slaying of thousands of members of the Kurdish Barzani clan

* The killing of political activists over a 30-year period

* The killing of religious leaders in 1974

Los Angeles Times