Law Experts Divided Over Legitimacy of Tribunal

Times Staff Writer

When Saddam Hussein declared Wednesday that the Iraqi war crimes tribunal had no right to put him on trial, he was not the first to raise questions about the panel’s legitimacy.

Although some legal experts say the court is properly prosecuting the former Iraqi president, others say that the lack of international authorization puts its legitimacy in doubt.

Diane M. Amann, a professor of international law at UC Davis, said questions had arisen because the United Nations had not sanctioned the court, as it had the special tribunals created to try alleged war criminals in the former Yugoslavia, Rwanda and Sierra Leone. “There are serious questions about the authority under which this court has operated and is now operating, in part because of the novelty and uncertainty of the regime that is ruling Iraq today,” she said.

David M. Crane, who served as chief prosecutor for the special war crimes court in Sierra Leone, said the Iraqi tribunal’s legitimacy was “tenuous at best” because it was “set up outside international norms.” He said he feared it would be forever tainted by the image it was “a kangaroo court set up by and for the U.S.”


Other legal experts disagree. The Geneva Convention “permits the occupying authority to change judicial institutions to secure the rights of the people,” said Mike Newton of Vanderbilt Law School in Nashville. “The U.S. could have created this tribunal under that authority alone.”

Moreover, even though the original statute creating the court was enacted under the Coalition Provisional Authority that governed Iraq after the 2003 U.S.-led invasion, the “democratically elected sovereign” Iraqi legislature amended the law in August, thereby making the court legitimate, said Michael P. Scharf, professor of law at Case Western Reserve Law School in Cleveland.

Newton and Scharf helped train judges who are now working for the tribunal, including Rizgar Mohammed Amin, chief judge at the trial of Hussein that began Wednesday. The former dictator and seven co-defendants stand accused of crimes stemming from the killing of 146 Shiite Muslims in 1982 after an attempt on Hussein’s life.

All eight defendants face the possibility of a death sentence under the tribunal’s rules. The United Nations has declined to assist the court in any way because it considers the death penalty a violation of human rights.

In court Wednesday, Hussein defiantly declined to provide his name when he first addressed the judge, proclaiming that the tribunal was illegitimate. “I will not answer to this so-called court, with all due respect to its people, and I retain my constitutional rights as the president of Iraq,” he said.

Many legal experts said they expected Hussein and his attorneys to continually challenge the legitimacy of the Iraqi High Criminal Court by asserting that it was created illegally while an occupying power -- the United States -- ran the country.

However, late in the session Wednesday, Hussein entered a not guilty plea, as did his codefendants.

“That was a huge symbolic moment,” because by entering a plea Hussein at least implicitly “recognized the legitimacy of the Iraqi special tribunal by playing by its rules,” Scharf said.

Lawrence Douglas, professor of law and social thought at Amherst College in Massachusetts and author of a book on war crimes trials, agreed. “That was a remarkable moment. It seemed like his first gesture was to create the image that he was above engaging in conversation with the court, that he would look down on them like Slobodan Milosevic has done in his trial at The Hague,” Douglas said. Milosevic refused to enter a plea, and the judge in his trial entered a not guilty plea for him.

Douglas said Hussein’s action reminded him of something that happened at the 1961 Jerusalem trial of Adolf Eichmann, the engineer of Hitler’s “Final Solution.”

“Gabriel Bach, the assistant prosecutor who later became a judge on the Israeli Supreme Court, told me that for him the most remarkable moment in the case was when the three judges entered the courtroom and Eichmann stood, because it meant he was conferring legitimacy on the court,” Douglas said.

Richard Dicker, an attorney with Human Rights Watch who is in Baghdad to observe Hussein’s trial, cautioned against making too much of the decision to enter a plea. “I think that is indeed a recognition of the lawfulness in some ways of the tribunal,” he said. “But I don’t think that means he will stop challenging the legitimacy and lawfulness of the tribunal.”

Human Rights Watch has long urged U.S. and international officials to prosecute Hussein and his colleagues, but since he was captured nearly two years ago, the group has raised questions about whether the ousted leader would get a fair trial. In a telephone interview Wednesday from Baghdad, Dicker said he was pleased the Iraqi legislature, on Tuesday, had finally published the new statute for the tribunal in the government gazette.

He said it came “not a moment too soon. There is a lawful basis for this tribunal now.... Iraq is a sovereign state, and as a sovereign state it is empowered to enact laws for its own tribunals. I do not think there is a reasonable challenge to the lawfulness of the tribunal now. But that does not mean Saddam and his lawyers won’t raise those arguments, as they are free to do, just as others will challenge the political legitimacy of the tribunal.”

David Scheffer, law professor at Northwestern University in Illinois and a former U.S. ambassador for war crimes, said he expected Hussein’s defense to challenge the legitimacy of the tribunal when the court reconvenes Nov. 28.

“There is much precedent in the practice of the international criminal tribunals with challenges to legitimacy, and yet this will be a challenging study in occupation law, international law and Iraqi law to arrive at a reasoned judgment in response to any such motion,” Scheffer said.

Leila Sadat, who teaches law at Washington University in St. Louis, said she had reservations about the way the court was created. However, she said, Hussein’s lawyers faced a “really uphill battle” challenging the court’s legitimacy. She said no defendant had ever successfully challenged the legitimacy of a war crimes tribunal.

Nicholas Howen, secretary-general of the International Commission of Jurists, said Wednesday at a news conference in Geneva that his organization had “concerns on whether this is an independent and impartial tribunal, particularly as there is a very close involvement by the U.S.-led coalition.”

The question of the tribunal’s legitimacy is complex and is likely to evolve over time, said Linda Malone, a law professor at the College of William and Mary in Virginia.

“It seems to me the model we now see is a repressive government committing atrocities against its own population, destroying the rule of law in that country, and when that regime is deposed either internally or externally, the question is how to punish the perpetrators,” Malone said.

“There are serious questions about the legitimacy of the tribunal,” in part because it is a hybrid, using some Iraqi law and some international law, Malone said.

“I came to the unavoidable conclusion that Saddam should be tried. The question was how. The United Nations was not going to provide any help to a tribunal that had the death penalty,” something the Iraqis insisted on, Malone said.

Malone said she was not surprised that Hussein challenged the legitimacy of the tribunal. On the other hand, she said, “it is ironic to anyone watching this trial that Hussein, who is such an icon of injustice, is now trying to transform himself into the poster boy for fair trials and due process.”