JURIST Guest Columnist Jeffrey Addicott of St. Mary's University School of Law says that it is much better to have deposed Iraqi president Saddam Hussein put on trial in an Iraqi court than before an international criminal tribunal along the lines of existing models.
ight months after Baghdad fell, Saddam Hussein was captured from a six by eight foot dirt hole about six miles from his hometown of Tikrit. Since that time, a heated debate has swirled around the issue of the proper forum in which to prosecute him for his wanton criminal actions both against his own people and basic principles of international law regarding genocide, war crimes and crimes against humanity.
An Iraqi war crime tribunal was established December 10, 2003, three days before Hussein's capture. Saddam Hussein first appeared before the war crimes tribunal July 1, 2004, where Hussein and 11 of his lieutenants were informed of charges before them (crimes committed such as genocide, war crimes, crimes against humanity and various Iraqi criminal charges). The charges date from July 14, 1968, when Saddam's Ba'ath Party came to power, until May 1, 2003, when President George Bush declared major hostilities over in the international armed conflict.
A number of observers have expressed concerns over the Iraqi-led process, preferring an ad hoc or special purposes United Nations-styled tribunal, created on the model of the International Criminal Tribunals for the former Yugoslavia and Rwanda tribunal. Their most valid point is in respect to the lack of procedural rules for the Iraqi tribunal. Fortunately, precise rules of evidence for the upcoming trials for Saddam and his fellow high level cohorts will be released within the next few weeks. Hopefully, the rules will fully address the due process concerns.
In any event, bolstered by the 2004 unanimous Security Council Resolution 1546 (fully recognizing the legitimacy of the Iraqi Interim Government) and the recent elections in Iraq, the enormous task of collecting evidence, and preparing the five-judge tribunal for the trials is taking shape (the judges are being assisted by international legal scholars). As stated, while the rules of evidence for the trials have not been released, international experts have been working very hard with the Iraqis to ensure that other due process concerns are satisfied. Of particular importance is equipping the five judges with the legal skills necessary to properly preside over the trials.
What is most ironic in the debate of which forum would be most appropriate and fair to try Saddam, however, is that the deficiencies of the so-called United Nations model are seldom addressed. Even a cursory review shows why an Iraqi model is much preferred.
First, a United Nations model would remove the operations of justice from the community where the crimes occurred. International tribunals do not sit in the countries where the violence occurred, seldom involve the citizens who suffered the crimes, and the rules and formalities used are foreign to the country subject to adjudication. The people who suffered the most are not able to make the fundamental decision about how to bring about criminal accountability.
Second, international tribunals are vastly inefficient. For example, the trial of Slobodan Milosevic, staffed by international personnel chosen by the Security Council and General Assembly, opened on February 12, 2002 and is still ongoing! In fact, the tribunals in The Hague and Arusha have handed down only 44 convictions and 6 acquittals resulting from over 200 indicted individuals. In contrast, budgeted at $60 million over three years, the Iraqi tribunal costs one-fifth as much as its counterparts in Arusha and The Hague, and has a built-in end date of 2006.
Third, international forums gravitate more towards international theatre, allowing the accused criminal a political forum. There is nothing that Saddam Hussein (or lawyers like Ramsey Clark) would like more than to grandstand before the world trying to shift attention away from his heinous crimes by falsely charging the United States for a "war of aggression," etc.
Fourth, international tribunals do not permit plea bargaining, are not designed to handle intelligence debriefings of captured personnel, and do not permit the death penalty, under any circumstances. Certainly, the people of Iraq have the right to demand the death penalty.
On the other hand, consider the strengths of the Iraqi tribunal. It was set up fully cognizant of the need to strike a balance between allowing the Iraqi people the right to prosecute Saddam and the concerns that the trails be fair. It has five units: Tribunal Investigative Judges, Trial Chambers, Appeals Chambers, Prosecutions Department, and an Administrative Department. The Tribunal Investigative Judges conduct the investigations, determine the existence of a prima facie case, and prepare indictments. The evidence contained in these indictments is primarily drawn from seized documents, witness interviews and evidence from forensic teams from at least twelve mass graves. The indictments are transferred to the Trial Chambers, five-judge panels who conduct hearings, pronounce judgments, and impose sentences. Unlike the common-law court system in the United States, the Iraqi tribunal will have no jury, and the verdicts and sentencing will be handed down through a majority decision of the Trial Chamber. The court will hear from victims, witnesses, a state prosecutor, defense witnesses, and in some cases, the defendants themselves. The rights of the accused include a presumption of innocence, right to be informed of the charges against them, to have adequate time to prepare their defense, to cross-examine and call witnesses, not to be forced to testify against themselves and a right to appeal the verdict to a nine-judge appellate chamber.
In short, as the process to try Saddam Hussein and his lieutenants goes through its preliminary stages, the basic framework for the Iraqi tribunal is in accordance with international norms and standards of due process. One can expect that the precise rules of evidence, soon to be released, will follow suit. The people of Iraq have suffered unimaginable terror for over thirty years and deserve a fair and judicious Iraqi court to bring these criminals to justice for their atrocities. Jeffrey Addicott is Associate Professor of Law and Director, Center for Terrorism Law, St. Mary's University School of Law. His latest book is Winning the War on Terror: Legal and Policy Lessons from the Past (2003.