JURIST Guest Columnist Chibli Mallat, visiting professor at Princeton University and a prominent Middle East human rights lawyer who in 2003 turned down an invitation to join the Iraqi Special Tribunal that would judge Saddam Hussein, says that even given the chaos of the Dujail trial it is not too late to save the rule of law for Iraqis by moving the appeal of the verdict against the former Iraqi president outside of Iraq, where justice can both be done and seen to be done...
But this is not the only difficult issue raised by this historic trial, which must not be allowed to fail universal standards for the rule of law. Too much is at stake for the large majority of decent, moderate Iraqis. Only the rule of law can stand against the barbarity inflicted on the country by extremist Islamists, former Baathists and neighboring leaders who do not wish for accountability to prevail in the Middle East under any shape or form. For them, Saddam's trial is just another battleground.
From the very early days, it was clear that the trial should take place outside Iraq. For jurists like me and other more distinguished colleagues who were called upon to sit on the bench in 2003 when Saddam was apprehended, it was unsafe to go and stay in Baghdad. I turned down the offer. The situation has grown far worse since, and only moving the proceedings abroad can save the day.
Ever since it started three years ago in the so-called Iraq Special Court, now renamed the High Criminal Court, the trial has been a failure. A low point was reached in the last few months: first, Abdullah al-Amiri, the president of the court who was appointed at the beginning of the summer, opined that the main accused was not a dictator. The remarks were uttered in open court to the face of one the victims of the Halabja massacres of 1988, when some 5000 Kurds were gassed to death in a matter of minutes in that small Iraqi Northern city. Amiri was forced to quit, but the dismissal of a sitting judge in the middle of a trial is the latest manifestation of a process gone awry. The reason is simple: the Iraqi judiciary is incapable of rising on its own to the historic task it has been assigned. Then, the brother-in-law of Mohammed Oreibi al-Khalifa, the new judge presiding over Saddam Hussein's genocide trial, was killed. This follows half a dozen trail-related assassinations, including those of two lawyers of Saddam Hussein. The last month has seen the thirteenth assassination directly associated with the trial. Rendering justice in Baghdad is an impossible task, and radical redress is needed. Only the transfer of the court abroad, and its transformation into an international or mixed tribunal, can allow justice to be seen to be done.
Difficulties started well before the 2003 invasion, and it is unfortunate that a tribunal was not set up as early as 1991, when the German Foreign Minister at the time, Hans Dietrich Genscher, suggested that Saddam should be held judicially accountable for the invasion of Kuwait. With colleagues from the Iraqi opposition then, I helped in 1996 to establish Indict, an international NGO which sought to bring Saddam Hussein and his aides to trial in a neutral court for their unique record of crimes against humanity. Not enough support was garnered to establish an international tribunal. This is the more unfortunate since the delayed establishment of the Iraqi Court proved to be another instance of victors' justice.
Since then, the court has failed almost every single test of a fair trial under basic standards: the main accused and his acolytes were given deference which choice world criminals should have never been allowed to exercise, a plethora of lawyers postured to the world without judges questioning who was paying for all their fees and expenses. Since Saddam Hussein, his family and supporters were footing the bill, the court did not question where those funds came from, while killings by Baathists remained high, and continue to date to be supported by the main accused in open court. Lack of fairness extended in all directions. The court failed even on substantive choices: instead of focusing on the notorious anti-Kurdish genocide at Anfal, and on the massacre of Shi'is by the dozens of thousands in April 1991, the first case focused on Dujail, an obscure and relatively minor killing occasion in 1983: only (!!) a hundred people had been executed by the regime in response to an assassination attempt that took place in the Middle Euphrates village, at a time when Iraq was in the throes of a war started by Saddam Hussein against Iran, a war that would eventually claim a million casualties.
There is nothing shameful about admitting that the judicial system is incapable of coping with a challenge of the magnitude faced by Iraq's tragic modern history, and in the aftermath of the February 2005 assassination of former Lebanese prime minister Rafik Hariri we have in Lebanon reconciled ourselves to the establishment of a mixed Lebanese and international tribunal to try suspects that will operate outside Lebanon. Like their Iraqi kin in misery, Lebanon's peaceful citizens know that victims and witnesses would not be protected enough in the present tense state of the country, that lawyers for the accused would not be safe enough to offer their clients a professional defense not tainted by ill-acquired money, and that Lebanese judges are not shielded sufficiently, nor are they competent enough in a highly complex and novel field of international law. However traumatic the Lebanese experience since the assassination of Prime Minister Hariri, the case in Iraq is far more tragic.
The trial of Hussein and his aides is too important a test of legal accountability in the Middle East to fail. It must be moved outside Iraq, at the appellate level where it now stands, even that means that the final decision will be delayed a few weeks. I know that a number of prominent colleagues in the Iraqi cabinet share this conviction. All that is required is a request from the Iraqi government to the Security Council.
Chibli Mallat, presidential candidate for Lebanon, is a visiting professor at the Woodrow Wilson School, Princeton University. He has litigated several cases on behalf of victims of internationally-defined crimes in the Middle East.