Leila N. Sadat, expert on international law and international war crimes tribunals and professor of law at Washington University in St. Louis, is closely following the Saddam Hussein trial. Sadat is the author of the leading treatise on the international criminal court, “The International Criminal Court and the Transformation of International Law: Justice for the New Millennium,” as well as a co-author of a casebook on international criminal law. Her current comments on the trial follow:
“In arguing that the Saddam Hussein trial is a ‘Trial of the Century,’ some experts appear to be suggesting that media interest is tantamount to success, importance and legitimacy. This is a mistake,” Sadat says.
“Criminal trials, whether of important and notorious individuals, or of small-time offenders accused of petty crimes, are nothing more than show trials, unless three criteria are met: The judges must be independent, well-qualified and impartial; the accused must be properly and effectively represented; and the proceedings must be fair. Using these criteria, it is difficult not to be skeptical about the fairness, and therefore the ultimate significance, of the trial of Saddam Hussein.”
The judges of the Iraqi Special Tribunal (IST- now known as the Higher Criminal Court) were originally chosen under U.S. occupation, and several media reports suggest that they are all of Kurdish or Shiite ethnicity. Moreover, there have been attempts to ‘purge’ the court of former Baath party members including, most recently, Judge Juhi, the Tribunal’s chief investigative judge.
“This in and of itself does not automatically indicate that the judges are not ‘independent, well-qualified and impartial,’ but it suggests that it is perhaps very soon for a country that has been without an independent judiciary for many years to quickly reinvent itself,” Sadat says.
“It is difficult to imagine how a few weeks training in London under the tutelage of a handful of U.S. lawyers can overcome 35 years of living under the regime of Saddam Hussein. Recall that the French courts that tried and heard appeals from Klaus Barbie, and the Israeli Courts that tried and heard appeals from Adolf Eichmann were not established for the sole purpose of doing so. Instead, they were for the most part ordinary civil courts staffed by professional judges who were tasked to participate in extraordinary events.”
Sadat notes that the judges of the IST, in contrast, are newly-minted, sit on an extraordinary court created by a foreign occupying power that is still waging a military campaign within the country, and are themselves subject to threats of violence.
“Without opining as to whether they are qualified or not (and one can only wish them good luck in their endeavors), it is undeniable that they face challenges that would try the most seasoned, phlegmatic and experienced of jurists,” she says.
“At the same time, the qualifications of the judges are probably the least problematic aspect of the proceedings before the IST, which are significantly more deficient on the question of representation of the accused and fairness of the proceedings.”
Although the right to counsel is granted by IST rules of procedure, counsel is not mandated to be present at many stages of the proceedings, meaning that Saddam and other accused have been interrogated without defense counsel present. Indeed, Iraqi President Jalal Talabani recently stated on Iraqi State television that a judge had been “able to extract confessions” from Saddam Hussein.
“Although it is unclear at what point defense counsel was given the file, there is no doubt that there is an extraordinary imbalance between the resources of prosecution and defense counsel,” Sadat says.
“The Prosecution is being staffed by U.S. lawyers working behind the scenes, and funded by the United States, to the tune of U.S. $128 million. Many of the Tribunal’s rules also appear to have been shaped to suit U.S. rather than Iraqi interests, particularly the absence of IST jurisdiction over non-Iraqi defendants. Many defense lawyers have argued that they are not safe in Iraq because they do not (unlike the Prosecution team) receive U.S. military protection. Saddam’s lead Iraqi attorney, Khalil al-Dulaimi has stated that he has not been able to speak privately with his client without severe American monitoring, and that he has not been given sufficient time to prepare for the trial. There also appears to be no requirement that guilt be proved beyond a reasonable doubt. ”
According to Sadat, the creation of ad hoc courts with special jurisdiction is inevitably fraught with peril and is never the best option.
“The accusation of ‘victor’s justice’ is ever-present, which is one of the reasons why the world has now established a permanent international criminal court, rather than resorting to ad hoc adjudication in each case,” she says.
“Sometimes ad hoc or extraordinary courts are a necessary evil, but because their legitimacy is inherently fragile, it is particularly important that the process by which an accused is tried before them is beyond reproach.
“What made the Nuremberg trials so significant wasn’t just the importance of the accused and the extraordinary nature of the atrocities, but the fairness of the proceedings. When Admiral Karl Dönitz was accused of waging unrestricted submarine warfare, his lawyer was permitted to introduce an affidavit from U.S. Admiral Chester Nimitz to the effect that the U.S. was doing the same thing in the Pacific. As Justice Robert Jackson stated in his opening address to the International Military Tribunal at Nuremberg, ‘[w]e must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.’ For the IST’s legacy to be enduring, its personnel must do the same.”