Accessibility links

Analysis: Trials of Hussein, Milosevic Very Different

The trial of former Iraqi president Saddam Hussein is scheduled to resume in Baghdad later this month. In this report from Washington, VOA Senior Correspondent André de Nesnera compares the Saddam Hussein trial to the one held in The Hague of former Yugoslav President Slobodan Milosevic.

On October 19, former Iraqi president Saddam Hussein appeared in a Baghdad court. He, along with seven others, was charged with crimes against humanity, the torture and killing of more than 140 men and boys after a 1982 assassination attempt against him in the town of Dujail. The former Iraqi leader pleaded not guilty. After a three-hour session, the trial was adjourned until November 28, to give lawyers more time to work on Saddam Hussein's defense. The former Iraqi leader also faces future charges of genocide and war crimes once the Dujail case is over.

Linda Malone, international law expert at the College of William and Mary says the United States helped create the special tribunal trying Saddam Hussein.

"The tribunal was originally set up under the authority of the coalition forces, the Coalition Provisional Authority," she noted. "But since that time, there have been a number of subsequent ratifications of the court by the Iraqi Assembly and the presidential council, most recently on October 9. So as things now stand, what is now called the Iraqi Higher Criminal Court has been ratified by the Iraqi interim legislature and the provisional presidential authority."

During the opening session, Saddam Hussein and his lawyers quickly challenged the authority of the special tribunal.

Laurel Miller, international war crimes expert with the U.S. Institute of Peace, says another high-profile defendant has also used that tactic.

"We've seen this in the Slobodan Milosevic trial that is going on in The Hague," she explained. "He has tried throughout that process to attack the credibility of the court that is trying him and to challenge its legitimacy. And I think we'll see that continue to happen in the Saddam Hussein case, but I would not expect that theme of the defense to succeed in any way."

Comparisons between the two trials are inevitable. These are two former national leaders charged with the same crimes: genocide, crimes against humanity and war crimes. But experts say the similarities end there.

One difference is that Slobodan Milosevic is defending himself, while Saddam Hussein has a team of international lawyers representing him.

Another difference is that Slobodan Milosevic is being tried by the International Criminal Tribunal for the former Yugoslavia, established by a resolution of the U.N. Security Council. It is run by international judges and prosecutors and applies international law.

On the other hand, Saddam Hussein is being tried in the country where he is accused of committing major crimes and the judges trying him are Iraqis.

Michael Scharf, a leading U.S. expert on international criminal law at Case School of Law says many people wanted to see Saddam Hussein tried by an international court. But Mr. Scharf says Iraqi officials wanted this to be an Iraqi trial, so they created what he calls "an internationalized, domestic tribunal."

"It's a domestic trial because it has Iraqi judges, Iraqi prosecutors and it is taking place in Baghdad," he noted. "But it's internationalized, because it is using the Yugoslavia and Rwanda tribunals' statutes that define the crimes and the defenses and the rules of procedure. And the judges and prosecutors have had training by international non-governmental organizations, and a consortium of academic institutions is helping to provide assistance to the judges. So it's a new fangled, hybrid court."

Experts say another difference between the two trials is that international tribunals do not have the death penalty as a punishment. So if convicted, the most Slobodan Milosevic can receive is life in prison, but Saddam Hussein could face the death penalty.

Derek Gilman is an attorney who helped Iraqis draft the statutes of what was to become the special tribunal trying Saddam Hussein.

"They made it very clear that they wanted the death penalty to apply," he said. "During the tenure of the Coalition Provisional Authority, the death penalty was suspended and the statute provides that the penalties that would apply to the convicted defendants would be those penalties that would apply under Iraqi law. So during the tenure of the Coalition Provisional Authority, the death penalty did not apply. However, once authority transferred to the interim Iraqi government, the Iraqi National Assembly reinstituted the death penalty - and so now, that is the maximum penalty that would apply. That's just something the Iraqis felt very, very strongly about."

Experts say a concern voiced by Iraqi officials is the length of the Milosevic trial, it has been going on for almost four years now.

Laurel Miller from the U.S. Institute of Peace says there may be pressures in Iraq to conduct Saddam Hussein's trial quickly and not let it drag on as long as the Milosevic case has.

"There are plusses and minuses to that," said Mr. Miller. "On the one hand, people have seen it as problematic that the Milosevic case has dragged on so long, because it gives the appearance that justice is being delayed, not being done. But on the other hand, at the end of the day, in the Milosevic trial, it really will be impossible for anyone to make a credible argument that the process has been unfair. So there can be a trade-off, sometimes, between the speed of the process and the fairness, or at least the appearance of fairness of the process."

Analysts say it is essential for Saddam Hussein to get a fair trial. But they also agree that will be a difficult task given the highly charged political situation in Iraq and the presence of a defendant who arouses so much passion among the population.