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Can Saddam Receive a Fair Trial? - 2003-12-17

Since coalition forces have captured former Iraqi leader Saddam Hussein, an international debate has begun about how and when he should face trial for his alleged crimes. Many Iraqis are calling for a quick trial and a conviction on crimes against humanity. But legal experts are cautioning that it is particularly important to make sure he receives a fair trial. Many observers believe that is going to take time.

In downtown Baghdad, a crowd of protesters at a recent demonstration chanted slogans calling for the execution of Saddam Hussein.

Several members of the Iraqi governing council have called for a speedy trial, beginning within weeks. Many ordinary citizens are urging the reinstatement of the death penalty, which was suspended after Saddam fell.

The Iraqi governing council has voted to set up a special tribunal to try members of the old regime for crimes against humanity. The U.S.-led coalition has said it will turn over prisoners for trial, but coalition officials are dodging questions about whether Saddam will be turned over to the Iraqi justice system. The governing council clearly expects that Iraqis will have the chance to try their former leader.

Iraqi Governing Council member Adnan al-Pachachi says the trial will be fair.

Mr. al-Pachachi says he wants to assure everyone that the tribunal will be fair and open to the public. He says defendants will have the right to appoint lawyers and call their own witnesses. It will not, he says, be like the courts run by the old regime, where judgments were handed down within minutes.

But that is exactly the kind of justice Iraqis are used to. There are many calls on the street are for a quick trial and execution, especially among members of the Shi'ite Muslim majority, who were particularly oppressed under Saddam's rule.

International legal experts are questioning whether the fallen dictator can really get a fair trial in the country he ruled with such brutality.

Professor Nabil Saleem of the Center for International Studies at Baghdad University says many Iraqis who suffered under the old regime have, in their hearts and minds, already convicted Saddam of crimes against humanity.

"The people in the society are divided now as to how to deal with Saddam Hussein and his policies. Many of them are very angry about his policies," he said. "They are looking just to revenge from him. And this is coming to make the trial not fair, or not justice as we are looking for."

But Mr. Saleem says most Iraqis want Saddam to have a fair trial, for their own sakes, more so than his.

"I think many people of Iraq are looking for such a trial. Not because of him, not because they are loving him, but they want the whole world looking at them as humanitarian people, as a human being, and as trying to build a new society, a new state based on justice," he said.

In addition, Mr. Saleem says many Iraqis want to hear what Saddam Hussein has to say about his three decades in power - especially his disastrous foreign wars and his repressive domestic policies.

Retired South African constitutional court justice Richard Goldstone was the first chief prosecutor at the war crimes tribunals for the former Yugoslavia and Rwanda. His experience with international criminal tribunals leads him to believe that it could be months, if not years, before anybody is ready to put Saddam Hussein on trial.

"Well, it is not possible to have a fair trial and to rush it, those are two inconsistent demands," he said. "The people who want to rush it are making a political judgment and not a professional, judicial or juridical judgment. There is only one way to have a fair trial, and that is to do it in a proper way, and that takes time. It is the official and meticulous collection of evidence that destroys the myths and the false denials, which are so important to get rid of if there is any hope of an enduring peace and reconciliation."

The governing council's plan is to have a tribunal consisting entirely of Iraqi judges and lawyers, a plan supported by the U.S.-led coalition authority.

This is consistent with the Bush administration's aversion to international criminal tribunals such as the U.N.-sponsored one in the Hague, where Justice Goldstone served, or the International Criminal Court of Justice now being formed.

But Mr. Goldstone is among the large number of legal experts who believe the Iraqi tribunal should use a mixture of international and Iraqi judges and lawyers, similar to the courts set up for Sierra Leone and Cambodia.

"The aim, the sole aim has to be to set up a credible, fair and independent court or tribunal," he said. "Having said that, I do not believe that Iraq has the judges, the prosecutors, the investigators after 35 years of repression under the Saddam Hussein regime, to supply that."

There is another argument for international participation in the trial. Iran and Kuwait would like to prosecute Saddam for crimes against their peoples during Iraq's wars with those countries. Mr. Goldstone says having some non-Iraqi judges and lawyers in the court is crucial to its perceived legitimacy.

"Because the tribunal has not only to be fair and independent, but it has to be perceived by the victims and I think it's important that the international community, and more particularly the Islamic world, should see this to be an independent tribunal," he said.

The Iraqi professor of international relations, Mr. Saleem, says he is confident the Iraqi justice system will eventually be able to handle a trial of this magnitude, but not immediately.

"Well I think there is nothing wrong with our system, our justice system," he said. "But we may need for some arrangements for such trial, and that will take some time."

Aside from getting the Iraqi justice system ready to handle a trial of Saddam Hussein, experts point out that the security situation in the country must be brought under control. They say it would not be possible to have such a trial with insurgent groups able to detonate high-powered explosives in the center of the capital.