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Legal Experts Discuss Structure of Tribunal to Try Saddam Hussein - 2004-02-14

The capture of Saddam Hussein in December prompted a worldwide debate as to how to try him and other top Ba'ath Party leaders who operated as his lieutenants. Shortly after his capture, the Iraqi Governing Council created a tribunal which was designed to try the ousted dictator and key members of his regime, for crimes against humanity, war crimes, and genocide. Several international legal experts gathered Friday in Washington at the American Bar Association to discuss the establishment of the Iraqi Special Tribunal and challenges ahead.

Justice Richard Goldstone is a leading figure in the field of human rights law. Drawing lessons from history as well as his own experience in his native South Africa, and as chief prosecutor of the United Nations International Criminal Court for Rwanda and the former Yugoslavia, he addressed some of the issues facing the new court in Iraq.

Justice Goldstone said history has proven that ignoring past human rights violations is a recipe for disaster. Failing to address atrocities committed by rulers like Saddam Hussein damages the country and its people.

"Many victims cannot begin the healing process without some form of official acknowledgement of their victimization," he said.

Justice Goldstone pointed to the Nuremberg trials as the first historic model created to deal with war criminals. At Nuremberg, the United States, Britain, France and Russia prosecuted key Nazi leaders who were responsible for the systematic murder of millions of people in World War II.

The lessons from recent human rights tribunals in Rwanda, South Africa and the former Yugoslavia, said the judge, will pertain to Iraq. He added that the crimes of Saddam Hussein and his supporters must be brought to light.

"His crimes were massive, leaving hundreds of thousands of victims in Iraq and in Iran, especially among the Shiites who dared to oppose him, and the Kurds against whom he committed a horrible genocide," said Justice Goldstone. "And as with all these other places, the victims of Saddam Hussein cry out for justice and for official acknowledgement, an acknowledgement that is crucially important."

But Justice Goldstone said that a trial for the former dictator in Iraq should not begin until democracy is established in the country. He warned that no democratic infrastructure is yet firmly in place in the country, and there have not been any independent judges in Iraq since Saddam Hussein took power in 1968.

Joining Justice Goldstone at the American Bar Association event in Washington was Bruce McKay, who served as a counselor to the prosecutor at the Special Court for Sierra Leone. That body addressed the atrocities committed in the civil war in that West African country. Also participating was Judge Patricia Wald, who was a judge on the International Criminal Tribunal for the former Yugoslavia. Both experts spoke about their own experiences on international tribunals, and compared those experiences to what they anticipated in Iraq. Each stressed that security would be a serious challenge in Iraq, not only in getting witnesses to testify, but also for protecting judges, and lawyers with the tribunal. In addition, said Judge Wald, tribunals are very costly to run.

"The key problem in many, many of [the trials] is just plain lack of resources," said Patricia Wald. "Whoever sets them up in the beginning sets them up and then either loses interest. Or the people who promised to pay don't come through and they don't pay. Then people feel they need to cut corners or move quicker just to get through. Then you begin to see deterioration of higher standards or of procedural fairness."

Judge Wald and Mr. McKay agreed with Justice Goldstone that the trial of Saddam Hussein must be judged to be fair by the region as well as the global community. They said international participation in the Iraqi tribunal would provide maximum transparency, satisfy the U.S. public, coalition partners, the Iraqi public, and the Muslim world.

As created, the Iraqi court would be run solely by Iraqi judges, and rely on Iraqi laws for sentencing.

But Mr. McKay acknowledged that the challenges in Iraq are daunting.

"The process of getting this court up and functioning will be horrific," said Bruce McKay. "You need an infrastructure, there is none. You need supplies. There are none. You need data processing support. There are a thousand and one things you will need and they do not exist and there is no one who can put them into place as of yet. Once that process begins, the ideals on which these tribunals are founded can be put into practice, that all are innocent until proven guilty, that all are entitled to a full and fair hearing of their case in court, before an impartial judge. Until that happens those dreams will be exactly that dreams."

At this time it is not precisely known who will be tried first by the tribunal. Iraqi Governing Council members have said that the first to be indicted would be Saddam Hussein and the former regime members who appeared on the U.S. military's list of 55 most wanted Iraqis, many of whom are in U.S. custody. The Tribunal will prosecute crimes committed between July 1968, when Saddam Hussein and his Ba'athist regime took power in Iraq, and May 1, 2003, when President George Bush declared an end to the major combat operations.