Global Policy Forum

By Ari Berman *

Everyone agrees that Saddam Hussein and his henchmen, if tried properly, should be found guilty of crimes against humanity. But a long list of human rights groups and international law experts doubt if the tyrant and his deputies will receive the due process and fair trials promised by U.S. and Iraqi authorities. Legal observers are "concerned about the decision to use the death penalty, unclear rules of evidence and what they see as the accused's inadequate access to their lawyers," the Los Angeles Times wrote on Sunday. "They also see an overall lack of transparency in the proceedings and question whether the Iraqi judges have the expertise to handle such far-reaching cases." Last week insurgents assassinated a judge and lawyer for the special tribunal a day after the first charges were announced.

The first defendants will be five of Saddam's lieutenants, most notably his half-brother Barzan and Vice President Taha Yassin Ramadan, both implicated in a series of mass killings in 1982. Future defendants include Saddam's notorious cousin, Ali Hassan Majid, aka Chemical Ali, and the former defense minister. The tribunal will use these cases to build a paper trail against the leader himself, who likely won't be tried until next year.

Unlike the four international war crimes tribunals currently run by the UN in the former Yugoslavia, Kosovo, Sierra Leone and Rwanda, Saddam's trial will be administered by Iraqis and supervised by America. Paul Bremer created the Iraqi Special Tribunal in December 2003, naming Salem Chalabi, Ahmad's nephew, as special prosecutor. Interim Prime Minister Iyad Allawi eventually pushed Chalabi aside by stacking the court with hand-picked loyalists. The names of the tribunal's 35 judges and 400 staff members have been shielded for security reasons, only increasing skepticism.

Then there's the question of U.S. complicity. The American government supplied Saddam with landmines for his war against Iran, and American companies, with the government's approval, sold the chemical agents used against Iranian troops and Iraq's own Kurdish population. A trial under American occupation likely won't force Donald Rumsfeld to describe his meetings with Saddam in 1983 and 1984, after the U.S. knew he was deploying chemical weapons. Or ask George Bush I why he issued a national security directive in October 1989 calling for normal diplomatic relations between the U.S. and Iraq. Or why Colin Powell and Dick Cheney encouraged the Kurds in the North and Shiites in the South to revolt, and then did nothing when Saddam brutally suppressed the uprisings, leading to thousands of mass graves.

"We want Saddam to talk," Alan Zangaga of the U.S.-based Kurdish Human Rights Watch told Inter Press Service. "We want to know from Saddam which weapons he used and where he got them. ... We need this information established in a court of law." Once public, the Kurds and other groups targeted by Saddam could sue American companies for damages, similar to how Holocaust survivors targeted Swiss banks.

Since the war, America has adopted a go-it-alone mentality especially evident in the creation of the new tribunal. After failing to protect mass grave sites and government ministries housing crucial evidence in the wake of the invasion, coalition authorities rebuffed human rights groups when they offered assistance to the tribunal. Kofi Annan, angered by the tribunal's use of the death penalty and America's skirting of international law, forbade The Hague from helping to train Iraqi lawyers and judges. The State and Justice Departments are now assuming this formidable task.

"Where in the world can you say this is an independent judiciary, with U.S. proxies appointing and controlling judges, with US-gift-wrapped cases?" asks Cherif Bassiouni, former chairman of the UN war crimes investigation in Yugoslavia. "In the Arab world, there is already the perception this is a mockery." America's cavalier overreach could also taint the tribunal's legitimacy where it matters most. "This tribunal is not ours," Zuhair Almaliky, the chief investigative judge of Iraq's central criminal court, told The New York Times last summer. "It is somebody who came from abroad who created a court for themselves." Along with its revisionist rationale for the war, the Bush administration hopes that Saddam's trial will overshadow the chaos sowed by invasion and occupation. For the sake of Iraqis, justice should matter more than PR.

About the Author: Ari Berman writes The Nation's "Daily Outrage" weblog. He is a Ralph Shikes Fellow at the Public Concern Foundation.