Hussein's trial follows path taken by others

October 19, 2005|By MICHAEL HILL | MICHAEL HILL,SUN REPORTER

As the trial of Saddam Hussein was set to open today, Iraq joins the long list of nations - from Germany to South Africa, Yugoslavia to Cambodia - that have tried to deal with a violent and oppressive past to help carve out a more peaceful future based on the rule of law.

The experience of these countries has shown that it is a difficult task that could either rally Iraqi society around its nascent democracy or deepen the divisions that threaten to pull the country apart.

To succeed, experts on international law say, Hussein's trial must be viewed as efficient from within Iraq, and as scrupulously fair from without.

"I think my biggest fear is that rather than focusing the world's attention on the horrendous crimes of Saddam Hussein, that the focus would be on the potential unfairness of the trial," said Kenneth Roth, executive director of Human Rights Watch, based in New York. "It is essential to avoid giving Saddam Hussein, of all people, the moral high ground as victim of an unfair trial."

Today's opening session was expected to be primarily procedural. In the United States, most of those hearings could have been handled with pretrial motions. That was not the case in Baghdad in part because this special Iraqi tribunal wanted to let Iraqi citizens see that the trial was under way, even if it quickly adjourns for several weeks, even months.

"The legitimacy of the new Iraqi government rests to a very large extent on the fact that it is not Saddam Hussein's government," said Mortimer Sellers, an expert on international law at the University of Baltimore School of Law. And Hussein's trial was intended as a demonstration of that.

"Externally, it is very important that the trial be conducted carefully according to very high standards of legal procedure," Sellers said. "The greatest threat to the success of the trial will probably be criticism it may receive from people in Europe and the United States if it is not done very, very carefully."

This trial will not look like what Americans are used to in a courtroom. The judges, not the lawyers, will take the lead, asking most of the questions. Without the schedule of a jury to worry about, there will be frequent, lengthy adjournments.

The charges look at only one small aspect of the lengthy list of atrocities committed during Hussein's rule: the execution of 140 men and boys in the Shiite town of Dujail after an attempt to assassinate Hussein there in 1982.

Observers say this is because the evidence against Hussein for what is thought to be well over 100,000 deaths during his reign is so complex that it would take years to get ready for trial. This small piece could be broken off, putting Hussein in the dock relatively quickly.

It's not certain that his other actions will ever be subject to an open hearing. Roth noted that the one of the articles of the Supreme Iraqi Criminal Tribunal, which was set up in the early days of the U.S.-led Coalition Provisional Authority, calls for any death penalties to be carried out within 30 days of sentencing.

If found responsible for the executions in Dujail, Hussein could be executed without any of his other offenses ever getting to trial, depriving, as Human Rights Watch states in a report, "the Iraqi people as a whole of the opportunity to conclusively establish which individuals were legally responsible for some of the worst human rights violations in Iraq's history."

Ruth Wedgwood, an international law expert at the Johns Hopkins University's School of Advanced International Study, said that whatever the details of the crimes, putting Hussein in front of a judge facing charges was an important step.

"I hope that seeing the former tyrant on trial will remind people how bad his regime was and will give at least many Iraqis something to unify around," she said. "It should again remind people how tendentious and violent the Baathist regime was."

The experience of various nations trying to deal with such issues provides both cautionary and hopeful tales, beginning with the war crimes trials of Nazis at Nuremberg after World War II.

Though scholars debate the legality of those proceedings to this day, those Nuremberg trials are credited with letting the world conclude that justice had been done and Germany know that Nazism was truly finished and would not be part of its postwar identity. Bringing Hussein to justice can serve a similar function for Iraq: "I really do think that for many Iraqis, until he is convicted and, at a minimum, put in jail for the rest of his natural life, no one will suppose he is really done for," Wedgwood said.

In South Africa, where the government that imposed apartheid was never defeated, the country's Truth and Reconciliation Commission was a compromise, allowing those guilty of crimes to confess and receive amnesty, while holding out the possibility of prosecution for those who didn't come forward.

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