Originally created 12/16/03

Trial of Saddam Hussein could have unpredictable impact



"When you judge," Saddam Hussein once said, "judge with justice."

The trial of Iraq's ex-dictator could be the first great courtroom drama of the new century, throwing light on some of the blackest deeds of the past. But Saddam in the dock could also prove a larger-than-life focus for a political storm over postwar justice and the American role in Iraq.

The U.S.-led coalition hopes his capture in itself will demoralize Iraqi resistance forces loyal to his Baathist cause. But with the Baathist stigma gone, it could also spur other, anti-Saddam Iraqis to take up arms against the occupation.

In the same way, a Saddam trial could prove a national cleansing, a turning point toward a new Iraq of law and respect for human rights, and a warning to other authoritarians in the region. If mishandled, the prosecution of Saddam could turn him into an unlikely martyr.

"The trial of Saddam Hussein is enormously important. What's at stake is hard to exaggerate," said Richard Dicker of the New York-based Human Rights Watch.

Whether there would even be such a trial wasn't immediately determined, the U.S. military command said in Baghdad after the capture late Saturday. Iraq and the world fully expect one, however.

"It is vital for the Iraqi people to see justice done," said Ahmad Chalabi, a member of the Iraqi Governing Council. "The people of Iraq have been waiting for this moment," said Middle East legal expert Hanny Megally. British Prime Minister Tony Blair and other world leaders spoke of a trial as inevitable.

At least 300,000 people - perhaps hundreds of thousands more - are believed to have been killed and dumped in mass graves by the Baathist regime over its 35 years, particularly under Saddam during the 1980s and 1990s.

They were killed in mass executions of Iraqi Kurds in the 1980s, in the suppression of Kurdish and Shiite Arab uprisings in 1991, in countless summary executions of other political opponents. Baathists tortured, mutilated, raped and stole from countless other Iraqis.

But while the crimes are notorious, prosecuting Saddam - said to be "unrepentant and defiant" after capture - could still be a "complicated, extraordinarily difficult political trial," Dicker said. Historians note that even bringing Adolf Hitler to justice would have been complex, because, for example, there was no record of his ordering Jews exterminated. His 1945 suicide made that moot.

The legal framework for a Saddam trial is already in place.

Just last Wednesday, the Iraqi Governing Council, the interim, U.S.-appointed government, established a special tribunal for prosecuting top members of the old regime for genocide, war crimes and crimes against humanity. Thirty-nine of the 55 "most wanted" are in custody.

The tribunal, whose work may not begin for months, will consist of five Iraqi judges. Trials will be open to the public, and the accused will have a right to defense lawyers and a right to appeal. The old Iraqi penal code will be the underlying law.

The council drafted the tribunal law in close consultation with U.S. occupation authorities, and it was approved by the U.S. Defense and State departments. For months, military and other U.S. specialists have been analyzing mountains of documents from the old regime, to link crimes to those responsible.

That heavy American involvement is a potential problem, say experts in international humanitarian law.

"The risk is that - even if that's not the intention - this will seem to be a process controlled by the United States," said Megally, of New York's International Center for Transitional Justice.

"If this trial is to have genuine international credibility and legitimacy," said Dicker, "it cannot be seen as a trial produced by the occupying force."

Even well-intentioned Iraqi judges and prosecutors, after decades of summary trials under a dictatorship, don't have the background to conduct full, fair trials in the current circumstances, and should be heavily reinforced by international jurists, they said.

"Crimes against humanity, war crimes, maybe genocide - those are huge charges which will require a lot of work to convict Saddam on," Megally said.

Dicker said the underlying penal code also has serious human rights shortcomings, including tacit license to coerce confessions by torture.

With inadequate preparation and presentation, "the process could become a political show trial, not justice but vengeance," he said.

American officials contend, on the other hand, that delivery of justice in Iraq belongs in the hands of Iraqis, not an international tribunal, and that such tribunals for war crimes in the former Yugoslavia and genocide in Rwanda have been too slow and expensive.

If Saddam is someday brought to the wooden defendant's pen already prepared for the Baghdad tribunal, the day-to-day proceedings will galvanize world attention.

Prosecutors likely will recruit former Saddam lieutenants to testify against him. If they're given immunity or favors in exchange, the tribunal risks outraging the victims of their crimes.

Saddam or his lawyers, meanwhile, might divulge information incriminating Iraqis who have escaped detention or scrutiny thus far, or even Arab allies in the 1980-88 war against Iran, when Iraqi chemical weapons killed thousands of Kurds and Iranians.

A trial might elicit information, too, about Washington's ties to Saddam's government in the 1980s, when U.S. intelligence aided the war against Iran, and about U.S. or other foreign sources for Iraq's unconventional weapons programs during that period. And it might lead investigators to billions of dollars in reputed Baathist money caches.

The 66-year-old ex-dictator's pronouncement on judging others, and many other matters, came in millions of "Great Lessons" booklets distributed during his rule.

"Let mercy be the crown of justice," Saddam counseled on page 5. That wasn't the mood in Baghdad, however, where his portraits once dominated every street but where on Sunday people celebrated news of his capture, Muslim cleric Azhad al-Faili thanking God "for ridding the world of the tyrant."