Published in International Herald Tribune, October 18, 2005
By Richard Dicker
On Wednesday, the first trial of Saddam Hussein will begin here in Baghdad before the Supreme Iraqi Criminal Tribunal. The trial, and those that follow, present Iraqi authorities with an unprecedented opportunity to provide a measure of truth and justice to the victims of the unspeakable human rights crimes that occurred in Iraq.
Success will not be easy. The crimes committed under Saddam's regime - the mass execution of more than 100,000 Kurds in 1988, the killing and forced disappearance of tens of thousands of Shiites in 1991, unspeakable torture on a wide scale - mean that credible trials will be complex and time-consuming. The trials will pose large legal, procedural and practical challenges for the nascent Iraqi judiciary.
Unlike the tribunals for the former Yugoslavia, Rwanda and Sierra Leone, the Supreme Iraqi Criminal Tribunal is a national court. It will be applying a mix of international and domestic criminal law within a recently reconstituted national legal system. Locating such criminal trials within the affected country is one way of making justice accessible to the victims and the society as a whole, but cannot come at the expense of fundamental fair trial rights or the consistent application of international law.
Human Rights Watch has spent years documenting the crimes of Saddam's regime and has repeatedly called for the perpetrators of these atrocities to be brought to justice. On the basis of our field research on the extermination of the Kurds, I spent a year in 1994 trying to persuade governments to bring a case of genocide against the Iraqi state. So we welcome efforts to investigate and prosecute former Iraqi leaders. But the evolution of the Supreme Iraqi Criminal Tribunal over the last two and a half years has given rise to serious concerns about its capacity to conduct fair trials.
There are several significant human rights shortcomings in the Supreme Iraqi Criminal Tribunal law. If these are not addressed, they could undercut internationally guaranteed rights and jeopardize the legitimacy of the proceedings.
For example, the judges will be able to find Saddam guilty if they are "satisfied" by the evidence presented against him. This standard of proof for conviction is insufficient to assure a fair trial. Conviction must be based on a reasoned judgment that establishes each element of the crime beyond reasonable doubt. The reasonable doubt standard is applied by all international criminal tribunals trying crimes against humanity, war crimes and genocide.
It is also troubling that the tribunal will be able to use a defendant's refusal to answer a question from a judge as evidence against him. International law protects a defendant's right not to incriminate himself.
Moreover, current arrangements by the Supreme Iraqi Criminal Tribunal have not sufficiently safeguarded the defendants' right to a lawyer. An accused is entitled under international law to an effective defense, including unrestricted and regular access to legal counsel at all stages of criminal proceedings. We have urged the Supreme Iraqi Criminal Tribunal to ensure that evidence obtained before detainees could effectively and freely exercise their right to be represented by counsel is not admitted against them.
Finally, the Iraqi tribunal may impose the death penalty. From a human rights perspective, the death penalty is cruel and inhumane punishment. None of the international tribunals permit the death penalty. At the Iraqi tribunal the death penalty applies to a wide range of crimes and there is no possibility of clemency.
The overwhelming and unique importance of these trials to the Iraqi people, the people of the Middle East and worldwide, underscores the urgency of these trials being done right. Not only will these trials influence the future of justice and the rule of law in Iraq, but they may also be the only form of justice that the victims of Saddam's regime are likely to get. If justice - rather than vengeance - is to be delivered through the upcoming trials, the Supreme Iraqi Criminal Tribunal must establish its credibility with Iraqis and with the international community by demonstrating its commitment to principles of impartiality, independence and fairness. The stakes are too high to do otherwise.