WASHINGTON - With former Iraqi President Saddam Hussein now in U.S. custody, international human rights groups are pressing for assurances that he receive a trial that is perceived by Iraqis and the international community as independent and fair.
"It's really critical that it's done right," according to the executive director of New York-based Lawyers Committee for Human Rights (LCHR), Michael Posner. "For those who believe in international justice and accountability for human rights crimes, the trial of Saddam Hussein is a rare opportunity to test the system and make it work."
Like other rights activists, he said it was very important that any tribunal include international representation, a recommendation about which both the U.S. and the Iraqi Governing Council (IGC) have been very unclear to date.
HRW warned against what it called a "political show trial" of Hussein. "Saddam Hussein's capture is a welcome development and it's important that the Iraqi people feel ownership of his trial," said HRW director Kenneth Roth. "But it's equally important that the trial not be perceived as vengeful justice."
Early indications suggest that the administration of President George W. Bush and the IGC are themselves not entirely agreed on how to treat Hussein, who was captured Saturday afternoon by hundreds of U.S. troops at an underground hiding place in a farm compound near Tikrit.
The bedraggled former Iraqi dictator reportedly offered no resistance and, after a medical examination--part of which was video-taped and later broadcast by the U.S. military--was pronounced in good health. Military commanders said he had been taken to an undisclosed location which members of the Iraqi Governing Council (IGC), who were taken to see Hussein Sunday, said was within Iraq's borders.
One IGC member, Dara Nuredin, reportedly said Hussein will be the first to be tried under a new law establishing an Iraqi war crimes tribunal that was released publicly only last week. Indeed, at a press conference Sunday evening, IGC members stressed that a public trial was considered by them to be essential.
But U.S. officials said they had not decided what would be the ultimate disposition of their new prisoner other than interrogating him on the whereabouts of other fugitive government and Iraqi military officials and on the fate of weapons of mass destruction (WMD), which U.S. forces have been unable to find since last March's invasion.
Bush vowed in a brief televised statement Sunday afternoon that Hussein "will face the justice he denied to millions," but did not address the issue further. Asked about what he meant, White House spokesman reportedly assured one news agency that "Iraqis will be involved in that decision."
Rights groups have long considered Hussein to be one of the world's worst abusers dating back to his Ba'athist Party's seizure of power in Baghdad in 1968. While Hussein did not assume the presidency until 1979, he acted effectively as the head of intelligence in a regime notorious for its brutality and repression.
Human Rights Watch (HRW), which received some 18 metric tons of internal intelligence and military documents about Baghdad's repression of the Kurds from local activists after the U.S., Britain, and France declared the northern third of the country a "no-flight" zone off-limits to Iraqi military forces after the Gulf War, said Sunday that Hussein could be prosecuted for any number of crimes against humanity.
They listed Iraq's "genocidal" 1988 Anfal campaign against the Kurds, which killed some 100,000 people, including several thousands from chemical weapons. Chemical weaepons were also deployed against Iranian troops.
They also cited the large-scale killing of civilians after Hussein put down uprisings by Kurds in the north and Shiites in the South in the immediate wake of the 1991 Gulf War, and the destruction and repression of the so-called "Marsh Arabs" in south-central iraq.
They also noted that Hussein's "Arabization" campaign, in which tens of thousands of mostly Kurdish people were forcibly expelled from their homes, also constituted a crime against humanity.
In the past, HRW has led an effort to persuade other governments to bring a case against Iraq for genocide against the Kurds before the World Court in The Hague.
But in its statement Wednesday, HRW warned against what it called a "political show trial" of Hussein. "Saddam Hussein's capture is a welcome development and it's important that the Iraqi people feel ownership of his trial," said HRW director Kenneth Roth. "But it's equally important that the trial not be perceived as vengeful justice."
Like LCHR's Posner, Roth also stressed the importance of involving international jurists as a means of ensuring that the proceedings not amount to a show trial.
Like LCHR, HRW, as well as Amnesty International, has criticized the IGC's new law. While the law is generally consistent with international standards, it lacks key provisions to ensure a fair trial.
The law, for example, does not ensure that guilt must be proven beyond a reasonable doubt; nor does it address how witnesses and victims will be protected.
Most important, it does not require that judges and prosecutors have experience working on complex criminal cases and cases involving serious human rights crimes; nor does the law permit the appointment of non-Iraqi prosecutors or investigative judges with appropriate expertise.
"Iraq has no experience with trials lasting more than a few days," Roth said. "International expertise in prosecuting genocide, war crimes, and crimes against humanity cases must be utilized to ensure a fair and effective trial."
HRW and Amnesty also noted that the IGC had not involved or consulted any independent Iraqi groups in preparing the law before its was decreed.
"We have been urging that the proposals to establish the tribunal be subject to widespread consultation within Iraqi civil society, especially the legal profession and human rights groups, as well as the international community," Amnesty said last week. "Unfortunately, the draft statute of the tribunal was not made public before its adoption."
After last-minute changes before the law was released, one provision allows for the possibility of appointing non-Iraqi trial and appeals chamber judges with experience in such cases, but only if the IGC deemed it necessary.
HRW had recommended that a Group of Experts that would include Iraqi and international specialists be convened to discuss relevant procedures before the law, which covers crimes from the Ba'ath takeover in 1968 until Hussein's ouster last April, was adopted.
But the Bush administration, which has strongly opposed the International Criminal Court (ICC), the world body established earlier this year to try war crimes and crimes against humanity, has shown an almost reflexive hostility to virtually any UN role in preparing the law or in any war-crimes tribunal established for Iraq.
As a result, according to Posner, "the most likely outcome that's within the realm of the possible is some hybrid court (that would include international and Iraqi judges and prosecutors), as in the war crimes tribunal in Sierra Leone. "Anything that pushes it toward the UN is not going to get the enthusiastic backing of the U.S.," he said, unless Washington knows of and approves in advance the key international jurists who would be selected.
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