In contrast to the work of the international tribunals in Rwanda and the former Yugoslavia, the "national" trial of Saddam Hussein looks to be a legal travesty, writes Zaid Al-Ali Of all the developments that have taken place in Iraq since 2003, few have been stranger than the ongoing preparations for the trial of Saddam Hussein. The process presented a unique opportunity to Iraq's new rulers and the occupation authorities to prove that the new Iraq was governed by the rule of law as opposed to the injustice and barbarity of the Saddam years. Instead, the process has thus far been characterised by mismanagement and political interference and it suffers from contradictions that are so severe that many Iraqis have lost confidence in the process altogether. From the time that Saddam was captured in December 2003, the public face of the special tribunal that was created to try him was Salem Chalabi, the nephew of Ahmed Chalabi -- one of Iraq's leading politicians who at the time was firmly associated with the occupation authorities. Although one of the most standard features of any judicial procedure is that it is supposed to be separate and independent of political and governmental influence, the relationship between Salem Chalabi and the political face of the occupation did not seem to bother anyone. In fact, despite the importance of his mission, Salem Chalabi continued to act publicly on behalf of his uncle's political party, the Iraqi National Congress and even represented the INC in negotiations relating the transitional administrative law (TAL). This conflict of interest was compounded by the fact that the TAL contained provisions concerning the legal basis of the very tribunal he was supposed to be running. To make matters even worse in the eyes of most Iraqis, shortly after the invasion of Iraq ended in 2003, Salem Chalabi established a private law practice in Baghdad, which a number of press reports have associated with Israeli interests, including supporters of the settler movement. Salem Chalabi's prior experience as a corporate lawyer specialising in capital markets was often cited as the factor that qualified him for his role. However, anyone with any connection to corporate law knows that most lawyers specialising in capital markets have never actually been to court. Salem clearly suffers from this lack of experience as was demonstrated by the spectacle that was presented before the world on 1 July, 2004, when Saddam was arraigned in court. The young judge who presided over the proceedings had difficulty controlling the subject of his attention, and spent most of the time perspiring. Saddam was made to appear in chains and without legal representation. The judge told him that he was required to sign the list of charges being brought against him, but when he refused, the requirement was simply forgotten about. And then, when Saddam decided to use the opportunity to vent his anger and defend his record, the judge did nothing to stop him and even engaged in conversation with him. To make matters worse, media coverage of the whole event was a shambles. At first, the media were told that they would be able to cover the event, and then at the last moment they were refused entry, except for a privileged few who were not permitted to record the deliberations. Video images of the event were first issued without sound, and when, finally, a video with sound was provided to the media, the words "Cleared by US Military" were displayed prominently throughout. Since then, preparations for the trial have advanced steadily but politicians still seek to influence the process, which continues to suffer from inadequacies. By way of example, on 14 December, 2004, Iyad Allawi declared that Saddam's trial would commence within a week. He also announced on the same occasion that a new mass grave had been found and that it contained 500 bodies, although diggers at the site claimed to have found only two bodies. The day after these declarations were made, Allawi announced his candidature for the elections and the list of politicians that would run with him. In addition, organisations such as Human Rights Watch have complained that the process continues to violate a number of basic due process requirements: the accused has only recently been allowed to meet his defence attorneys, there is no requirement of proof beyond a reasonable doubt in order to convict, and statements extracted through coercion may be admitted into evidence. This shambolic state of affairs is in stark contrast to the recent efforts to try crimes against humanity in the former Yugoslavia and Rwanda. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by United Nations Security Council Resolution 827. Resolution 827 also urged states and other organisations to "contribute funds, equipment and services to the International Tribunal, including the officer of expert personnel". Today, the ICTY's has more than 1,200 staff and an annual budget of more than $270 million. Its judges are elected by the General Assembly of the United Nations, and originate from countries including, but not limited to, France, Zambia, Portugal, the United States, and Australia. The judges therefore represent the main legal systems in the world, as a result of which the tribunal benefits from a wide-ranging variety of legal expertise. In this context, the distinguishing feature of the Iraqi special tribunal for the trial of Saddam is that the judges are all Iraqis. Bearing in mind the composition of the ICTY, this is somewhat counterintuitive. Indeed, whereas many of the defendants that have been made to appear before the ICTY committed their crimes in what could be described as a national context, many of Saddam's crimes, including the invasions of Kuwait and Iran, were international by their very nature. It is strange therefore that there is not a single judge from the former Yugoslavia that sits on the ICTY whereas there is not a single non-Iraqi that sits on the Iraqi special tribunal. The standard argument that has been advanced in order to justify the Iraqi-only policy is that the process must be entirely national and that efforts should be made to avoid provoking Iraqi sensibilities. This is obviously a very delicate issue (even though it didn't seem to matter in the context of the former Yugoslavia), but the manner in which it is being approached is completely artificial. Iraqi jurists have lived through the most difficult of times: they were cut off from legal developments in the rest of the world throughout the sanctions period, Saddam made and broke law at a whim, officials were completely unaccountable, and the capacity of court rooms were reduced to a crude joke throughout the 1990s. Such circumstances would obviously affect anyone's ability to ensure that proceedings relating to crimes against humanity would be carried out in accordance with general due process requirements. The occupation authorities have clearly recognised this, and a number of measures have been taken to remedy the problem. First, Article 6 of the Coalition Provisional Authority's Order No. 48, which establishes the Iraqi special tribunal, provides that "[t]he President of the tribunal shall be required to appoint non-Iraqi nationals to act in advisory capacities or as observers to the Trial Chambers and to the Appeals Chamber. The role of the non-Iraqi nationals shall be to provide assistance to the judges with respect to international law [...] and to monitor the protection by the tribunal of general due process of law standards." In addition, the Iraqi judges that will be carrying out the trials have been sent back to school: they have received training from American law professors, and have held courtroom rehearsals in Italy and the Netherlands. Thus, instead of simply referring to experienced tribunals such as the ICTY, the authorities have maintained that a national tribunal is necessary, even though they have imposed foreign advisors on the process, and even though they have sent Iraqi judges to be reeducated abroad. Many suspect that the reason why a national court has been given jurisdiction over Saddam's crimes, in contrast with the international tribunals established in the former Yugoslavia, is that an international tribunal might allow the accused too much freedom to reveal uncomfortable facts in his defence relating to the support provided to him by foreign governments. Time will tell whether these suspicions are warranted but if past experience serves as any indication, it seems unlikely that the authorities will hesitate to violate the rights of the accused if they consider it preferable to do so. One of the important achievements of the process that was adopted in the former Yugoslavia is that through the professional manner in which proceedings have been carried out, important historical records of what took place in the country during the 1990s have been established and are no longer the centre of dispute. In Iraq, there is no agreement between the different communities as to what took place during the Saddam years. It is tragic therefore that, because of the manner in which the Iraqi special tribunal has been conducted, it is no longer certain that history will be laid to rest. Hopefully, the new Iraqi authorities will wake up to this reality, and rectify the political opportunism and the lack of professionalism that has thus far surrounded the trial of Saddam.
