It could be the trial of the century, but who gets to do it, and where? Nyier Abdou looks at the controversy over trying Saddam Hussein Hours after the news broke that Saddam Hussein had been captured by US forces on Sunday speculation was rampant as to when and how the former dictator would be answering for a catalogue of alleged war crimes from the inside of a courtroom. Since the fall of Baghdad on 9 April the hunt for Hussein has overshadowed the post- war effort. With time and imagination, many -- be it members of the US administration or members of the US-appointed Iraq Governing Council (IGC) -- had already formulated the kind of trial they wanted to see for the fallen tyrant. Last week, the IGC announced its decision to set up a separate tribunal for trying war crimes and crimes against humanity. Set up before the capture of Hussein, it is this judicial process -- what IGC member Adnan Bachachi called a "noble experiment" -- that IGC members have proclaimed will try Iraq's biggest catch. Though the US has not explicitly stated whether Hussein has been given prisoner- of-war status, it has stressed that the former leader has been treated "in accordance" with the 1949 Geneva Conventions, which adjudicate the so-called laws of war. Both the Geneva Conventions and the International Covenant on Civil and Political Rights (both of which the US and Iraq are signatories of) demand that prisoners be tried by an "independent and impartial" process and many legal experts and commentators have questioned if this is possible in an all-Iraqi tribunal. On the fringes of the Second Cairo Conference, a gathering of international activists opposed to occupation in Iraq and Palestine, former US Attorney General Ramsey Clark expressed disbelief that a trial by the IGC court could be a fair one. Saying that the occupation meant a "trial by his enemies", Clark told reporters that the case would be "pure victor's justice". Speaking with reporters after the news of Hussein's capture, Clark denounced the IGC as "the Bush council" and suggested that the formation of the court was a US directive. "You think that's their idea?" he asked incredulously. "The Bush administration told them to do that." Painting the council as mouthpieces for the Coalition Provisional Authority (CPA), Clark remarked: "Who announced that the DNA tests prove that the person captured is Saddam Hussein? The Iraqi council. You think they know how to take a DNA test? Do you think that's their test? No. [US Administrator Paul] Bremer gives them a piece of paper and says, 'Read this, just like it is'." "It seems to the world like they've done something," he added. "They haven't done anything. They're puppets. And puppets who try cases don't do justice." Many human rights and legal experts have expressed concern that the rush to declare an internal Iraqi legal process has closed the door on the route of international justice -- a realm the US has aggressively sought to de- legitimise. Eric Metcalfe, director of human rights policy at the London-based legal watchdog Justice, told Al- Ahram Weekly that to avoid the "taint" of either Iraqi "vengeance" or American "victor's justice", "the best approach would be an ad-hoc international tribunal set up either under the UN or with UN cooperation, along the lines of those in the former Yugoslavia, Rwanda or Sierra Leone." Although the US played a large role in the apprehension and extradition of former Yugoslav leader Slobodan Milosevic to the UN war crimes tribunal in The Hague, it has since retreated from the concept of international trials, instead "un-signing" the UN Rome treaty that established the International Criminal Court (ICC). In a press conference on Monday Bush left no room for doubt that the UN was not in the game. "We will work with Iraqis to develop a way to try him [Hussein] that will stand international scrutiny," he said. "There needs to be a public trial and all the atrocities need to come out, and justice needs to be delivered. And I'm confident it will be done in a fair way." Some people have speculated that because the quest for international justice regarding war crimes and crimes against humanity now falls in the hands of the ICC, Hussein could be tried there. The jurisdiction of the ICC, however, does not extend to Iraq or the greatest charges of war crimes Hussein will inevitably face. International legal experts are clear on this point. Christopher Hall, legal adviser at the International Justice Project at Amnesty International, told the Weekly that because the ICC is not retroactive, it cannot try crimes that occurred before it was established on 1 July 2002. The crimes of most concern focus on the crushing of the Shi'a and Kurdish uprisings following the first Gulf War, the de-Arabisation programme in the north, the dislocation of the Marsh Arabs and the 1988 Anfal campaign. The crimes must also have taken place on territory belonging to states that are party to the Rome Statute, or by nationals of state parties. Iraq is not a signatory of the Rome Statute and neither are Iran or Kuwait, both of which may have grievances of their own that they would like to see addressed legally. The new special court set up by the IGC will try crimes taking place between 17 July 1968 -- the takeover of the Ba'ath -- and 1 May 2003, when major combat operations in the war in Iraq were declared over. Though the death penalty has been suspended under the CPA due to pressure from Britain, a changeover of sovereignty could see a return of capital punishment. Iraqi leaders have expressed a sense of urgency regarding a trial for Hussein, but the US has so far counselled patience. Cries of bias are only augmented by comments like that of IGC- member Muwafaq Al-Rubei, who declared: "This man killed hundreds of thousands of people. If he has to be killed once, I think he has to be resurrected hundreds of times and killed again." "The essential problem is one of perception -- the idea that justice must not only be done, but be seen to be done," suggests Justice's Metcalfe. Noting that Iraq "has not had an independent judiciary for several decades", Metcalfe argues that selecting judges with "sufficient expertise and background" may be a "problem". Furthermore, judges selected by the IGC could be seen as tools of the American occupation. "Even if this is an unfair charge and the new judges really are impartial, the problem of perception remains," says Metcalfe. "In general we believe there should be an important element of internationalisation in any proceedings," remarks Kenneth Hurwitz, senior associate at the International Justice Programme at the New York- based Lawyers Committee for Human Rights (LCHR). "But we do not see this as being at odds with the trial being a genuinely Iraqi proceeding," he told the Weekly. Pointing to decades of corruption that have crippled the Iraqi legal system, Hurwitz notes that an exclusively Iraqi process could end up plagued not just by issues of legitimacy but also technical capacity. "Law libraries, forensic laboratories, investigative technologies, reliable police, manifestly impartial jurists -- all of this must be largely rebuilt," says Hurwitz. He added that it seemed careless to waste the lessons learned by other societies who have struggled with "somewhat similar" experiences. "[They] could substantially assist," he said, "sparing the overstrained Iraqi system from having to re- invent the wheel."
