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Iraq: Experts Say Saddam Hussein Trial Would Be Politically Charged, Legally Ambiguous

Prospects for organizing a trial of former Iraqi ruler Saddam Hussein are daunting due to Iraq’s continuing insurgency and plans to hold elections for a transitional government early next year. Still, a panel of experts on the region and war crimes tribunals met recently in New York to consider some of ways Saddam might be tried and to weigh the advantages and drawbacks of different scenarios. There was general agreement among the panelists that any trial of Saddam risks being highly politicized and could be used as a struggle for power among Iraq’s competing factions.

New York, 15 November 2004 (RFE/RL) – The crimes said to have been committed by Saddam Hussein date back decades, and his victims number in the hundreds of thousands.

But trying to bring justice to the now-imprisoned Iraqi ruler could prove a messy, divisive affair.

That is the sentiment of a panel of experts who recently met at New York University (NYU) in New York City to discuss the prospects of trying Hussein. The panel sought to weigh advantages and drawbacks to putting Hussein on trial under various makeup’s of government in Iraq or before an international tribunal.

Panelist Noah Feldman warned that Hussein might not receive a fully fair trial from any future Iraqi government dominated by the country’s majority Shi'a population. The Shi'a were heavily repressed by Hussein.
If the trial were to be held by an international tribunal, the Iraqis might not accept the punishment it metes out, because neither the United Nations nor European Union approves the death penalty.

“This Shi'a-dominated government will have a quick, relatively dirty trial where it will be definitively shown beyond reasonable doubt that Saddam [Hussein] engaged in several acts of murder, many of them probably by his own hand, and some sort of testimony will be listed to that effect that almost certainly will be true testimony, and then he will be executed and that will be that," Feldman said.

Feldman is an NYU law professor and a former senior adviser on constitutional law to the Coalition Provisional Authority (CPA) in Iraq.

Feldman also said that an international trial similar to the one against the former Yugoslav President Slobodan Milosevic in Hague would be unlikely in the case of Saddam Hussein.

If the trial were to be held by an international tribunal, he warned, the Iraqis might not accept the punishment it metes out, because neither the United Nations nor European Union approves the death penalty.

Gary Bass is an assistant professor of international affairs at Princeton University and is the author of a book about war tribunals. He told the panel that conditions in Iraq might be more favorable for trying ussein at home than was the case for the former Yugoslavia and accused war criminal Milosevic.

“I think there is a sense within the [international] human rights community that international tribunals are almost invariably the better way to go. And I want to suggest that this may not be the case and in fact there are some reasons to think that national trial might be more appropriate for Iraq if you can get away with that,” Bass said.

Bass said that if an Iraqi government -- current or future -- finds a common ground for the interests of the Kurds minority and Shi'a majority -- that could be a positive sign for conducting a trial. The advantage, he said, would be that the trial would then have the air of a national Iraqi proceeding. It could be conducted in the local language -- Arabic -- avoiding immense difficulties that could stem from trying to have everything translated as in an international trial.

Some experts on Iraq have said they worry that certain members of the current Iraqi government might use their influence in an attempt to squash a possibility for an open trial. Saddam Hussein, it is speculated, may jeopardize the political stance of such members by divulging compromising evidence against them in an open trial.

During a visit to New York in June, interim Iraqi Foreign Minister Hoshyar al-Zebari said that such fears are unjustified.

“And publicly we are not afraid really to have a public trial of Saddam Hussein," al-Zebari. "And all those who say that he is going to reveal [compromising information], to embarrass people -- [I say] no, we would welcome that [trial] as Iraqis.”

Feldman warned that some of the charges against Hussein will not be very popular in Iraq, citing the occupation of Kuwait as an example.

“No Iraqi that I’ve ever met, frankly, and I include people in the governing council and I include people that are presently sitting in the United Nations -- who are strong anti-Saddam advocates for the last 20 or 25 years outside of the country -- not one those thinks that the invasion of Kuwait was a violation of international law, much less a violation of international law of the kind that will get you executed," Feldman said.

It is especially unlikely, Feldman said, that such an argument -- the invasion of Kuwait – would be persuasive to Iraqi judges, who might be tempted to draw comparisons to the U.S. occupation of Iraq.

Mark Danner is a staff writer for "The New Yorker" magazine and a professor of journalism and human rights at the University of California at Berkley. He dismissed the idea that with the demolition of Saddam Hussein’s regime, Iraq’s society will return to some kind of political purity with respect to law.

“The notion of an apolitical trial or trial put on, probably with the help of the international community that will return Iraq somehow to law, and do it through the trial and the prosecution and the punishment of Saddam and his henchmen -- strikes me as an impossibility,” Danner said.

It will be a deeply political event and it has to be, Danner said. The first reason is that Iraqis did not overthrow Hussein, the Americans did. He said that means the trial could be viewed by many Iraqis, especially the Sunni Iraqis, as the next step in the illegal occupation of their country.