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Iraq: Human Rights Watch Fears Justice May Not Be Served By Saddam's Trial

Saddam Hussein at his arraignment in July 2004 The much-awaited trial of former Iraqi leader Saddam Hussein and seven of his associates is due to start in Baghdad tomorrow. But on the eve of the proceedings, Human Rights Watch has issued a report casting serious doubt on the impartiality of the court and whether the Iraqi legal code -- in its current form -- can guarantee a fair trial.

Prague, 18 October 2005 (RFE/RL) – Campaigners at Human Rights Watch say they -- like millions of Iraqis -- have long waited for the day when Saddam Hussein would face a court of law.

Among them is Richard Dicker, director of the U.S.-based organization’s International Justice Program, who spoke to RFE/RL by telephone from Jordan, on his way to Baghdad, where he plans to observe the trial proceedings.

Dicker said Human Rights Watch (HRW) has spent more than a decade compiling evidence against the former Iraqi leader. But he says he fears the trial that is about to get under way in Baghdad will not be the exercise in justice so many have wanted for so long.

"I spent a year -- and Human Rights Watch spent longer than that -- trying to bring a case of genocide against the Iraqi government back in 1994 for the extermination campaign directed against the Kurdish population six years earlier, in 1988. So we have wanted to see those who had the greatest potential responsibility for crimes brought to trial. We thought that a fair and effective trial would be a means of bringing truth and some justice to the victims who had suffered so horribly. But for justice to be done, the trials, indeed, have to be fair," Dicker said.

HRW has issued a 19-page report in which it highlights why Hussein’s trial is unlikely to pass muster.

Hussein and seven other co-defendants are due to appear before a special tribunal in Baghdad’s heavily fortified Green Zone starting tomorrow. Initially, they will face charges relating to the murders of 140 men and teenage boys in the town of Al-Dujayl, in 1982. The victims -- mostly Shi’a -- were allegedly executed by secret police following an assassination attempt against the former Iraqi president.

Dicker said one of the main problems is that the trial will be run according to an outdated legal code whose provisions would now be considered unacceptable by courts in most countries. He says those standards fall short of the ones set by recent international human rights trials in The Hague, Tanzania, and Sierra Leone.

Under the Iraqi system, he noted, convictions are too easy to obtain and require too small a burden of proof.

"This tribunal is based on Iraqi criminal procedure -- the 1971 Iraqi Criminal Procedure Code. And its requirement [for conviction] is merely that the judges be 'satisfied' that the evidence convicts the accused. That standard of 'satisfied' -- far below 'beyond reasonable doubt' -- falls short of what's required by international law today," Dicker noted.

Perhaps most importantly, Dicker, like other human rights campaigners, notes that the Iraqi Procedural Code allows Hussein little unhindered access to his lawyers. This violates a basic tenet of justice in a democracy.

"We have in this statute not sufficient access by lawyers to their clients," he said. "Lawyers are able to see their clients only when an investigative judge of the tribunal is questioning an accused. We believe that the right to an attorney should begin much, much earlier in the proceeding."

Defense lawyers, he emphasized, must be given timely access to the prosecution's evidence -- before the trial -- so that they can prepare their case. But by all accounts, this has not happened.

"There is, in our view, no shortage of potential evidence that could be entered into the case against the leadership of the Ba'ath Party. What's absolutely crucial is that the accused and their lawyers have the ability and the right to contest and contradict the evidence, both documentary and testimonial -- in the form of witness statements that are entered into court as indications or evidence of guilt on the part of the accused," Dicker said.

Today's edition of Britain’s “Financial Times” newspaper quotes a lawyer close to the defense who says Hussein's team may seek a delay in the trial because of their inability to consult their client and review the evidence. They say the main body of the prosecution’s evidence was only submitted to the defense last month. The names of witnesses were allegedly blacked out, preventing them from being interviewed.

Many Iraqis and foreign human rights campaigners would like to see Hussein and his associates put on trial for much more than the 1982 Al-Dujayl murders. But again, Dicker worries that much of the evidence that could be used in such cases -- from mass graves to documents – has been compromised.

"In the immediate wake of the invasion, in the spring of 2003, Human Rights Watch researchers were aware of a number of mass-grave sites that were not properly guarded by the coalition forces and thus -- understandably, but quite tragically -- grieving relatives, seeking to find some information about their disappeared loved ones, interfered with or disrupted what might have been a potential of evidence in trials as they went through these mass grave sites, looking for some indication that their missing loved one might be there," Dicker said.

Lastly, Dicker pointed out that recent statements by top Iraqi government leaders raise questions about the ability of judges to operate independently and impartially.

“Saddam deserves a death sentence 20 times a day, but I believe in the general principle [which is against the death penalty]," Iraqi President Jalal Talabani said on state television last month. "Saddam is a war criminal. Saddam Hussein tried to assassinate and kill me 20 times. Saddam Hussein tried everything in order to put an end to us [Kurds], but we survived, and he ended up in prison.”

Dicker said such public statements by top leaders about what they expect from the trial is a “real cause for concern.”

See also:

Saddam Hussein's Trial Could Draw Line Under An Era

For the latest news and analysis on Iraq, see RFE/RL's webpage on "The New Iraq".

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