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Saddam’s Tribunal

Two experts discuss how Saddam Hussein's trial stacks up to other noted war crimes tribunals of the modern age.

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    Under the eyes of Iraqis and observers around the world, the televised trial of Saddam Hussein and seven others has unfolded with gruesome testimony and plenty of political theater.

    And once again today, there were frequent outbursts from two of the defendants, Saddam Hussein, and his half-brother, Barzan al-Tikriti, the former chief of intelligence. How does this trial over the murder of 148 Iraqis and in a Shiite town more than 20 years ago stack up when compared to other noted war crimes tribunals of the modern age?

    To explore that we turn to Iraq's deputy representative to the United Nations, Feisal Istrabadi; he's also a lawyer, and we expect to be joined momentarily by Miranda Sissons, senior associate at the Center for Transnational Justice, which advises countries in war crimes prosecutions. She's been in the Baghdad courtroom for every day of this trial except today.

    And, Ambassador Istrabadi, welcome. To Americans, this process, this procedure, seems most unusual. What was it modeled on? Who set it up this way?


    Well, the Iraqi judicial system is based on the European system, the French system. Iraq is what is called a "code civile" country, so it looks very strange to anyone accustomed to the Anglo-American system of justice with juries in which trials occur over a comparatively short period of time, and they occur day after day after day until they're finished.

    Iraqi trials, again modeled on the French system, the European system, can take much longer. The most obvious difference between the two is that there's no jury. There are a series of judges who bring the — who prepare the case, so-called investigative judges, and then a trial judge who actually hears the case.

    He not only tries the case as — in terms of making legal judgments, but is also the — but is also the ultimate finder of fact. So it's a very different system than the system that — obtained in the United States and any other common law country.


    Another way in which it seems very different, at least to myself watching it on Court TV today, which one can, is that the way witnesses and the defendants both just speak out. When the witness stands up and starts to talk, he just keeps talking. There's no questioning. There's no particular cross-examination by either the judge or the lawyers.

    Then the defendant stands up, unbidden, it seems — whether it's Saddam Hussein or his half brother, in particular those two — and they start berating the witness and, you know, what an idiot he is, and giving testimony themselves. Again, they're not cross-examined.

    How does a judge — there's a chief judge, I know, and four other judges there — how does he discern the truth through a process like that?


    Well, I will, you know, admit to you that that is probably not the system which should obtain, as it were, according to Hoyle. There is an opportunity for cross-examination. There have been some witnesses who have been cross-examined previously.

    But, again, you are running a sort of a balance between shutting down someone like Saddam Hussein from speaking, in which event you can be accused of sort of trampling on his right to be heard and on letting him go a bit. And that is a very delicate balance.

    It seems to me that what the judge has been doing here is sort of letting Saddam go. How long he chooses to tolerate some of the abuses, obviously, is a matter of his own discretion. It's a very difficult balance to make, however.


    We have just been joined now by Miranda Sissons, whom I introduced earlier, from the Center for Transnational Justice. And we were just talking about how this trial was designed, that the Iraqis set it up themselves. And you've been there every day. How does it compare to the kind of international war crimes tribunals that we've seen over recent years? What are the big differences?


    I think the big difference is, firstly, that this is a domestic court that is trying international crimes, as well as some domestic crimes, if it wishes to do so, that has benefited greatly from American assistance in its development and its setup.

    There have been other examples of domestic courts seeking accountability for international crimes and crimes of formal leadership. This is one of the most important domestic efforts that there has been, a very ambitious one.

    But I think it's probably important — for most people what they're seeing in the courtroom differs substantially from other international crimes because the underlying law relies extremely heavily on the Iraqi law, the Iraqi criminal procedural code, and norms of Iraqi law that may not be familiar to common law, to people living in common law systems.

    So it's a model in which the judges are questing for truth, rather than more adversarial system that we will have seen more familiarly in places like the international tribunal for the former Yugoslavia, for example.


    I was just asking Ambassador Istrabadi, is it unusual or is it more common in these kinds of trials to, for instance, have both the witnesses and the defendants basically just speak at will without being cross-examined, without being questioned, without being led in the questioning at all?


    Well, it's a fundamental hallmark of the Iraqi legal framework, although it hasn't been used greatly in practice until recently. Like other civil law systems, that the defense can cross-examine witnesses through the judges, and the defendants also has the right to do so.

    Perhaps what you're talking about is the style that the judge has — with which the judge is choosing to control the courtroom. He is certainly someone who is seeking to use a variety of tools to control defendants in what would always be a very difficult task. And we think that there is a steep upward learning curve that pertains to this trial.


    Ambassador Istrabadi, it was, I gather, the Iraqis who insisted they wanted this trial to be in Iraq and not have him sent, say, to The Hague. Why was that?


    There are several reasons. One of them is a sense of being the direct victim of Saddam Hussein and his regime for 35 years. We believe it was in the first instance our right to try him in an Iraqi tribunal.

    There is a second reason, which is an anomaly that obtains very often with international tribunals. International tribunals generally have jurisdiction only over major perpetrators of crimes, whereas domestic tribunals would retain jurisdiction over lesser perpetrators of crimes.

    An anomaly obtains in a system in which you have an international tribunal in that major perpetrators tried by internal courts are not subject to the death penalty so that you have — you potentially would have someone like Saddam Hussein not liable to be — to be executed were he to be tried in an international tribunal, whereas, if you could find a perpetrator — a low-level perpetrator — say a private or a corporal who fired a single bullet into the head of a single victim, and, therefore, not subject to the jurisdiction of an international tribunal, but subject to a domestic court tribunal, that individual could be subject to execution. It's a very strange anomaly, which —


    And you wanted to retain the death penalty option at least?


    Well, number one, it is deeply ingrained in the Iraqi legal system as it is in the systems of most U.N. member states. And number two, at least you want to obviate the anomaly that those who ordered mass genocide would escape the death penalty, whereas the individuals who carried out the orders might potentially not escape that penalty if they were prosecuted.


    Ms. Sissons, let me ask you about that. In terms of establishing responsibility, Saddam Hussein's responsibility, there has been really gruesome testimony, particularly today, by ordinary Iraqis of abuse they suffered and their family members suffered.

    So far, there has been no physically ear even testimony directly linking Saddam Hussein to that crime. Now, under international law, will the prosecution ultimately have to demonstrate that, or is it a dictator presumed responsible for — if it can be established that war crimes, essentially, or crimes against humanity have been committed in his name?


    No, it's — the mere presumption is not sufficient. I mean, one of the major challenges of these trials and all trials that we call of system crimes have to elucidate how and why the different commanders, the different top-level perpetrators, were involved in these crimes, whether they directly order them, whether they should have known that they were happening, but even though they denied that they had had any active knowledge, whether they knew about them and failed to prevent them.

    There are different avenues of command responsibility, and it's up to the challenge to the prosecutors and the court to elucidate those and clarify those very clearly for every single defendant in that courtroom. That's the way the process of justice is individualized, rather than putting eight people in the dock and saying, because you're the leadership, or because you were a Baath Party member in Dujail, you must be guilty, which is more relevant to the system that pertained to the Baathist era.

    The court has to trace the liniment of that command, and we understand that's a very rich body of documentary evidence in the trial dossier that the prosecution will be presenting to argue its case.


    Let me finally ask you about what happened today. Saddam Hussein, as you know, said he had been abused, physically, abused by the Americans who are physically holding him. Now, again, what is the norm here? Is it up to somebody to investigate that? If so, who?


    Well, I should say that it wasn't just Saddam Hussein who alleged abuse, but also Barzan al-Tikriti and Taha Yassin Ramadan. Those allegations must be investigated, as all allegations of torture should be. There's a political imperative here, as well as the legal imperative. Those allegations were made after weeks of — months of high-level news about torture in Iraq by American forces and by Iraqi forces.

    It is absolutely up to the court now to order a robust, impartial, and effective investigation into those allegations because that is the only way that people will know the truth of those allegations. And it is the only way that the court can convince people and show the world that it is committed to impartial justice.


    And let me get a quick response from Ambassador Istrabadi. Would your government launch such an investigation?


    Well, it perhaps may, but the point is that the allegation of having been tortured does not go to the issue of whether Saddam Hussein and his co-defendants are liable for the underlying charge.

    I would make an exception to what we've just heard from Miranda about what the standards are. What we're talking about here is an — this is the accusation, the allegation, after an assassination attempt on Saddam Hussein, a village was essentially wiped off the face of the earth.

    Now, in a regime, such as Saddam Hussein's regime, such as Saddam's Iraq, I think that an inference arises that security forces would not take those kinds of punitive action, engage in that kind of mass murder without the approval and indeed the instigation of the regime itself. Now, that, I think, is a fair argument that any prosecutor can make at any time under any circumstances.


    Ambassador Feisal Istrabadi, and Miranda Sissons, thank you both very much.

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