What's
it about?
In its first public act, the new interim Iraqi Government has begun the process to put Saddam Hussein on trial. But how are we to grasp a judicial system so foreign to our own, and a trial that deals with crimes beyond the imagination of any Australian? How will Hussein be tried? What are the allegations against him? Will he be entitled to defend himself, and will he have the same rights as a defendant in an Australian criminal trial?
What is a war crime trial?
Absurd as it seems, warfare is underpinned by long established ‘legal' concepts, in our times most especially since the aftermath if World War Two. The Allies had mountains of evidence pointing to war crimes by the Nazis, including genocide and systematic abuse of prisoners of war. Churchill and Roosevelt were apparently prepared to apply summary justice, without the benefit of trials (Stalin is said to have proposed even swifter means of retribution), but in the end a longer-term view prevailed - trials that upheld the judicial principles of the victors would do more to promote democratic ideals, so an international tribunal was convened in Nuremberg. It has lent its name as a precedent for the meaning of war crimes, and although the process has not been repeated (despite other genocides), it educated more than one generation that war crimes are real, and that there are standards of behaviour that must cross international boundaries and ideologies.
Saddam on trial
It's a slam dunk, isn't it? Over the 34 years of his regime, there have been so many reliably reported instances of crime against individuals (murder, rape and torture) and groups (the gassing of the Kurds), it would seem that the most inexperienced prosecutor should be able to secure a conviction in a court of any colour. But you only have to look to the trials against former leaders in Yugoslavia, Rwanda and Sierra Leone to know that tyrants occupy courts and tribunals in long, complex processes that employ thousands of lawyers and generate millions of pages of testimony.
So what's in store for Saddam? The biggest problem in these types of trials is separating the command and control, where political leaders can claim that any war crimes were committed by individuals without their consent. In a dictatorship, however, it can be assumed that all important decisions emanate from one source.
So here's a primer:
How will it happen?
The Iraqis have set up a special court precisely for this purpose. Their jurisdiction includes genocide, crimes against humanity and war crimes committed during Saddam Hussein's rule (1968-2003).
What's he charged with?
You might have already seen the preliminary hearing, which allowed Hussein to face his accusers for the first time (and allowed us to see him for the first time since he crawled out of a spider hole). Looking a little like a veteran of 'Miami Vice', he rambunctiously defended himself against charges including gassing Kurdish villagers in Halabja in 1988; killing thousands of members of the Kurdish Barzani clan in 1983; killing political activists; killing religious figures; ethnic cleansing of the Kurds; and the invasion of Kuwait.
Does he have a lawyer?
It's hard to know who's representing him and who's just looking for publicity. According to some reports his exiled (and extremely wealthy) daughter has hired a team of twenty-plus lawyers. One of these has suggested that they would get help from another 1,500 lawyers worldwide.
What punishment could he get?
There was no death penalty during the term of the Coalition Authority, but it looks as though it will be reinstated. The U.S. supports the death penalty for Hussein, but this is at odds with the U.K. and U.N. position.
Is this the right way?
You won't find many defenders of Hussein. Even those who decry the invasion of Iraq are usually at pains to distance themselves from Hussein the dictator, and have little or no problem with legal retribution against him. After that it gets tricky.
Who should try Hussein, an Iraqi or international tribunal? And then there is the more difficult question - is he even entitled to the benefit of a fair trial, with its emphasis on evidentiary procedure and the unlimited right to mount a defence?
What we think
It's not reasonable to think of Hussein with the Australian liberal mindset that offers everyone the same rights, no matter their crimes or apparent guilt (think of the Port Arthur massacre, committed in front of dozens of witnesses). For us this is bound up in our concept of a just and fair society, and in the end it protects us all. But Iraq is not Australia, and their situation is not easily translated to our own. Nevertheless, as hard as it is for some Iraqis to swallow, Hussein should be tried in an open court, with full rights of representation and ‘due process'. But that doesn't mean he should be permitted to spend years turning the forum into a propaganda tool. Most importantly, he should not be allowed to unreservedly cross-examine prosecution witnesses who risk their lives by their very presence in the court, and he should not be permitted to invoke a privilege against self-incrimination.
Slobodan Milosevic has been able to effectively derail his never-ending trial by using his questioning of witnesses to eat up time, and take endless objections to evidentiary rulings. Rigorousness is not always a good thing in these types of cases, where the defendant is unquestioningly guilty of genocidal crimes - true, this shortcuts the very idea of a trial, but Hussein is one of few for whom this allegation could be supported so unequivocally. And what legal defence is there to a charge of genocide, that it was self-defence or an accident? In truth it either happened or it didn't, and that's the only determination a judge needs to make (ensuring that the evidence is presented fairly i.e. it is truthful, not coerced etc. - and for that Saddam needs a trial).
Saddam's victims should have a voice, and Saddam should have his day in court. International law is full of immense complexities, but some situations are so unique that one voice should be heard above all others, and that is the victims. Saddam will have his chance to be heard, but legal rights should not trample on victims who have suffered more than we can ever understand.
By Geoffrey Winn
Creative Director
www.law4u.com.au