Last week Adil al-Zubeidi, a leading defense lawyer in the trial of Saddam Hussein and his erstwhile political colleagues, was assassinated on the streets of Baghdad. It was the second such killing in less than a month, and it has caused many to question whether the trial can be a fair one. How, more than a few commentators have asked, can the judges, lawyers, defendants and witnesses be expected to participate in this high-profile trial when their lives and their families’ lives are under threat?
Meanwhile others are advocating a more forceful position. One American lawyer has suggested that when the tribunal reconvenes at the end of the month, the judges should take disciplinary action against those defense lawyers who carry out a threat to boycott the trial, and that court-appointed lawyers should take over the defense — even over the objections of the defendants. Another American lawyer has gone so far as to suggest that the assassinated lawyers have only themselves to blame because they made their identities public.
On both sides of the debate, however, insufficient consideration has been given to the real purpose of taking Saddam and his co-defendants to court. The primary reason for putting these alleged serial war criminals on trial is to bring some measure of justice to those of his victims who are still alive — and this can be done only by a trial that has wide credibility and is generally perceived to be fair and just.
In order for the inevitable denials of Saddam’s wrongdoing to be rebutted, evidence must be gathered meticulously and presented efficiently in a public court to which the victims have access, either in person or through the media. Given the current climate of fear in Iraq, however, it is difficult to see how the case can be tried openly without compromising the safety of those involved.
But it is not only in regard to the parlous security situation that the trial now under way will have great difficulty in achieving justice for the victims.
The indictment against Saddam covers the murder of a relatively small number of victims in 1982, and does not relate at all to the myriad war crimes he allegedly committed during his oppressive rule. These include, among others, genocide against the Kurds and egregious war crimes alleged to have been committed during Iraq’s war against Iran.
It is said that this is the first of other indictments to come. If that is true, I question the wisdom of approaching the trial in this episodic fashion. The death sentence is apparently being sought in this trial, and if it is imposed it will cast an unpleasant shadow across any other proceedings that might follow.
Not only will a trial of Saddam that does not have credibility deny his millions of victims any meaningful justice, but it also will make him a martyr and help convince his remaining supporters that he must be innocent of the more egregious crimes alleged against him. They will suggest that if he were truly guilty of those crimes, he would have been indicted for them rather than for a relatively insignificant incident that took place some 23 years ago.
The sensible approach would have been to hold the trial only after the imminent national elections. Even accepting the legal competence of the provisional government to commence this trial, a democratically elected government would have been the appropriate authority to set up the tribunal to try Saddam and his senior lieutenants. Such a tribunal would not have carried the taint, as the current one does, of having been established by a foreign force in occupation of Iraq. It would not have carried the taint, as this one does, of serving the interests of that foreign force rather than those of the victims.
Furthermore, such a tribunal would have been much freer than the current one from charges of politicization. Supporters portray the ongoing trial as a confidence-building step for the interim government of Iraq, one that demonstrates that it is truly in charge of events and will be ready next month to hold the first democratic elections under the country’s new constitution. This political motive, it has been suggested, is supported by the United States out of the belief that the sooner a permanent Iraqi government is installed, the sooner Washington can bring home its troops .
Such short-term political considerations, however, should be tempered by a recognition of the importance of providing a reliable historical record — something that can derive only from a credible trial of Saddam and colleagues.
A clear understanding of the past, based on fact and not on self-serving fabrication, was the gift given to the Balkans and Rwanda by their respective United Nations ad hoc tribunals. It was also the gift given to the people of South Africa by the country’s Truth and Reconciliation Commission. In all three cases, the details of the heinous crimes committed have been established — and that has provided a sound foundation on which future peace and reconciliation can be built.
I would suggest that when elected next month, the new government of Iraq should take stock of the present proceedings against Saddam and his co-defendants and reconsider, as it will have the authority to do, how to appropriately prosecute these alleged serial war criminals. The country’s new leaders should recognize that until the security situation in Iraq allows for a fair and just public trial, one should not be held — and that if time is of the essence, consideration should be given to holding it in a more secure environment outside of Iraq.
Richard Goldstone, former chief prosecutor of the United Nations International War Crimes Tribunals for the former Yugoslavia and Rwanda, is a former justice of the Constitutional Court of South Africa.