February 26, 2005

Ali Hassan al-Majid's trial will be a major test of whether the Iraqi Special Tribunal is up to delivering justice. The alleged crimes are extremely serious, making it all the more important that the tribunal get it right, demonstrating that it is independent of political pressure and will adhere to international fair trial standards.

Jawad had not seen Mustafa since that night four years earlier. The family had never been told if he had been charged with a crime or put on trial. The coffin at the funeral service was empty. But a few weeks earlier, after the fall of Saddam Hussein's government, a document found in the looting of a local government office contained the names of 120 men who, the document said, were executed in the March-May period of 1999 for "taking part in the events of March 17-18"—what had become known as the "Sadr intifada." Mustafa's name was on the list

Most of those executed in those weeks were apparently killed en masse and buried in unmarked mass graves around Basra. Human Rights Watch interviewed independently several witnesses who claimed to have witnessed mass executions and burials at that time. At one site, in Al-Birghisia about 48 kilometers south of Basra, 34 bodies were exhumed on May 7, 2003. Twenty-nine of those were identified by relatives as corresponding to names on the execution list recovered a few weeks earlier.

Jawad Qadhim Ali and his family lost any hope that Mustafa might still be alive, even though his remains were not among those recovered from the Al-Birghisia burial site.

The list of names of executed men also indicated those responsible for these crimes: "officers of the police directorate" in the case of one group, senior Baath Party members in the case of another, relatives of security officials killed in the uprising in a third instance. The document also bears notes stating that the mass executions were carried out "under order of the commander of the southern sector" At the time of these events the commander of the southern sector was Ali Hassan al-Majid, a close associate of Saddam Hussein widely known in Iraq as "Chemical Ali" for his commanding role a decade earlier in the campaign using chemical weapons against Kurdish villages in Iraq's northern sector - a campaign that was also marked by summary executions, arbitrary arrests, disappearances, torture, and other war crimes and crimes against humanity.

Majid has been in U.S. custody since August 2003, and Iraqi officials have said that he will be among the first to be tried before the Iraqi Special Tribunal set up to try and punish former officials most responsible for the crimes and atrocities of the Saddam Hussein era.

Majid's trial will be a major test of whether the Iraqi Special Tribunal is up to delivering justice. The alleged crimes are extremely serious, making it all the more important that the tribunal get it right, demonstrating that it is independent of political pressure and will adhere to international fair trial standards.

One problem is that the statute setting up the tribunal incorporates Iraqi law permitting use of the death penalty, an inherently cruel and inhuman punishment.

Another problem is that Majid and other high-level former officials in custody have only recently been allowed to consult with legal counsel. We don't know if the tribunal has remedied inconsistencies in its draft rules of procedure that may allow use in court of statements possibly taken through torture and mistreatment. The final rules need to eliminate this ambiguity and also ensure that such statements are not used in any way against a suspect, such as for investigative leads or to induce a repeat "confession" before the court.

Some of the lack of publicity surrounding the establishment of the Iraqi Special Tribunal is understandable, such as not disclosing the names of judges for security reasons. But the lack of transparency in other areas, such as the draft rules of procedure and elements of crimes, has no apparent justification.

For the sake of Jawad Qadhim Ali's family and his murdered son Mustafa, and for Majid's many other known and unknown victims, the new Iraqi Transitional Government should take the steps needed to see that justice will be done and will be seen, in Iraq and beyond.

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