Skip to main content

A scowling Saddam Hussein looms large in the footage of his trial before the Iraqi High Tribunal (IHT) - pounding the table, arguing, at times shouting. The outtakes picked for the evening news give the impression of a courtroom dominated by him and his half-brother, Barzan al-Takriti. In a trial of a once-powerful and ruthless political leader, theatrics - even histrionics - are to be expected. A smart defendant knows that if he politicizes the process, he can question its credibility and neutrality. Provoking the court to take heavy-handed measures to control him only underscores his claim that the whole proceeding is based on illegitimate force.

But the impression that Saddam and Barzan have successfully undermined the judicial process is misleading. As I sat in court, day after day, in November, December and March, I saw that the defendants were often quiet beneath the vaulting 10-meter ceilings of the former Baath Party Regional Command headquarters. Despite outbursts of rudeness and defiance, they also eventually complied with the judge's directions - albeit after confrontations and crises.

Judging the court by the defendants' behavior alone (however entrancing it is to the news media) misses what is at stake in these and subsequent trials before the IHT: justice under law for hundreds of thousands of victims of human rights violations and a methodical accounting of state-sponsored crimes that rose to the level of genocide and crimes against humanity.

Trials of this kind are an enormous challenge to any legal system, but from my time in Baghdad attending the court and talking to its officials, it was obvious that the IHT faces special hurdles. It is a brand new institution trying to do something that is new to Iraq - prosecute international crimes in accordance with international law. And this under the spotlight of national and international audiences who look at the issue through very different lenses.

Ordinary felony trials last about 30 minutes in Iraq. The cases I observed at Baghdad's Central Criminal Court did not call witnesses or test evidence, and presentations by the defense and prosecution were cursory. Sentences from 15 years to life were handed down by the court in a matter of minutes. At 21 trial days and running, the Dujail trial is already probably the longest trial that any of the Iraqi lawyers involved (prosecution and defense) has ever run. For ordinary Iraqis, it is hard to understand why trying Saddam takes so long.

Government officials in Iraq know little about the court, and do almost nothing to defend it or promote its objective of according a fair trial. Instead, in the lead-up to the elections, members of Parliament and even some ministers scored political points by attacking the court as weak and demanding the dismissal of the presiding judge. The judges are feeling enormous pressure, which must be a bitter pill to swallow when one remembers that they are risking their lives and those of their families to conduct these trials as best they can.

These problems of public perception reflect one of the institutional failings that plague the court. It has no effective press or education office, which is indispensable to explaining its actions. Administratively, the court is struggling to perform the day-to-day tasks needed to keep the trials running. Essential documents were in fact illegible when first provided to the defense: In our page count, at least 30 percent of the Dujail evidence dossier was unreadable. As yet, there are no detailed indictments against individual defendants, so it is still unclear how the evidence in the dossier (which is the same for each defendant) is related to their individual responsibility.

International observers such as myself see judges who are well-intentioned and committed, but who are struggling to manage the most complex cases they have ever seen. We see witness testimony that is powerful and moving, but not necessarily directed by the prosecution to demonstrate the elements of the crimes. We hear complaints from Iraqi defense counsel that they have no training in international criminal law and must spend hours trying to access and communicate with the court offices in the fortified Green Zone.

Privately, diplomats in Baghdad share Human Rights Watch's worries that the trials will fall far short of international standards. Despite the serious problems with the Milosevic trial, the International Criminal Tribunals in The Hague and the Special Court for Sierra Leone (a joint UN-Sierra Leonean body) have made real strides in conducting trials that are fair, effective and credible. The IHT should have benefited from this accumulated experience. But the Bush administration's ideological opposition to international courts led it to reject from the outset an internationalized court that could engage this experience.

The IHT is only in its infancy, but it is on a very steep learning curve. Following Dujail will most likely be the Anfal case, which concerns the killing of 50,000-100,000 Kurdish civilians by Iraqi security forces in a counterinsurgency campaign that included the use of chemical weapons. It will be a case of truly global significance. The concern is that the Baghdad court may not find a place alongside the courts at Nuremberg, Jerusalem, The Hague and Freetown, which conducted trials that stood the test of time.

Nehal Bhuta is Arthur Helton fellow at the International Justice Program of Human Rights Watch. This commentary first appeared at bitterlemons-international.org, an online newsletter.

Your tax deductible gift can help stop human rights violations and save lives around the world.

Region / Country