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While visiting London last week, Abdul Aziz al-Hakim, the head of the Iraqi Governing Council, said that he expected Saddam Hussein to face trial in an Iraqi-led tribunal created by the council in the week before Hussein’s capture, according to an Agence France-Presse report. The workings of that tribunal promise to be very different from what Americans are used to. They raise sharp differences of opinion among experts in international law. The Dec. 10 statute creating the Iraqi Special Tribune (available on the Web site of the Coalition Provisional Authority at www.cpa-iraq.org), outlines a system with some features that will be unfamiliar to lawyers steeped in the Anglo-American tradition. Like existing Iraqi criminal courts, and the French courts on which they are modeled, the tribunal is an accusatorial and not adversarial system, said Richard Dicker, director of Human Rights Watch’s international justice program. Investigative judges will gather evidence both for and against the accused and compile a dossier. It will be used by a prosecutor to prepare an indictment, and by a five-member panel of trial judges to govern the course of the proceedings. “Both the prosecutor and defense attorney will play a much smaller role than in American trials,” Dicker said. The trial panel (or panels-the statute allows for more than one) will render decisions by majority vote. Those decisions will be reviewed by a nine-member Appeals Chamber. No Ba’ath Party members need apply for a position with the tribunal. The governing council can appoint non-Iraqi judges (except at the investigatory level), but there is no requirement that it do so. That’s a sore point with Dicker, whose organization has suggested that an international presence be mandated to ensure expertise in complex war-crimes trials unheard of in Iraq. Professor M. Cherif Bassiouni of DePaul University College of Law bristles at the suggestion that Iraqi judges, perhaps supplemented by judges from other Arab countries, can’t handle the prosecution of Hussein and others accused of war crimes. Bassiouni wrote the first draft of the statute, prepared prior to the U.S. invasion, while he was a member of the U.S. State Department’s future of Iraq project. (A project whose conclusions were mostly ignored in the weeks following the invasion, according to recent press accounts.) “There are 700 sitting judges in Iraq and 1,200 retired judges, some of whom served before the Ba’ath regime,” he said. “Why can’t we come up with 20 decent guys?” He added that the Iraqi procedural law that will be relied on by the tribunal has a distinguished history, traceable to Egypt-”which codified its law before the United States”-and ultimately to France. The bulk of the tribunal’s law is supplied by provisions on genocide, crimes against humanity and war crimes newly set out in the statute and modeled on existing international agreements. Bassiouni agrees with Dicker in one sense. Since Iraqi judges don’t have experience in comprehensive war-crimes investigations, he said, the tribunal should limit itself to prosecuting the major crimes of major figures and not attempt to render judgment on the entire Ba’ath era. Douglass Cassel, director of the Center for International Human Rights at Northwestern University School of Law, is troubled that the tribunal will have jurisdiction only over Iraqi nationals and residents and only with respect to crimes committed between the rise of the Ba’ath Party to power in 1968 and May 1, 2003, effectively insulating Americans from prosecution. He worries that Arab observers will see the provision as the “fingerprint” of American domination. “Would a sovereign Iraqi government have gerrymandered the jurisdiction like this?” he asked.

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