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In building the case against Saddam Hussein and senior members of his regime, war crimes investigators identified 10 mass graves in Iraq where they believed the most promising evidence lay. But to date, only one grave has been exhumed and the $7 million budget for the effort has been exhausted. Much of the money intended to fund personnel, equipment, and forensic testing has gone instead toward security costs. Like so many plans laid after the fall of Baghdad, the prosecution of former Iraqi leaders for crimes against humanity has turned out to be more difficult, time-consuming, and expensive than originally anticipated. While Iraqi officials say publicly that they are close to trying accused war criminals such as Hussein and the man nicknamed “Chemical Ali” before a special tribunal, the slow pace of the investigation suggests otherwise. The effort has been hampered by the dangerous environment, budget shortfalls, and credibility problems. There is still no courtroom and no official rules of procedure, and the United Nations has disavowed the tribunal because it includes the death penalty. Next week’s national elections could add a new wrinkle. Some close to the tribunal say they hope the newly elected government will consider eliminating the death penalty and creating more formal roles for non-Iraqis. Doing so could invite greater international assistance and shake off the perception that Americans � not Iraqis � are leading the effort. “I think it’s an opportunity,” says Hanny Megally, director of the Middle East program at the International Center for Transitional Justice and an adviser to the tribunal.”More and more, the Iraqis realize that it’s not good for the image of the court that everybody is seeing it as an entity that is completely dominated by the United States. At the same time, as challenges have arisen, the United States has come to realize that it’s better if it’s an internationalized process and the burden is shared.” The official in charge of U.S. efforts to support the Iraqi war crimes tribunal concedes that more international involvement is needed. “The court has been looking for international assistance from countries for months now,” says Greg Kehoe, a former assistant U.S attorney tapped by the Justice Department to help the Iraqi prosecutions. “There has been no groundswell of support from other countries to assist the Iraqis.” CONTROL ROOM The Iraqi Special Tribunal for Crimes Against Humanity was established by the Coalition Provisional Authority and the Iraqi Governing Council in December 2003 after months of discussions. Unlike the courts created to try war criminals from the former Yugoslavia, Rwanda, or Sierra Leone, the Iraqi tribunal did not seek sponsorship from the United Nations or include formal roles for foreign nationals. Instead, it emphasized Iraqi ownership and control as a necessary step toward unifying the war-torn nation and restoring the rule of law. The Iraqi-run model was pushed by U.S. officials who felt that domestic court proceedings would provide more closure to the Iraqi people than an international tribunal. At a Dec. 15, 2003, press briefing, President George W. Bush stressed that Iraqis would decide how to shape court proceedings against Hussein. “Look, the Iraqis need to be very much involved. . . . They were the people that were brutalized by this man. He murdered them. He gassed them. He tortured them. He had rape rooms. And they need to be very much involved in the process, and we’ll work with the Iraqis to develop a process,” Bush said. But three lawyers with ties to the tribunal effort say that the shift from U.S. leadership to Iraqi control has not come about as quickly as desired. “The tribunal is increasingly perceived as an entity created by the United States, funded by the United States, and run by the United States,” Megally says. “It’s been over a year since the fall of the regime, and people are getting more and more restless.” In April 2004, Attorney General John Ashcroft tapped the 50-year-old Kehoe, a former war crimes prosecutor at the Hague, to head a Justice Department unit providing support to the tribunal from the U.S. Embassy in Baghdad. Kehoe rejects the charge that Americans are leading the prosecutorial effort. “Basically, we are in a support role for the [Iraqi Special Tribunal]. We don’t make decisions for them,” Kehoe says. “We don’t decide who, what, where, or how someone is going to be charged. Those decisions are up to the Iraqis, and we don’t cross that line.” Kehoe’s office, known as the Regime Crimes Liaison Office, currently employs roughly 50 U.S. lawyers and investigators. The staff includes an additional 30 contractors from the Army Corps of Engineers and 25 foreign nationals from Iraq, Holland, Britain, and Australia. The team conducts grave excavations and witness interviews, coordinates security measures, organizes training for members of the Iraqi tribunal, and manages the court’s administrative functions. Many of the challenges confronting the office � the lethal conditions, the lack of international support, and the difficulty in transitioning control to Iraqi nationals � mirror those encountered by U.S. troops in other areas. So far, Kehoe says, the biggest constraint has been the security situation. “Every time I send my staff out the door I worry,” he says. “That being said, you have to go out and do the job on a daily basis. What we have tried to do is focus our investigations in areas where we can operate.” The grave exhumations are particularly risky because teams are forced to remain in one spot. “If you’re going to be on that location for a period of time, someone is going to find out,” Kehoe says. “You try to take all the protective measures that you can.” The notion that U.S. officials are calling the shots for the Iraqi Special Tribunal has been difficult to dispel. The U.S. government put up an initial $75 million to fund the tribunal and controls troves of documentary evidence gathered from government offices and palaces after the invasion. Many of the documents were hastily classified by U.S. intelligence agencies and now cannot be shared with Iraqi investigators until the documents are declassified, a process that lawyers involved in the tribunal say keeps Iraqi investigators sidelined. Valid or not, the perception of heavy U.S. involvement makes it difficult for nations that split with the United States over the invasion of Iraq to now offer aid to the tribunal. “Other governments look at the whole effort and say that is not really our endeavor. It’s the American endeavor,” says George Washington University Law School professor David Scheffer, who was the U.S. ambassador at large for war crimes issues under President Bill Clinton. “The bottom line is that the tribunal has turned out to be too beholden to the occupiers’ influence to attract international support.” Defense attorneys for those accused before the tribunal are likely to play on American involvement to undermine the legitimacy of trials. “We believe that special court is illegal because it was established by the occupation group of the United States � someone who came to Iraq without any rights and changed the laws and destroyed the civilization of the Iraqi people,” says Ziad Al-Magawi, a member of Hussein’s defense team. “This court is born from aggression.” PENALTY BOX So far, U.S. and Iraqi efforts to woo participation from other nations have been unsuccessful, largely because of international opposition to the death penalty. United Nations Secretary-General Kofi Annan has refused to support the tribunal and discouraged U.N. employees from participating in their private capacities. Human rights groups that have been pushing to try Iraqi leaders before an international tribunal since the early 1990s have refused to provide relevant documentation or to assist with grave excavations. Even Britain, America’s closest ally in the Iraq War, distanced itself from the tribunal after the decision was made to include the death penalty. Tom Parker, a British lawyer who spent four years as an investigator at the Hague for the U.N. tribunal for Yugoslavia, ran the Coalition Provisional Authority war crimes investigation unit in 2003. Parker was removed by the British government along with seven other staffers because of its opposition to capital punishment. “The biggest single problem hanging over the Iraq tribunal is the death penalty,” Parker says. “The decision to include the death penalty makes perfect sense from an Iraqi perspective, but it has made it extremely difficult for nongovernmental organizations and European governments to be associated with it.” Indeed, Iraq’s legal system has long relied on capital punishment. Use of the death penalty was suspended during the U.S.-led occupation, but reinstated by interim Prime Minister Iyad Allawi last August. One lawyer involved in the tribunal, who asked to remain unidentified, says that setting up an Iraqi war crimes court that excluded the death penalty would amount to “legal colonialism.” “If the goal really is to build a legitimate justice system and the rule of law, you’ve got to go about that in a way that involves Iraq’s domestic values. You can’t simply transplant it from the outside,” the lawyer says. Parker, who still does some work for the tribunal as a contractor, calls the death penalty conundrum the “Rwandan paradox” � in reference to the international criminal tribunal for Rwanda. At the U.N.-sponsored tribunal located in Tanzania, the maximum penalty for genocide is life in prison. Meanwhile, ordinary criminals tried by Rwanda’s domestic courts may be subject to execution. “That’s clearly absurd, and yet at the same time having the death penalty makes it impossible for many entities to be involved,” Parker adds. “To be honest, I don’t know what the answer is.” Iraqi lawyer Salem Chalabi, who helped draft the statute creating the tribunal, initially favored the death penalty. Now he is among those who believes that the matter should be re-evaluated after Iraq’s Jan. 30 elections. “If the price of bringing internationals in . . . is removal of the death penalty, we should re-examine the death penalty,” he says. “I’m just wondering if we’ll be able to get this done in any meaningful way without international assistance.” Chalabi’s own role in the tribunal has been another sore point with international observers. Chalabi, who graduated from Northwestern University Law School, is the nephew of controversial Iraqi politician Ahmad Chalabi. The younger Chalabi was tapped to head the Iraqi Special Tribunal but resigned in September 2004 after a warrant was issued for his arrest in connection with the murder of Iraq’s former finance minister. Chalabi says the charges were baseless. JUDICIAL SELECTION Twelve former regime members have been targeted to face charges before the tribunal, including Hussein and top aide Ali Hassan al-Majid, known as Chemical Ali for his role in the 1988 chemical weapons attack on Iraqi Kurds. Their cases will be heard by five-judge panels. Foreign nationals are allowed to sit alongside Iraqis as judges, but to date none have been appointed. Roughly 45 trial judges, investigators, and prosecutors � all Iraqi � have been tapped to serve on the tribunal, though their names have not been disclosed due to security concerns. Many of the country’s most experienced judges were barred from participating because they had been members of Hussein’s now outlawed Baath Party. In December, Allawi announced that trials would begin before Iraq’s upcoming elections � a possibility that seemed unlikely even at the time. Indeed, no formal rules of procedure have been issued, and the courthouse where trials will ultimately take place is currently under construction. Allawi’s remarks fueled concerns that the court may be subject to political pressures. “The tribunal seems to have become an instrument for advancing personal political objectives,” says Richard Dicker, director of the international justice program of Human Rights Watch and a vocal critic of the tribunals. “If it’s going to have any legitimacy, it needs to rise above that.” According to Dicker, the fix would be broader international involvement. “Our recommendation was for the establishment of a mixed tribunal, a partnership between Iraqis and internationals who could be named by the U.N. to conduct these trials,” says Dicker. “We thought that would have provided the Iraqis with the assistance they acknowledged they needed to conduct what are very complicated criminal prosecutions.” But Kehoe dismisses the concern raised by Dicker and others that Iraqi jurists with no previous exposure to international criminal law will be unable to handle complicated genocide and war crimes cases without the help of experts from other countries. “Do Iraqi judges have broad experience in international humanitarian law? No. But let me tell you, they are learning it as we speak,” Kehoe says. “Turn back to the beginning of [the International Criminal Tribunal for the former Yugoslavia]; those judges didn’t have much experience in international humanitarian law either.” Case Western University law professor Michael Scharf was initially skeptical of the Iraqi-run court, but changed his mind after participating in a training conference for the Iraqi judges in October 2004. He says those selected to be judges are committed to putting on trials that will meet international scrutiny. “What I was worried about was, Could they be fair? I really prodded them throughout the week to see if they were prejudiced or had preformed opinions,” Scharf says. “I believe at the end of the day they will bend over backward to show the world that these are legitimate proceedings.” Reach Vanessa Blum at [email protected].

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