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For two weeks last August, the Iraqi judges were shuttled between a plush London hotel near Buckingham Palace and the top floor of a conference center with a distracting penthouse view of Westminster Abbey and the city skyline. They had been tasked with one of the most formidable assignments any jurist could ever face: trying a tyrant. A few months before the trial of Saddam Hussein was to begin, they were getting a crash course in international criminal law. It was just one stop on a long circuit that took the nearly two dozen judges to Dubai, Sicily, the Hague, and back to Baghdad for a series of training sessions cobbled together by the U.S. government — and anybody else who was willing to help. There was hardly a legion of volunteers. Human rights organizations and much of the international community believed the Supreme Iraqi Criminal Tribunal, which was originally established by the U.S.-installed Iraqi Governing Council and which is funded largely through American assistance, fell short of international legal standards for war-crimes courts. And as the judges would soon find out, the standards of international law that they had been taught did not necessarily carry weight in their home country. In Iraq, justice for a former dictator might instead mean summary execution, not a fair trial as envisioned by Western legal scholars. “In Iraq how do you define ‘justice’ now?” says one Iraqi who is observing the trial from the courtroom in Baghdad. “This word has many definitions in Iraq.” Since the opening of the trial in October, the challenge facing the judges has been Sisyphean. In an unstable and often violent environment, they must bring Saddam to justice, provide closure for Iraqi victims, placate international critics, and set the foundation for a fair judiciary. “They have little room to maneuver in terms of being allowed to make mistakes and learn from them,” says Hanny Megally, director of the International Center for Transitional Justice’s Middle East and North Africa program. “There are big question marks about whether they will be able to convince Iraqis and the international community that they can do it.”
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The trial is presided over by Judge Rizgar Mohammed Amin, a 1980 graduate of Baghdad University who first worked as a law school teacher in his hometown and then became a judge in the region’s courts. An ethnic Kurd from the northern city of Sulaymaniyah, Amin has impressed observers with his efficiency and even-tempered demeanor. “Under the circumstances, this is nearly an impossible job to do perfectly,” says Mark Ellis, president of the International Bar Association, which held some of the training sessions, including the one in London in August. “They have probably done a fairly good job, but it’s too early to make final judgment on whether this process can meet international standards of fairness.” Amin and the four other judges presiding over the trial are attempting a delicate balancing act: Rein in Saddam enough so that witnesses are protected and the proceedings are orderly, but still preserve the former dictator’s rights in court. It hasn’t been easy. Often it seems as if Saddam and other defendants have taken center stage in a proceeding that is still struggling to find solid footing. Some of those who trained the judges say the trial at times may appear to veer out of control. But they expect the judges will develop methods — possibly including removing Saddam and his aides from the courtroom altogether and giving them remote access to the proceedings — to control the sometimes imperious and petulant defendants. SENTENCING SADDAM The judges are attempting to put flesh on the bones of the Iraqi statute that created their court, a law written largely by U.S. government lawyers and Iraqi expatriates. The law subsequently went through multiple revisions before the Iraqi Transitional National Assembly approved it, in August. Pierre-Richard Prosper was part of the advance guard of U.S. officials who held the first strategy sessions with Iraqis on how to try the former dictator. As American ambassador at large for war-crimes issues, Prosper traveled to Iraq in the late summer of 2003. It might have seemed an early juncture to begin planning for the tribunal — Saddam, after all, wouldn’t be captured for many more months — but Iraqis were celebrating the former dictator’s downfall in the streets, and the opportunity to give him a speedy trial seemed possible. That hasn’t happened, but defenders of those initial plans say they could not have anticipated the chaos that erupted in Iraq in the months and years before the trial actually began. Prosper, a former prosecutor for the International Criminal Tribunal for Rwanda, is irritated by the lack of international support for the tribunal. “There are only a couple of countries in there working hard with Iraqis — the U.S., Australia, and nongovernmental British citizens,” he says. To Prosper, the unwillingness of the United Nations to help train the Iraqi jurists and its continued criticisms of the tribunal smack of circular logic. The world body pulled out of a 2004 training session for the judges just days before it was to begin, based on its opposition to the death penalty. “They would say, ‘We don’t think the process will meet international standards,’ ” he says. “ We would go back to them and say, ‘That’s the whole purpose of this, to train the judges so they can meet international standards.’ “ In the absence of international cooperation, the nearly $130 million American assistance effort took a pragmatic approach to building the tribunal. Critics said it was a sloppy rush toward “victor’s justice,” but those who participated say they were simply giving Iraqis the opportunity to put their scarred past behind them. “We did everything, from soup to nuts,” says Gregory Kehoe, a Tampa lawyer who spent a year heading up a Baghdad office composed of U.S. Department of Justice and Department of Defense staffers who advised on prosecuting crimes of the Saddam regime. The office’s mandate was broad, ranging from assisting in exhumations of mass graves to building a fortified courthouse in the Green Zone. The office also had a hand in coordinating the education of Iraqi judges, which Kehoe acknowledges happened in a scattered fashion but one that was adequate. And Kehoe is confident that the court will ultimately come up with a method to prevent Saddam from being a disruption in court. (Although an American observer present at the trial says that when Saddam’s microphone is turned off, the courtroom is so small he can be heard anyway.) “This is the first trial. The procedures are being worked out,” he says. “They will smooth themselves out as the trial progresses.” But the Iraqi public may not have much patience. The perceived lack of control in the courtroom has displeased many Muslim Shiites, who were the targets of the killings in the small town of Dujail for which Saddam is now standing trial. “They think the judge is weak — not tough enough to try Hussein,” says the Iraqi observer. “Amin should kick him out, tell him to shut up. These people think justice is him being executed as soon as possible. I cannot say this is revenge for them; this is justice.” DISORDER IN THE COURT In the midst of harrowing testimony on Dec. 5 from Ahmad Hassan about electric-shock torture and babies left to die in prison courtyards, Saddam laughed and mocked the witness, suggesting that he needed psychiatric treatment. It was the kind of outburst international law expert Michael Scharf had wanted to help the judges prepare for. “I was always concerned that they would fall back to doing things the way they were used to,” says Scharf, a law professor at Case Western Reserve University who led training sessions for Iraqi judges that the Regime Crimes Liaison Office held in October 2004. The exchange and others like them are more than simply disturbing anecdotes. They underscore structural tensions between the expectations of Western observers and the way Iraqi judges are accustomed to conducting trials. In Iraqi courts, for example, defendants are permitted to directly question witnesses, and Saddam and other defendants have spoken directly to witnesses, sometimes badgering them aggressively. “It’s up to the judges to determine how far they want to go with that,” says the International Bar Association’s Ellis. “I felt that was over the boundaries, and I think the judges saw that as well.” The court is using a blend of international legal standards and Iraqi criminal law in an attempt to convict Saddam and seven co-defendants of government atrocities allegedly committed between 1968, when Saddam’s Ba’ath Party seized power, and May 1, 2003, when President George W. Bush proclaimed major combat operations in Iraq over. If convicted, the defendants could face death by hanging. The first trial, presided over by Amin and four other judges, who are not shown in the televised proceedings, focuses on the massacre of 148 Shiite Muslims in 1982 in retaliation for an assassination attempt against Saddam. This particular crime was chosen from among the range of Saddam’s alleged atrocities because of the former dictator’s direct involvement and the availability of convincing evidence, including videotapes, connecting him to the crime. At the October 2004 training session the judges discussed the lessons learned from the trial of former Yugoslav dictator Slobodan Milosevic, who has represented himself for the past four years before a U.N. tribunal in the Hague. Among international legal scholars, Milosevic’s trial is seen as a cautionary tale. Milosevic’s combative antics and manipulation of the court proceedings, along with the breadth of charges, have made for a lengthy and unwieldy case. Scharf’s group, which included Amin, agreed that in the Iraqi tribunal it was important for the defendants to stay silent when witnesses were testifying. “Judge Amin seems to have ignored much of the advice given during that session,” says Scharf. Despite that criticism, Scharf is quick to otherwise defend Amin, saying that he is technically following Iraqi law and “conducting the trial in accordance with the customary practice of the system under which he has worked for 30 years.” The televised trial is watched closely by Iraqis, and both critics and supporters of the tribunal agree that if the roots of an impartial justice system are to be established, the tribunal needs to actively consider the impressions of the Iraqi public. “They are facing an audience that doesn’t know how this is supposed to work,” says Miranda Sissons, who traveled to Iraq twice to observe trial sessions for the International Center for Transitional Justice. Human rights groups have been outspoken in their criticism of the tribunal. They argue that its susceptibility to political pressure, both from within Iraq and from the United States, casts doubt on its independence. Also of concern are what they say are inadequate safeguards for defendants, witnesses, and lawyers. These fears were realized when two of the defense lawyers were murdered this fall and a third fled the country for his safety. HOME-COURT ADVANTAGE Within the community of lawyers who have made careers of helping to bring war criminals to justice in places such as Rwanda, East Timor, and Sierra Leone, there has been a push to try perpetrators of mass crimes in the countries where the atrocities occurred. “The development of international law continues to move toward a focus on domestic jurisdiction,” says Ellis. “But in this situation it still comes down to whether Iraq has the capacity to undertake this type of trial.” Ellis coordinated the London training sessions at the request of British, Australian, and U.S. authorities, but he says his group had little contact with government personnel. He lauds the judges for their dedication and what he says is a desire for fairness. But like many observers, he worries about the security risks the court faces, the apparent dearth of international advisers, and access to relevant international precedents translated into Arabic. “I was under no illusion by providing a couple weeks training program that they will magically appear with full expertise and knowledge in this area,” Ellis says. “Would it have been better to have substantially more training? Absolutely.” For Amin, it remains a week-to-week struggle to establish his authority — and not over Saddam alone. Saddam’s brother-in-law Barzan Ibrahim Al Tikriti has repeatedly harangued witnesses and once pointedly asked Amin, “Why don’t you just execute us now?” Observers say, though, that Amin has grown somewhat in his assertiveness. If Saddam’s absences from court continue, the dynamic of the trial could change. But if the tribunal continues to devolve into shouting matches and rambling proceedings, who should be held responsible: the Iraqi judges or those who put them in this position? “Few judges around the world would know how to handle this,” says Tom Parker, who served as head of the Coalition Provisional Authority’s war crimes investigation unit. “People are holding Iraqis up to an unfair bar. They are too hung up on the potential damage of a less-than-perfect trial. But if it doesn’t end up being perfect, there’s enough blame to go around for everybody. Everybody has done less than they could have.”

Lily Henning can be contacted at [email protected].

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