Iraq Judiciary and the Saddam Hussein Trial
Intense preparations for Saddam Hussein's trial began shortly after his capture. There are intense demands on judges and lawyers to conduct that tribunal fairly as international observers continue to assess Iraq's progress toward a modern democracy.
LINDA WERTHEIMER, host:
When Saddam Hussein was captured in December of 2003, President Bush said justice would prevail.
President GEORGE W. BUSH: He was found near a farmhouse outside the city of Tikrit in a swift raid conducted without casualties. And now the former dictator of Iraq will face the justice he denied to millions.
WERTHEIMER: Intense preparations for his trial began shortly after his capture. The US-led Coalition Provisional Authority set up a tribunal to investigate and bring charges against Saddam and it was decided that Iraqi jurists, not international judges, would try their former leader. President Bush.
Pres. BUSH: Iraqi citizens need to be very much involved in the development of a system that brings him to justice and there needs to be a public trial and all the atrocities need to come out and justice needs to be delivered, and I'm confident it will be done in a fair way.
WERTHEIMER: In this segment, we're going to look at Iraq's judiciary and we'll examine how political maneuvering within the new government could trip up the country's biggest case.
Mr. MARK ELLIS (Executive Director, International Bar Association): This trial is exceedingly important for Iraq because it's an opportunity to show the international community that it has a conceptual understanding of what the rule of law's about.
WERTHEIMER: Mark Ellis is executive director of the International Bar Association based in London. His group has been training Iraqi judges, prosecutors and defense attorneys on legal and procedural issues, but Ellis says the Iraqi judges have a long way to go.
Mr. ELLIS: These judges, although very qualified judges, none of them have had any experience dealing with crimes of genocide, crimes against humanity, war crimes, and this substantive area of law is complicated in and of itself. I think there's already been some missteps when Saddam Hussein was first brought before the court. He appeared without any representation, and, in fact, he was permitted to express his thoughts and opinions that--an attorney would never have permitted that to occur.
WERTHEIMER: Why did that happen?
Mr. ELLIS: My opinion is there is a great deal of pressure now to move these trials forward and there is some political interference that's occurring. You have what should be an independent tribunal and that tribunal should make decisions based on what is necessary to obtain justice. And then you have a political side, the government, that for their own reasons is eager to see these trials move forward. And so that can be very dangerous. And if this tribunal is not ready, then it will fail.
Ms. JUDITH YAPHE (Senior Fellow, National Defense University): I don't think we should be surprised that Iraq is any more or less political than any other fledgling or old-time democracy.
WERTHEIMER: Judith Yaphe is a senior fellow at the National Defense University and a former political analyst at the CIA. She says Saddam Hussein's trial has been caught up in political moves to rid the tribunal of anyone associated with the former regime.
Ms. YAPHE: The leading judge in Saddam's trial is one of the most experienced of their judges. He was also a Baathist when Saddam's regime was there. He's become a target of those who want to impose extreme de-Baathification.
WERTHEIMER: But isn't it a fact that most of the experienced jurists in Iraq are or were Baathists?
Ms. YAPHE: Of course. It was required as part of getting a job, having security, getting an education. The charges--and I think it is very important to look at who is charging this judge with sins of Baathism, and that comes from Ahmed Chalabi, who is currently a deputy prime minister, a long-time opponent of Saddam, and also was, and probably still has, friends within our own government, but who also has formed close ties with Moqtada al-Sadr, the leading Shia opponent to US' presence in Iraq and this judge signed a warrant for his arrest because he is implicated in the murder of a very senior Iraqi Shia cleric in April of 2003.
WERTHEIMER: What does Ahmed Chalabi stand to gain here? What's the reason that he is making common cause with Moqtada al-Sadr?
Ms. YAPHE: He has made alliances because he's trying to build a political power base to project him into a senior leadership position. He didn't have a power base before Saddam fell. I don't think he does now, but he has collected a lot of political IOUs.
WERTHEIMER: Do you think that what Chalabi is doing is going to disrupt a trial? And what would be the political effect of disrupting a trial, which does, after all, have considerable support inside Iraq?
Ms. YAPHE: I don't think he's doing it so much to disrupt the trial as to gain some credit for being purer than the driven snow. If Saddam is tried and executed, will everything be fine? No. Will it affect the insurgencies? Not really. If he's not, I think there could be a backlash. That is a risk that I don't think any of them could really survive politically, and I think they understand that this would be a sign that the government was ineffective in dealing with after all its--one of the most important issues it has to resolve before it moves ahead into a new Iraqi future.
WERTHEIMER: If the trial of Saddam Hussein goes forward, does that set the stage for an independent judiciary?
Ms. YAPHE: Yes, it does. The problem is this: security. Judges, lawyers, people cooperating with the new system, it would be a disaster to see them intimidated by violence, which I think there is a great threat of.
WERTHEIMER: Judith Yaphe of the National Defense University.
Iraqi officials claim Saddam Hussein's trial is expected to begin in September. Mark Ellis says the world will be watching.
Mr. ELLIS: The international community will, I think rightfully so, demand that the trials are fair. And if Iraq does not get it right, then I think it will have very serious ramifications. If they do get it right, then that will be good for Iraqis and it will help in bringing further support I think from the international community for building up Iraqis' judicial system.
WERTHEIMER: But Ellis says there is a potential obstacle to full international backing--the death penalty.
Mr. ELLIS: As long as Iraq maintains the death penalty, certainly Europe has taken a very clear step back from supporting any type of programs, and even the UN had very little engagement with the tribunal because of that issue. So that will have to be dealt with before we get the type of support that I think we need to create this foundation of judicial independence.
WERTHEIMER: And if Iraq is able to get beyond the trial of Saddam Hussein, more legal hurdles lie ahead. Officials will have to decide how to handle the cases against other members of Saddam's regime and what to do with thousands of detainees in the country. And it will be necessary to clarify the relationship of Iraq's judiciary to other parts of the government. Lots of legal questions remain for Iraq's emerging judiciary in a land whose people traced their roots back to Babylon's Hammurabi, the inventor of the first code of law.
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