Does Human Rights Watch want Saddam Hussein to be prosecuted?
Absolutely. And not only Saddam Hussein—other senior members of the Ba’ath Party as well. Human Rights Watch spent many years documenting the crimes of Saddam Hussein’s regime. We have called repeatedly over the years for the perpetrators of the massive crimes in Iraq, including genocide, crimes against humanity, and war crimes, to be prosecuted. These trials are important not only because their success will influence the future shape of justice in Iraq, but also because this may be the only form of justice that the victims of Saddam Hussein’s regime are likely to have. Given the sheer scale of the atrocities, many relatives of victims may never get answers, may never find the remains of their loved ones. This trial could be the only kind of closure they receive.
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Most of the potential defendants who are now in custody still need to be brought before a judge and formally charged with a crime, and a good deal of evidence still needs to be gathered. It’s unlikely that any trials can begin in the near future.
On April 8, 2003, the U.S. government announced that it wanted an “Iraq-led process” to conduct these trials. In fact, U.S. advisors have dominated the work of the tribunal from the very beginning.
The Iraqi Governing Council established the Iraqi Special Tribunal in December 2003. The tribunal’s general director began to appoint judges and prosecutors in the spring of 2004. For security reasons, these tribunal personnel have not been publicly identified and some have withdrawn, leaving the tribunal without its full complement of judicial experts. All of these judicial experts must be in place in order for the tribunal president to be elected, for the rules of evidence and procedure to be finalized, and for the work of the tribunal to get underway.
Of the dozens of potential defendants, only 12 have been brought before a judge so far – by the Central Criminal Court of Iraq instead of the Iraqi Special Tribunal. As a result, the defendants have been charged only for crimes that are punishable under Iraq’s penal code. That is why Saddam Hussein has not yet been charged for international crimes such as genocide.
Much evidence has been lost. Coalition forces failed to protect mass grave sites and government ministries that housed important state archives. Looting, and the digging up of mass graves by families desperate for evidence of relatives who “disappeared” under the Ba’athist regime, have destroyed or tainted a great deal of material that would have been critical to prosecutions.
In early July, tribunal officials opened offices in northern Iraq to attract potential witnesses. But due to security considerations, they postponed plans to open similar offices in other parts of Iraq.
Will the trials be fair?
The statute for the tribunal contains a number of fair-trial protections. At the same time, certain basic guarantees for the rights of the accused are missing. These include: the lack of access to defense attorneys in the early stages of investigation; the lack of requiring proof beyond a reasonable doubt in order to convict; and the possible admission of statements extracted through torture and other forms of coercion. The statute and its rules also do not adequately address the issue of witness protection and security for tribunal personnel.
The statute does not require that judges have experience that is relevant to the kinds of trials they’ll be handling. That is why Human Rights Watch initially proposed a mixed international-national tribunal, in which international prosecutors and judges could assist their Iraqi counterparts in conducting these complex trials. There’s no question about whether Iraqi jurists have the commitment and desire to see justice done. But there’s a real question about whether the Iraqi Special Tribunal has the necessary expertise.
Is Human Rights Watch cooperating with the tribunal?
Long before the U.S.-led invasion of Iraq, Human Rights Watch consulted with the United States and other governments about the options for prosecuting Iraqi leaders associated with major crimes. In July 2003, we presented proposals to members of the Iraqi Governing Council regarding the kind of tribunal that would be best equipped to handle these trials. We also spoke with officials of the Coalition Provisional Authority and the United Nations about how to structure the tribunal and how to gather and preserve key evidence. We made repeated requests to give our expert comment on drafts of the tribunal statute, but Iraqi and Coalition Provisional Authority officials turned us down.
Once the tribunal statute was issued publicly, we submitted a detailed commentary to the Iraqi Governing Council with recommendations for amendments to ensure fair trials. We asked for and did receive a chance to comment on the draft rules of procedure and evidence.
Several international tribunals have been established to prosecute serious crimes such as genocide and crimes against humanity. Those tribunals have eagerly sought the advice and commentary of Human Rights Watch and other experts. Our experience with the Iraqi Special Tribunal has been dramatically different.
Human Rights Watch is not assisting the Iraqi Special Tribunal in the way that we have helped international tribunals, because of our serious reservations about the standards for due process and a fair trial. In addition, we oppose the death penalty in all circumstances as a punishment unique in its cruelty and invariably carried out in an arbitrary manner.
The testimonies that we collected in 1992 have been openly published and remain in the public domain. We have not and will not turn over the names of individuals we have interviewed, to the tribunal or to any other government authority. In order to safeguard the victims of serious crimes, Human Rights Watch does not release the names of individuals who speak with us confidentially.
Human Rights Watch is following the tribunal’s work closely and will be commenting constructively on the trials as they get underway. We want the trials of Saddam Hussein and his cohorts to succeed, not fail.
