One thing is now certain -- the judicial body that will try Saddam Hussein will be an Iraqi one and not an international tribunal. The tribunal will assert jurisdiction not only over such criminal law felonies as murder and torture, but also over genocide, crimes against humanity, and war crimes. According to a recent Associated Press report, the tribunal will rely on "a mix of Iraqi criminal law, international regulations such as the Geneva Convention, and the experience of entities such as the Rwanda war crimes tribunal."
More than three-quarters (83%) of Iraqi adults interviewed by Gallup in late March and early April* said they agree with the Iraqi Governing Council's decision that Saddam Hussein "will be tried by Iraqi judges on charges he committed crimes against Iraqis." Only 8% disagree, and just 18% disagree even in the heavily Sunni areas of north central Iraq. Not surprisingly, 96% of Iraq's ethnic Kurds and 95% of residents of the country's strongly Shiite areas agree with the decision to bring Hussein to trial before an Iraqi court.
The selection of both the tribunal's judges and prosecutors has been assisted by Salem Chalabi, who is to serve as its Director General. Chalabi's appointment has drawn criticism, given that he is the nephew of Ahmed Chalabi, the controversial leader of the Iraqi National Congress.
Do Iraqis Expect Hussein to Get a Fair Trial?
A majority of Iraqis (56%) say that if Hussein is tried by an Iraqi court on charges of ordering the murder of Iraqi civilians, they believe the trial will be conducted in a fair and impartial manner; roughly a quarter (23%) believe otherwise, with the remainder unsure.
The 23% who do not expect a fair trial are sharply split as to why they expect this to be the case. One faction -- 7% of Iraqis -- thinks Hussein may be found guilty despite being innocent. But a significantly larger group -- 14% of Iraqis -- fears that such a trial may result in acquittal despite Hussein's guilt.
Iraqi Expectations of Hussein Trial's Imminence
In late April, Salem Chalabi was interviewed by National Public Radio (NPR) and asked if he could estimate when Hussein's trial might begin. "No, I can't," Chalabi replied. "I imagine it will take us several months to get to the level of indicting some people. The indictment of somebody like Saddam, which is a bit more complicated, may take a longer period."
Only 9% of Iraqis expect the trial to be delayed until next year, while nearly a third (30%) think it will commence even before the handover of sovereignty on June 30. Twenty-seven percent think it will begin before the end of the year, but after the June 30 transfer of power. A few (7%) express the view that Hussein will never be brought to trial at all -- an opinion more likely to be expressed by residents of the country's most heavily Shiite areas (10%) than by those living in strongly Sunni regions (4%).
Notwithstanding these expectations, the trial of Hussein himself scarcely appears imminent. Scores of low- and mid-level suspects are likely to be tried first by multiple five-judge tribunals -- an approach that may strengthen the prosecutors' hands in subsequent cases brought against those higher up the chain of command.
There is an overwhelming compilation of documents that must be gone through in order to construct a compelling evidentiary case for Hussein's personal culpability -- "If you stand bits of paper up, the coalition has something like 8 ½ miles worth of documents. And then the various Iraqi political parties and Iraqi human rights organizations have another maybe 20 to 30 tons of documents," Salem Chalabi told NPR.
Concern has also been expressed that Hussein may adopt an approach similar to that employed by Slobodan Milosevic at his war crimes trial in the Hague -- using the trial as a public forum to charge his own accusers with both hypocrisy and complicity. For example, Hussein could argue that his eight-year war with Iran was explicitly supported by the West, through massive official lending, the sale of high-tech weaponry, diplomatic encouragement, and even (according to The Wars Against Saddam, by the BBC's John Simpson) the provision of detailed satellite imagery of Iranian troop movements. Jacques Verges, who said he has been asked to represent Hussein, also advised Milosevic, and has reportedly said that he plans to call U.S. Defense Secretary Donald Rumsfeld as a witness in Hussein's defense.
Should Hussein Be Held as a Prisoner of War or as a Common Criminal?
Seventy-five percent of Iraqis believe that Hussein should have "the same status as any other person being held awaiting trial on criminal charges," rather than his current status as a prisoner of war (9%). An additional 5% volunteer the opinion that Hussein should not be held at all.
One advantage to Hussein being held as an "enemy prisoner of war" is that such status facilitates charges of crimes against humanity, which under the Geneva Convention can be tried either by an occupying power or before an international tribunal. However, the post-June 30 Iraqi tribunal will be neither, so it is unclear whether prosecution along these lines will be brought under the terms of that convention. In any event, Hussein's prisoner status is likely to change once he is transferred to the custody of Iraqi officials after June 30.
Next week, part II on Hussein's impending trial:
- Is he guilty or innocent -- and of what specific crimes?
- If guilty, what sentence is appropriate?
