October 2, 2005

Saddam’s Trial: Justice Before Retribution

One of the most crucial (and sadly, under publicized) events of the century is set to begin in just under three weeks. On October 19th, Saddam Hussein will stand trial for murder in the 1982 slaying of 148 Shia Muslims in Dujail. This is a mere fraction of the actual carnage and trauma Hussein carried out during his nearly quarter-century reign, but a trial of this magnitude is an enormous first step towards stability for such a fragile and volatile country. (And just the first of many planned hearings in the Iraqi war crimes tribunal.) While many people around the world are heralding the trial as a first step towards bringing a tyrant to justice, I cannot help but wonder whether justice would be better served by pushing the trial back a bit.

Saddam’s attorney, Khalil Dulaimi, recently submitted a motion to delay the trial on the grounds that the prosecution has had an unfair time advantage for trial preparation. Several other reasons were cited in the motion, including limited access to Saddam and recent defense personnel changes. The exact date that charges were filed against Saddam is a bit hazy; however, all members of the defense team received the prosecution’s case files by August 10th, which nullifies the claim of insufficient time (the standard trial time lapse rule in Iraq is a minimum of 45 days between filing charges and the start of the trial. This rule also applies to proper prosecutorial disclosure to the defense). This leads to an important question: Whether or not the charges were filed a minimum of 45 days out from trial, can Saddam’s legal team provide the best possible defense within this relatively short amount of time (as opposed to the nearly two and a half years Dulaimi claims the prosecution has been developing its case)? And even more crucial, would it be fair to deny the defense’s motion for continuance?

I understand the urgency to want to try, convict, and (perhaps) put to death Saddam for his crimes; however, the reasonable and fair thing to do is to grant a continuance for the defense. However furious and bloodthirsty Saddam’s victims are, the Iraqi courts need to retain the impartiality crucial to proper judicial procedure. Hanging him tomorrow will bring his victims’ families no greater sense of revenge or closure than hanging him in three or even six months. Despite the vile nature of Saddam’s crimes, adherence to procedure, rather than emotion, will allow justice to prevail. Hasty justice is not swift justice, and is actually not justice at all.

Why the push for such a speedy trial? The haste with which this trial has been initiated is due largely to four things: 1.) international pressure to bring Saddam to justice, 2.) Shiite Muslims and Kurds now leading the historically Sunni-dominated government. (This is not as simple a turnover as passing the Congressional torch from Republican to Democrat; the Baath party, made up of mostly minority Sunni Muslims, terrorized and murdered countless groups under Saddam, including both the Shiites and Kurds. Let us not underestimate the awesome power of memory and revenge), 3.) many of the actors involved are doing so at great personal risk. Raid Juhi, the chief investigating judge, receives constant death threats from pro-Saddam insurgents. The sooner the trial is over, the sooner the court officers can focus on other important, less life-threatening work, and 4.) recent history has proven that crimes against humanity tribunals can take too long and momentum can collapse. (Slobodan Milošević’s trial is moving forward at an excruciatingly slow pace.)

Despite the legitimate reasons for starting the trial as scheduled, it is in all of the parties’ best interests to wait. A delayed trial will still underscore the determination of the Iraqi people to bring justice to their former ruler, while at the same time alleviate any potential conflicts of interest in regards to the change in leadership. October 15th is the scheduled constitutional referendum and December 15th kicks off Iraqi elections. While I am not attempting to diminish the valid hatred that the new coalition government’s members have for the former Baath party and its leader, nor accuse them of using their power for revenge, a swift trial and conviction are definitely strong campaign props. Ensuring the Iraqi people justice is one of the new government’s top priorities. Doing so before the December elections would seem to be a political blessing, but one that could actually jeopardize the government’s credibility (as well as the court’s). Pushing the proceedings against Saddam until after elections will demonstrate the government’s interest in justice, rather than in speedy revenge.

As for the personal safety of those involved, the brave officers and administrators of the court knew well before the trial date was set that this is a noble, and therefore dangerous, assignment. I do not take lightly threats against their lives and families, and Iraqi as well as Allied Forces are providing the best possible security and protection for the court officers, but there is neither victory nor justice without struggle. In regards to past tribunals, no one can predict how Saddam’s trial will play out, but pushing forward with no regard for process or equity is almost more damaging than slow and painful deliberation.

I have no sympathy for Saddam; however, he is entitled to a fair trial. What could be a more fitting fate for the former dictator than to be tried and convicted in the fair and equitable manner that he so brutally opposed during his reign? This should also be seen as a great opportunity for the Iraqi government to demonstrate its fortitude; even amidst political, social and physical instability, the interim government can demonstrate legal competence, the ability to handle its own affairs, and its commitment to improving the country for all of its citizens.

Of course, the United States stands to gain something from a fair trial as well. We already know that many of Bush’s justifications for invading Iraq were false. Weapons of Mass Destruction? No. Iraqi links to Al Qaeda? Well, there are now. Saddam’s atrocities against his own people? This is the only one that still stands. Through this trial, the Bush administration has the ability to make good on ONE of its primary claims about Iraq. Delaying Saddam’s trial to allow the defense proper preparation time will aid the prosecution (tutored by Allied Forces legal experts), the national legal system, and the Iraqi citizens far more than it will the defense, while conversely, denying the motion hurts the defense less than it does the other stakeholders (including the U.S., who can only benefit from a healthier, more equitable Iraqi infrastructure since the sooner the Iraqi people and government can truly fend for themselves, the sooner we can get out of there).

Few people in the world would deny that Saddam should be punished for his atrocities against humanity, but the international community deserves greater satisfaction than a hasty, inadequate pretense at justice. Granting the defense’s motion for a continuance not only demonstrates a sophisticated and mature sense of judicial discretion, it will provide the world with a greater sense of justice. Those who believe he is innocent will have less ground for complaint or appeal, and those who believe he is guilty will still get to see Saddam at trial. Both sides will benefit from a definite strengthening of the legal system.

In his most recent VOR piece, J.S. asserted “I will always put my faith in humanity above all else.” Whether or not you subscribe to this philosophy, it’s a potent reminder of how much power people have to secure justice under the laws we have written (but only if they are exercised without prejudice). If we value trials as merely an administrative means to a punitive end, then the trial date means nothing. The tribunal could declare the date reset for tomorrow and the verdict would probably be the same. But court hearings are inherently much more important and complex than trying a criminal and sentencing him or her to death. Trials re-legitimate and reaffirm our commitment to a process that above all else (at least in theory) views each human member of society as equal and worthy of equal protection under society’s laws. Treating the legal process as a necessary and valuable part of society, which includes allowing both sides of the courtroom reasonable time to prepare cases, is crucial to ensuring that everyone gets a fair trial. Even Saddam Hussein.

Stephanie Kline is an environmental policy graduate student at the Monterey Institute of International Studies in Monterey, CA.

Jason Scorse