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Stakes are high on handling, outcome of a trial

PARIS - For the world, the trial of Saddam Hussein will be the biggest human-rights case since Nuremberg.

 

For Iraq and its neighbors, it will be a critical test of whether the rule of law can supplant the rule of force in the Middle East.

And for the United States, it could be the moment when the legitimacy of a globally unpopular war is either vindicated or permanently discredited.

Yesterday, while members of the Iraqi Governing Council began preparing for a national human rights tribunal under a statute they passed last Wednesday, the commander of the US forces who captured Hussein sounded a cautionary note. When -- and perhaps whether -- Hussein is turned over to the Governing Council "has not been determined," said Lieutenant General Ricardo Sanchez.

While most specialists in international affairs believed that Hussein would ultimately be tried at least in part by Iraqis, they said Sanchez was right to proceed with some caution because a hastily established tribunal could lead to problems. Any tribunal must be fair to Hussein without being open-ended. It must be open for the world to see without giving him a license to inveigh endlessly against his enemies on live television.

"What struck me the most watching TV was that they were using `The End of Saddam Hussein' as the logo," said Harold Koh, dean of Yale Law School and former assistant secretary of state for human rights. "I don't think it's the end. It's the beginning of the end. But the way in which the end is carried out through these justice procedures is going to determine how legitimate the Iraq exercise will be viewed in the eyes of the world."

With such enormous stakes riding on how the trial goes, international specialists began warning within hours of Hussein's arrest that the Iraqis may not have the capacity to fairly and effectively carry out a hugely complex trial of genocide, war crimes, and crimes against humanity that may last for years. Until now, trials in Iraq have lasted only a few days at most, said Kenneth Roth, Human Rights Watch director, in a statement.

"To try Saddam competently will require hundreds of millions of dollars," said David Scheffer, international law professor at Georgetown University, who was ambassador at large for war crimes under President Clinton. "One of the great difficulties now is how the Iraqis will receive the kind of international expertise and financial assistance they will need for the task."

Complicating any potential offer of European support, however, specialists said, will be whether the Governing Council decides that Hussein will face the possibility of the death penalty -- an anathema among European jurisprudence that is also outlawed in international tribunals. But it is common in the Middle East.

In an interview in Baghdad last week, the deputy to council member Ibrahim Al-Jafari said the council would push for the death sentence against Hussein and his aides. "They deserve the death penalty," said Adnan Al-Asadi. "The old regime killed thousands of people."

Still, some specialists held out hope that Hussein might be tried by an ad hoc war crimes tribunal set up by the United Nations Security Council, such as those established for Rwanda, Sierra Leone, and the former Yugoslavia. But the Bush administration has for months voiced its opposition to a permanent new international court and is unlikely to return to the UN, where its plans for war against Iraq met such resistance last year.

"You could not disrespect the act of the Interim Governing Council's setting up a serious tribunal last week," said Ruth Wedgwood, an international law professor at Johns Hopkins University. "But even if you were deciding from scratch what to do with him, because of all the noise and dysfunction of Security Council politics, I can't imagine going back to them. . . . We've been there and done that one too many times."

Nevertheless, other nations may play a major role in the trial even if it is overseen by Iraqis, she noted. The statute that established the Governing Council's tribunal requires the presence of international specialists to assist in the case. It also allows, but does not require, the Governing Council to appoint some non-Iraqis to the five-judge panel that would try Hussein and his top aides.

A charge of genocide would center on the mass murders of at least 100,000 Kurdish civilians in northern Iraq during massacres in the late 1980s and thousands of Shi'ites and Marsh Arabs in southern Iraq in 1991, when Hussein's government suppressed a rebellion immediately after his defeat in the first Gulf War.

Crimes against humanity would include evidence of systematic torture and mass killings as part of his regime's daily abuses of the population. War crimes could include the use of chemical weapons against Iran, the use of civilians as human shields, the execution of prisoners of war, and -- in the most recent conflict -- the sending of combatants dressed as civilians.

The week-old Iraqi tribunal statute includes some unusual potential charges, including squandering the natural resources and assets of the Iraqi people -- raising the possibility the former dictator's lavish palaces could become further evidence against him. Also included in Iraq's week-old law is a lesser charge of using the military against another Arab country -- a clear reference to Hussein's 1990 invasion of Kuwait.

To convict Hussein, prosecutors would have to prove either that he directly ordered the atrocities or that he had "command responsibility" for the soldiers that carried them out, and so he either knew or should have known what was happening.

"That should not be that difficult to prove, because clearly everything in Iraq began and ended with Saddam," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "But you still have to prove it. You can't just make the assertion. If these are going to be fair trials -- and that remains to be seen -- they are going to have to show these things beyond a reasonable doubt with witnesses and documents and concrete evidence."

Walt reported from Paris and Savage from Washington.

Saddam Hussein Saddam Hussein after his capture by US forces. (Reuters Photo)
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