Tribunal for a Hussein trial criticized

The statute passed last week by the Iraqi Governing Council includes a presumption of innocence, the right to remain silent, the power to question witnesses, and a guarantee of a speedy trial. The rules call for 20 investigative judges to gather evidence, a prosecutor who will present charges to a five-judge tribunal, and a nine-judge appeals panel.

But international law specialists warned yesterday that the 7,300-word document establishing the "Iraqi Special Tribunal for Crimes Against Humanity" contains critical holes that could undermine the integrity of what will be the most important human rights trial since Nuremberg.

The statute does not protect witnesses or suspects from coercion, and does not require that judges be impartial, or that guilt be established beyond a reasonable doubt.

"The issue of justice for gross violations of human rights and international humanitarian law is too important to risk that the legitimacy and credibility of the trials will be undermined by the perception that the special tribunal is not fair, impartial, independent or effective," the international organization Human Rights Watch wrote in a lengthy memo suggesting changes to the Governing Council yesterday.

While the United States has not officially sanctioned the Iraqi tribunal, President Bush said Monday that Hussein would be tried by Iraqis, rejecting calls for an international tribunal such as those set up by the UN for Rwanda and the former Yugoslavia. Attorneys from the US Justice Department assisted in drafting the rules.

They cover acts between July 17, 1968, when Hussein and other Ba'ath Party members took power in a coup, and May 1, 2003, when President Bush declared the end of major combat operations. Those years saw hundreds of thousands of deaths, the use of chemical weapons against Iranians and Kurds, the invasion of Kuwait in 1991, the massacre of Shi'ites and Marsh Arabs who rose up after the first Gulf War, and alleged systematic killings, rapes, and tortures.

Because of the stakes, Human Rights Watch stressed that the tribunal must conform to international standards for justice. Among the problems it found in a line-by-line review of the rules:

There is no requirement that judges, prosecutors, or investigators be disqualified from a case where "their impartiality . . . might be reasonably doubted," such as if they were involved in the crime itself, had a relationship with any of the parties, or had expressed opinions about the case.

The rules fail to establish a standard of proof, only that guilt must be proven "in accordance with the law."

The statute grants suspects and witnesses no protections against arbitrary detention or from being compelled to confess guilt, and no protection from coercion -- including threats, duress or torture.

There is little clarity on procedures, which are pegged to Iraqi criminal codes dating back to 1968, 1969, and 1971. Reliance on those laws could "open the door to abuse" because they allow some confessions obtained by physical coercion, closed proceedings, and excluding defense attorneys during questioning of suspects.

Even if the rules are all brought up to Western standards, finding enough experienced lawyers outside Hussein's Ba'ath Party will also be a problem, specialists said.

"It's full of good intentions," said Detlev Vagts, professor of international law at Harvard University. "But the big question is . . . do they have enough Iraqis with the experience and stature to handle what may be a very complicated trial?"

But Ruth Wedgwood, a professor of international law at Johns Hopkins University, disagreed.

"You don't have to make it to the far side of the moon for this," she said. "Among the exiles and the people who survived the Ba'athists, there are surely 37 good lawyers."

The rules allow non-Iraqi experts to be involved, and the Governing Council may appoint international judges to sit alongside the Iraqis. Citing the "extraordinary complexity" of a genocide trial, Human Rights Watch urged the Governing Council to require that lawyers from recent international tribunals join the effort.

The secretive manner in which the statute was written also has raised some eyebrows. Little is known about how it was drafted aside from the Justice Department lawyers' role and that Salem Chalabi, nephew of Iraqi National Congress leader Ahmad Chalabi, was one of its principal architects. The Governing Council unveiled it as a done deal last week.

In late October, three members of Congress -- Representative Tom Lantos, Democrat of California, and senators Chuck Hagel, Republican of Nebraska, and Patrick Leahy, Democrat of Vermont -- wrote a letter to L. Paul Bremer III, the top US administrator in Iraq, asking him to encourage the Governing Council to allow more public discussion, singling out the "relatively closed, non-transparent legislative process" used to establish the tribunal.