Iraqi interim prime minister Iyad Allawi wants to get war-crimes trials underway this week for former members of Saddam Husseins Baathist regime, with two pre-trial hearings started last weekend. While the trials are obvious a needed step in creating a legal system in the new Iraq, watchdogs see the timing of Allawis announcement has a threat to the proceedings legitimacy.
Allawi initially made his announcement to the interim National Council last Tuesday. While he declined to name which officials would first head to trial or release a timetable, he told the current government:
"I can now tell you clearly and precisely that, God willing, next week the trials of the symbols of the former regime will start, one by one so that justice can take its path in Iraq.
This wasnt the first time Allawi has promised trials; he earlier cited October and November as target dates, and his announcement took even the State Department by surprise. But judges began questioning Chemical Ali Hassan al-Majid and former defense minister Gen Sultan Hashim Ahmed -- two of the 12 men (including Saddam Hussein himself) accused of war crimes and attempted genocide - on Saturday, with these interrogations the first step toward a trial under interim Iraqi law. The charges against the 12 men stem from the infamous Al-Anfal campaign in the late 1980s, in which Husseins government killed thousands of Kurds, including chemical attacks.
The sudden decision to speed up the legal process has drawn heavy criticism from Allawis political opponents, who accuse him of timing the announcement to score political points for his underdog candidacy in the Jan. 30 national election.
"So far, we know nothing about the trials. No one knows how they took the decision or who took the decision," Kurdish politician Mahmoud Othman told the Associated Press. "Suddenly they break the news and provide no explanation. People won't take it seriously."
Theres also the issue of whether an unelected government should even be making this decision, a concern some anonymous members of the Allawi Cabinet voiced to reporters. Even with the Saturday interrogations kicking off the process, the trial stage almost certainly wont come until after the elections, which only enhances the speculation that Allawis trying to drum up votes with the move. As the AP noted:
Putting members of Saddam's old government on trial during the election campaign seems intended to rally all Iraqis behind the new U.S.-backed order, though some have said it could inflame ethnic and sectarian divisions. The Sunni Arab minority did well under Saddam, but elections will favor the long-oppressed Shi'ite majority. A senior Iraqi official, who asked not to be named, said he regarded Allawi's announcement as a pitch for pre-election attention and that more time was needed to arrange the trials.
The need for fair trials is the other obvious side of the problem, with defense lawyers -- who report a lack of access to their clients -- given little time to prepare for hearings, and letting their anger at Allawi be known:
"There is no transparency and everything is mysterious," said Badee Izzat Aref, lawyer of former deputy prime minister Tariq Aziz. "They (the judges) are under pressure from the executive authority because of the elections."
"The Iraqi court will be in violation of the basic rights of the defendants, which is to have access to legal counsel while being interrogated and indicted," said Ziad al-Khasawneh, one of Husseins Jordan-based lawyers.
For international watchdogs, the main concern is that the trial process produce a legitimate, viable result, which seems impossible in the current situation. Last year, Human Rights Watch found multiple problems with the Governing Councils tribunal system, and proposed standards to fix it. The system Allawis currently using, HRW says, wont ensure an honest reckoning:
The Iraqi Special Tribunal statute lacks significant fair-trial protections, including explicit guarantees against using confessions extracted under torture, and a requirement that guilt be proven beyond a reasonable doubt. At the same time, a suspect convicted by the tribunal may face the death penalty, which precludes the United Nations from providing the tribunal with much-needed technical assistance.
The tribunals statute also fails to require that judges and prosecutors have relevant experience trying cases of genocide, war crimes, and crimes against humanity -- experience readily acknowledged to be lacking among Iraqi judges. The statute bars international experts from participating as prosecutors; while it allows for international judges, none have been approved. Given the complexity of prosecuting these types of cases and the current state of the Iraqi justice system, this raises concerns that the tribunal will lack necessary expertise.
Putting the former Baathist regime on trial is a noble goal, and (along with the ongoing Milosevic and Pinochet trials) belated justice for the numerous victims of dictators atrocities. Allawis sudden decision risks turning a potential watershed moment in international law into a political ploy that could undermine the very justice the Kurds and other victims deserve.