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While many Iraqis are eager for the moment when they
see Mr. Hussein in the dock, Western human rights
groups and legal experts have warned that the former
dictator is unlikely to get a fair trial, and that
the probable outcome, a death sentence, will be what
the tribunal's harshest critics have described as
"victor's justice."
Critics here and abroad have said that the proper
forum for the trials would have been an
international tribunal of the kind that has spent
four years hearing the case against the former
Yugoslav president, Slobodan Milosevic, in The
Hague.
Mr. Hussein, along with seven other defendants, will
begin the accounting for his past in a case
centering on the execution of more than 140 men and
teenage boys in Dujail, a mostly Shiite market town
35 miles north of Baghdad. The victims were seized
by the secret police after an assassination attempt
against Mr. Hussein there in 1982.
Iraqi officials say they expect the trial to be
quickly adjourned, possibly after an opening session
of only a few hours. The next session could be
delayed for weeks, possibly until after the new
year, partly to weigh motions for dismissal by
defense lawyers.
Even tribunal officials, who asked not to be
identified because they feared they could be
dismissed, say a quick adjournment could be a
relief, sparing them the embarrassment of seeing the
proceedings unravel as inexperienced Iraqi judges
and prosecutors are exposed to the pressure of a
trial that will attract worldwide attention, and to
arrangements in the courtroom, including an
on-again-off-again dispute over live television
coverage, which have been the subject of last-minute
wrangling.
The concern that the tribunal will not first take up
the most sweeping and heinous of the crimes ascribed
to the 68-year-old former ruler runs strongest among
the Shiites and Kurds who suffered the most at his
hands, and whose representatives now dominate the
government.
Iraqi and Western human rights groups estimate that
at least 300,000 Iraqis, mostly Shiites and Kurds,
were killed by Mr. Hussein's ruthless machinery of
repression, a figure that does not count the
hundreds of thousands who died in the wars he
conducted against Iran and Kuwait.
Iraqi officials say they chose to begin with the
Dujail case, in the face of government pressure to
hasten Mr. Hussein into court, because it would be
relatively straightforward to prosecute, centering
on a sequence of well-documented events, from the
day of the assassination attempt through the death
sentences handed down by Mr. Hussein's court and the
executions at Abu Ghraib prison.
The pressure has come from Iraq's new rulers, many
of whom were victims of Mr. Hussein and his
associates, having lost relatives in his gulag and
fled into exile themselves. Senior tribunal
officials, speaking on condition of anonymity, gave
as their reason for acceding to government pressure
the threat of being dismissed, as nine
administrative officers were in July, under a mostly
unenforced tribunal provision barring anybody who
was a Baath Party member from work as an
investigator, prosecutor or judge. Under Mr.
Hussein, party membership was a requirement for any
Iraqi entering a judicial college.
The political interference has been vigorously
resisted by Americans who work in the Regime Crimes
Liaison Office, established to help prepare for the
trial, and, on several occasions, with direct
appeals to the Iraqi leaders by officials in the
White House and the State Department, tribunal
officials say. The pressures began almost as soon as
formal sovereignty was restored to Iraq last year,
under Prime Minister Ayad Allawi, and have continued
under the successor government of Prime Minister
Ibrahim al-Jaafari.
Iraqi leaders have forced the appointment and later
dismissal of a succession of tribunal officials in
the past 15 months, including three men who served
as the tribunal's administrative director.
Recently, the Jaafari government rushed a new
charter for the tribunal through the transitional
parliament, inserting provisions some critics saw as
narrowing defendants' rights laid out in the
earlier, American-drafted charter. One change,
critics say, could be used to substitute a
Hussein-era standard for finding defendants guilty -
the "satisfaction" of the judges - replacing the
American standard of requiring guilt beyond a
reasonable doubt.
But perhaps the most serious interference has
involved the pressure that Iraqi politicians have
placed on the tribunal to fast-forward Mr. Hussein's
first trial and to impose a quick death sentence.
The most egregious example came last month, when the
Iraqi president, Jalal Talabani, a Kurd, and one of
three men in Iraq's presidential council who would
have to ratify a death sentence against Mr. Hussein,
told the state-run Iraqiya television network that
tribunal officials had told him that Mr. Hussein had
admitted to ordering the massacres of Kurds during
an Iraqi military offensive in the closing stages of
the 1980's Iran-Iraq war, known to Iraqis as the
Anfal campaign.
"He confessed about the Anfal executions, and the
orders issued by his name," Mr. Talabani said.
"Saddam should be executed 20 times."
On Monday, a strongly critical 19-page review of the
tribunal and its legal procedures was issued by
Human Rights Watch, the New York-based group, which
said its study had "given rise to serious concerns"
about the tribunal's "capacity to conduct trials
that are fair, and perceived among the Iraqi
population to be fair."
Similar criticisms have been leveled by Amnesty
International and other human rights and legal
monitoring groups in the United States and Europe.
Critics have been countered by other Western legal
experts who say the tribunal offers safeguards that
compare well with those at the international
tribunal in The Hague, and exceed by a wide margin
anything previously seen in a politically-sensitive
trial in the Middle East. Both sides in the argument
will have observers at the trial.
Partly, critics have focused on the pervasive
American involvement in organizing, financing and
guiding the tribunal. That involvement has extended
to providing the $138 million that has been used
partly to remodel the former Baath Party
headquarters in Baghdad into a courthouse with two
side-by-side, state-of-the-art courtrooms, and
partly to support a team of 50 American, British and
Australian lawyers, investigators, forensic experts
and archivists in the liaison office.
In the face of an Iraqi legal system that virtually
disintegrated under Mr. Hussein, the liaison office
has been the real power behind the tribunal,
advising, and often deciding, on almost every facet
of its work, always behind a shield of anonymity.
The tribunal officials say subsequent trials will
deal with Mr. Hussein's more brutal crimes,
including the killing of tens of thousands of Kurds
and Shiites in pogroms carried out by Mr. Hussein in
the late 1980's and early 1990's. They say that
preparations for the second case against the former
dictator are now nearing completion. That trial will
center on attacks on dozens of Kurdish villages in
the Anfal offensive, some involving chemical
weapons, the worst of them the attack on the town of
Halabja in February 1988.
That case, the Iraqi officials say, could eventually
run in tandem with the Dujail trial, with Mr.
Hussein shuttling, on separate days, between the two
courtrooms. The officials say no decision has been
made as to whether Mr. Hussein, if sentenced to
death in the Dujail case, would be executed before
the other trials are completed. But many Iraqis are
doubtful that any move to hang the former ruler
would be approved by the country's new rulers before
at least some of the wider cases have been
completed.
Khalil al-Dulaimi, the Iraqi lawyer leading Mr.
Hussein's defense, is planning several motions to
dismiss the case. The motions will center on three
issues: the lack of time defense attorneys say they
have had to review 800 pages of evidence amassed by
prosecutors; the supposed failure of American and
Iraqi officials to allow the attorneys to consult
with their clients often enough; and the contention
that the tribunal itself is illegitimate, since it
was established under the American occupation in
2003, and operates outside of the established Iraqi
legal structure.
One issue that was unsettled Monday was whether
there would be live television coverage. Officials
told broadcasters they expected a television feed
from the courtroom to be made available to Iraqi and
foreign television networks, but with a 20-minute
delay.
The provision appeared intended to allow the
tribunal to censor any untoward developments in the
court - an outburst from Mr. Hussein, perhaps, or a
security breakdown. Only one English-language print
reporter at a time will be allowed in the courtroom,
a position assigned by a lottery supervised by
American officials.
Last month, Mr. Hussein dismissed all the lawyers
who had registered with the tribunal to represent
him except Mr. Dulaimi, a 42-year-old attorney with
limited experience in complex criminal cases, who is
from Ramadi, a Sunni Arab city 80 miles west of
Baghdad that is a bastion of support for Mr.
Hussein. Since last December, Mr. Dulaimi has met
with Mr. Hussein at least five times at Camp
Cropper, the American Army detention center near
Baghdad airport where Mr. Hussein has been held.
One senior tribunal official, speaking on condition
he not be identified, said he believed the problems
that Mr. Hussein's lawyers have had preparing for
the trial stemmed from a strategy that centered on
presenting a deliberately weak and disorganized
defense that would lend an aura of farce to the
trial proceedings. "They want the tribunal to look
foolish, and Saddam to look as though he has been
deprived of any real defense," the official said.
"With the strength of the case against him, it may
be their best way of fighting the case."
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