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Move over Scott Peterson, here comes the trial of Saddam Hussein (San Francisco Chronicle) July 18, 2004

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

The stars of this summer’s blockbuster movies have nothing on the high-profile defendants facing trials in the criminal court system.

Scott Peterson, Kobe Bryant and Michael Jackson are all marquee attractions in the reality whodunits that grab daily headlines in courthouses from Colorado to California, not to mention their corporate counterparts, Martha Stewart and Enron’s Ken Lay.

Now comes the most notorious criminal defendant of them all: Saddam Hussein. From a courthouse rigged up on the grounds of one of his former palaces, the deposed Iraqi leader recently faced charges of genocide, war crimes and crimes against humanity for which he will stand trial before a three-judge panel of his fellow countrymen.

But the trial of Hussein will be unlike anything Americans have seen on courtroom television. If criminal trials are complex dramas, that goes double for political criminal trials, at least triple for international political criminal trials.

This will be an extraordinary difficult case, not because we don’t know whether Hussein is guilty or what crimes he committed, but because of highly problematic procedural, evidentiary and political issues that must be played out before a world audience on a fragile Iraqi stage.

Procedurally, there is almost no precedent for a trial like this. There is the “victor’s justice” of the Tokyo and Nuremberg criminal tribunals after World War II, in which the victorious allies, trying war criminals in Germany and Japan, carried out relatively swift justice. In many ways, Iraqis could benefit from that kind of closure to the Hussein chapter of their history.

Since Tokyo and Nuremberg, however, the court of world opinion has come to demand far more objective and extensive procedures in trying international tyrants.

More typical of this modern approach are the criminal tribunals established in the 1990s in connection with the genocide in Rwanda and the many crimes committed by Slobodan Milosevic and his henchmen in the former Yugoslavia.

Unfortunately, the Milosevic trial has been a long, tedious, propaganda filled reminder that more process does not necessarily produce a better outcome.

The trial, conducted in a special international tribunal at The Hague, has gone on for a year, and Milosevic has not yet presented his defense.

Finally, the United Nations — which has never met a lengthy process it didn’t like — has called for a “completion strategy” for the Yugoslav tribunal, which is expected to expend more than $1.5 billion over 18 years to try 100 cases, including Milosevic’s. Think “independent counsel” in slow (and expensive) motion.

Finding the right balance between a procedurally fair yet orderly and just trial of an obvious criminal is job one for the fledgling Iraqi justice system.

Judges should not allow Hussein to call leaders from Western democracies as “witnesses” to politicize the trial, as Milosevic has been allowed to do.

The tribunal should resist efforts under way by international human rights organizations to preclude the death penalty and, instead, appropriately follow Iraqi law, which allows it in cases involving murder and rape.

Beyond these procedural problems lie major evidentiary challenges. Knowing that Hussein committed heinous international crimes and offering proof of them in a court of law are two very different propositions.

Many of these crimes were committed 20 years ago, making it difficult to gather evidence and assemble witnesses.

We believe we know where the victims’ bodies are buried, but must they be exhumed and examined for trial? Finding witnesses who were high enough in the chain of command to corroborate Hussein’s intent to commit genocide or his authorization of war crimes could be difficult.

To manage these problems of evidence, prosecutors would be well advised to try Hussein for a limited number of crimes, not the 300 suggested by some experts or even the 66 criminal charges brought against Milosevic.

Even with the assistance of legal experts from the United States and elsewhere, it will take months to gather the necessary evidence to begin the trials, and perhaps as long as a year or two before Hussein faces his judges.

Adding to the pressure, the whole world is watching. Hussein’s first wife has already gathered an international dream team of about 20 attorneys, including at least one from the United States and one from France.

Human Rights Watch has issued a pre-emptive critique of the proposed trials, noting the judges’ lack of experience in trying crimes against humanity and the fact that the Iraqi system allows for the death penalty and may not require proof beyond a reasonable doubt.

Surely the United States did not hand over Hussein to the Iraqis without being convinced it would result in an orderly trial, a likelihood of conviction and the prospect of the death penalty.

Iraqis themselves will have a myriad hopes for the trial. Some may wish that the United States be discredited; others that Hussein’s victims receive justice, if not revenge.

Judges and lawyers often say that hard cases make bad law. This is a case that may be made difficult by the law, if process becomes king and makes it impossible to complete an orderly trial of Hussein within a reasonable time frame.

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