Published in the Miami Herald
on December 17, 2003:

THE TRIAL
Give Hussein Due Process

By Fiona McKay

With the capture of Saddam Hussein by U.S. forces in Iraq, the immediate question is how to bring the former dictator to justice.

In all likelihood, Hussein will be tried for crimes against humanity, war crimes and genocide by an Iraqi tribunal. Just last week, the Iraqi Governing Council announced that it will create legislation to establish a special tribunal to try those responsible for gross human-rights violations under Hussein's regime. This was welcome news, in particular for the countless victims of Iraqi government atrocities. The victims and ordinary citizens of Iraq finally have reason to believe that justice is near and are able to begin to place trust in Iraq's emerging leadership. The announcement of the tribunal is critical for creating conditions for a stable and peaceful Iraq.

To stop the cycles of violence and to have true accountability, however, justice in Iraq must be done in the right way. For a tribunal in Iraq to have legitimacy, several prerequisites must be met.

Chief among these is respecting fair-trial procedures and due process of law. This requires an open trial, in which the defendant has a right to choose his lawyers and challenge the allegations against him. The trial must conform to the highest standards of justice, including safeguards that respect the rights of victims as well as the accused.

The tribunal also must be independent of political interference. In the immediate aftermath of Hussein's capture on Sunday, Bush administration officials hailed the event as a victory for the Iraqi people. For this to be true, the tribunal trying Hussein must be perceived in Iraq and elsewhere as an independent legal body insulated from both internal and international political pressures.

One way to ensure independence is for the tribunals to require the inclusion of international judges, prosecutors and investigators, much like the special tribunal in Sierra Leone, which is now trying those who directed brutal human-rights violations during that country's civil war. The Sierra Leone court was created jointly by the United Nations and the government of Sierra Leone. The Iraqi tribunal should be a similar cooperative effort. The statute for the Iraqi tribunal contemplates international participation. However, it limits such involvement to informal advice and consultation rather than direct and mandatory participation.

International assistance

The complex prosecution of Hussein, which involves hundreds of separate violations committed over 25 years, also calls for international assistance. Initial studies by the United Nations and others have shown that the Iraqi justice system is not capable of rendering fair and effective justice for these types of crimes on its own. It will take time for the weakened Iraqi justice system to recover from years of degradation and corruption, to build up human resources and physical infrastructure, including not only judges and prosecutors but also investigators, court administrators and a strong legal profession to plead cases in court.

Every step, therefore, should be taken to ensure that that tribunal moves forward with international assistance. One way of bolstering the tribunal is to involve, in particular, countries with direct experience investigating and trying crimes against humanity, war crimes and genocide in other countries.

Partnership with the international community need not involve surrendering local ownership and identity. It is possible to craft a solution that would give a central role to Iraqi jurists and other personnel, apply Iraqi law as well as international law, and be one component of a broader and longer term rehabilitation of the Iraqi legal system.

Win Iraqis' confidence

The tribunal will face the ongoing challenge of winning and keeping the confidence of Iraqis from all sectors, as well as non-Iraqis affected by the abuses of Hussein and his regime. As it moves forward to shape the tribunal, the new Governing Council would be wise to consult as widely as possible.

The new Iraq and its partners will have only one chance to bring Hussein to justice. Those undertaking the task have a heavy responsibility to get it right.

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