”I love Saddam too much,” the Kurdish barber told me as I sat down to get a haircut in Zakho, northern Iraq, shortly after the Gulf war of 1991. “I will show you how much.” He unbuttoned his white shirt and rolled up his sleeves, and a workmate lifted the back. There, across his olive skin, were the scars of dozens and dozens of razor cuts, each about an inch long. They were made by Saddam Hussein’s troops, the barber explained, when he was held in an Iraqi jail in the late 1980s. “Torture?” I asked. He shook his head. In Hussein’s Iraq, torture was much more serious. This was done by Hussein’s troops just for fun, because he is a Kurd. “You see how much I love Saddam.”
Now, finally, Saddam Hussein is being brought to court to answer for his crimes. Yet one thing is certain about this trial: the case of the barber of Zakho, like so many others, will not be heard.
Hussein’s charge sheet should be one of the longest in history, including the gassing of the Kurds, ecocide against the Marsh Arabs and the beating of captured allied pilots in the first Gulf war. Then there is the murder, torture, enslavement, rape, robbery, incarceration, eviction and blackmail of millions of ordinary Iraqis. Instead the Iraq Special Tribunal for Crimes Against Humanity, meeting in Court No 1 inside Baghdad’s Green Zone, is hearing one main charge – that of premeditated murder. Hussein and seven co-defendants stand accused of the massacre of 143 Shia men in Dujail, north of Baghdad, in 1982. There is no doubt that this is a serious case, but it hardly constitutes the mega-trial that Hussein’s rule deserves.
The reason for this has to do with politics – not Iraqi politics, but a battle raging between the United States and the International Criminal Court. When the ICC was inaugurated as the first permanent international war crimes court in July 2002, human rights groups declared that the world had turned a corner. America thought otherwise. The US government fears the risk of “political” prosecutions by a court that operates, of necessity, outside normal democratic controls. Supporters of the court insist there are safeguards against abuses, but Washington is not convinced.
Since 2002, the US has been pushing for its citizens to be granted immunity from prosecution through the court. The campaign hardened in 2003, when Washington began to withdraw military aid from some of the nations refusing to sign an immunity deal. In December, Congress extended this ban, via the Nethercutt Amendment to the Foreign Operations Appropriations Bill, to cover non-military aid too. This summer, $47m was lopped off grants to dozens of nations, including some of the world’s poorest.
Nevertheless, the International Criminal Court has prospered. A total of 99 states, more than half the world, are now members, and there are three active cases before the prosecutor, all concerning war crimes in Africa. The European Union has signed up, even if it did so more out of pressure from human rights groups than through real commitment. African states have signed up hoping the court will provide a way of swatting warlords who hop across national borders. South Americans have joined it as an “insurance policy” against the return of the military juntas.
Even Britain, America’s ally in so many other things, is quietly going out of its way to support the ICC. In 2002, the Foreign Secretary, Jack Straw, joined EU ministers in collectively refusing to sign US impunity deals. Then, last year, Britain gave extra cash to the court, allowing its chief prosecutor, Luis Moreno Ocampo, to add to his underfunded staff. In April, Straw politely refused to support the US in trying to stop the UN from hiring the ICC to run its Darfur war crimes trials. Now Britain is the first country in the world to launch a prosecution, against servicemen who were based in Iraq, using ICC law.
The failure to get immunity from the ICC has only sharpened Washington’s desire to keep the court out of Iraq. The Bush administration has been determined to show, with the trial of Saddam Hussein, that international courts are not needed, because national courts can do the job. One day in December 2003, on Iraq’s provisional government website, there suddenly appeared the statute for a special tribunal, with no input from international courts and no international judges. A week later, US forces had found and arrested Saddam Hussein. Human rights groups have been complaining ever since.
At first sight, the Special Tribunal’s rules look similar to those of other war crimes courts. There are the same charges: genocide, crimes of war and crimes against humanity. The similarities end there, however. Human rights activists worry about even-handedness, because this court has a lower standard of proof than the “beyond reasonable doubt” of international courts. The judges’ names are secret, and they have the power to hold some or all of their trials in private. The tribunal can also use the death penalty, which is not an option for international courts. Then there is the delicate question of legitimacy. The statute of the Special Tribunal was presented as a fait accompli, without consultation or discussion with the Iraqi people.
Criticism of the Special Tribunal sharpened in July last year when, during his arraignment by the examining magistrate Raid Juhi, Saddam Hussein was given no defence lawyer and had his words cut from TV broadcasts. New complaints were made this summer, with Hussein’s lawyers saying they have had too little time to prepare for the trial. Hussein’s family has approached a top British QC, Anthony Scrivener, and also, reportedly, Desmond Doherty, a solicitor who was involved in the Bloody Sunday inquiry. Both are skilled advocates, but they will have had only days to prepare their case.
The rush to tie up loose ends before the trial opened had shades of Kafka. Iraqi officials raced to ensure that the laws to make it legal were published in the official government gazette. And there are signs of panic among Iraqi officials who worry about the time factor of this trial. The only comparable trial, that of Yugoslavia’s Slobodan Milosevic, is expected to last five years. This is partly because of the sheer weight of evidence, and partly because it takes a long time to prove complicated lines of command from battlefields to the president. A similar timeline could be expected for Hussein if he were given a full trial, and here is where the problem lies. Hussein is 68 years old, and Iraqi law says that nobody over the age of 70 can be executed. Hence the concern among prosecutors about getting things moving.
The Milosevic trial has shown something else, too, which is just how important it is to have experienced judges. Too lenient, and the trial collapses into pantomime. Too tough, and it will look like a kangaroo court. Iraq has no judges with such experience because, under Hussein, there were no proper courts. International judges are likely to be sorely missed.
What all this adds up to is a court and trial that seem almost certain to deliver a conviction, and probably in double-quick time. Iraq’s interim president, Jalal Talabani, certainly thinks so. On 5 October he told Radio Free Europe: “Saddam Hussein is a war criminal. He committed crimes against the Iraqi people, against our neighbours, against Iranians, against Kuwaitis. For that I think he will deserve to be presented to the court as a war criminal.” So that’s all right, then.
Many would say amen to that, and not just my barber in Zakho. Yet this trial is not just about Hussein. It is the first big test of Iraq’s commitment to the rule of law. And this trial is about justice for the accused and for those who suffered. Amnesty International, one of the most vocal critics of the Special Tribunal, put it best: “In order to bring justice to the thousands of victims, the proceedings must be fair, impartial and transparent.”
On present readings, this court is likely to be found guilty on all three counts.
Chris Stephen is the author of Judgement Day: the trial of Slobodan Milosevic (Atlantic Books, £14.99)