• The debacle -   Curtis F.J. Doebbler

• Who is trying whom? -   Saad N. Jawad

• No expectations in the Arab world -   Bassma Kodmani

• Arab public opinion -   Shibley Telhami

Neither Nuremberg nor Jerusalem: The faltering first steps of the Iraqi High Tribunal
 Nehal Bhuta

A scowling Saddam Hussein looms large in the footage of his trial before the Iraqi High Tribunal (IHT)--pounding the table, arguing, at times shouting. The outtakes picked for the evening news give the impression of a courtroom dominated by him and his half-brother Barzan. In a trial of a once-powerful and ruthless political leader, theatrics--even histrionics--are to be expected. A smart defendant knows that if he succeeds in politicizing the process, he can question its credibility and neutrality. Provoking the court to take heavy-handed measures to control him only underscores his claim that the whole proceeding is based on illegitimate force.

But the impression that Saddam and Barzan have successfully undermined the judicial process is misleading. As I sat in court, day after day, in November, December and March, I saw that the defendants were often quiet beneath the vaulting 30 foot ceilings of the former Baath Party Regional Command Headquarters. Despite outbursts of rudeness and defiance, they also eventually complied with the judge's directions--albeit after a few confrontations and crises.

Nehal Bhuta is Arthur Helton Fellow at the International Justice Program of Human Rights Watch.

The goal of law is to provide justice. It is a goal that the Quran instructs us all to strive for, and one of which Justice Jackson famously warned his fellow judges at the opening of the Nuremberg trials. "We must never forget," he said, "that the record on which we judge defendants today is the record on which history will judge us tomorrow...to pass these defendants a poisoned chalice is to put it to our own lips as well."

Since the early days of Islam and the Nuremberg trials more than 60 years ago, justice through international criminal law has been advanced significantly. First, the manner in which courts are created has evolved from courts established only to try specific persons, to courts intended to apply the rule of law to a wider category of persons. This trend can be seen first in the progression from the victors' courts of Nuremberg to the ad hoc United Nations' tribunals for the former Yugoslavia and Rwanda. The later tribunals, at least in theory, apply the law to everyone within their temporal and geographical jurisdiction. An even more substantive leap was made with the International Criminal Court. This permanent criminal court is eventually intended to apply the law to everyone.

Second, international human rights law now guarantees the right to a fair trial. Defendants are no longer subject to the arbitrary will of the victor in an armed conflict, but are to be tried by a competent, independent, and impartial tribunal.

And third, the international rule of law is now understood to apply to all states, and in the case of international criminal law, to all persons. This ideal takes us back to the original purpose of law, which is to ensure justice. And this in turn contributes to ensuring respect for the rule of law in society and providing redress for victims. It is through these developments that law serves laudable ends and not merely the timely and often dishonorable political interests of states.

Over 50 years ago--as Justice Jackson observed--and especially today, one could hardly imagine the existence of an important trial that failed to strive for justice by building on the above developments. Indeed, the law today not only makes a fair trial a human right, but subjects those who knowingly violate this right to war crimes charges. But despite this illustrious history and the legal developments outlined above, once again political ends have corrupted commitment to the rule of law.

The Iraqi Special Tribunal (IST) constitutes an attempt to reverse all three of the aforementioned developments because it is a short-sighted attempt by a powerful, but illegal, aggressor to legitimate its own crimes against peace. The tribunal is victors' justice born from an illegal invasion that grew into an illegal occupation. Such a court is unlawful under general international law that prohibits states from benefiting from their own illegal acts. It is also illegal under the law of occupation that prevents occupiers from changing the laws and court systems of a country.

In its functioning, the IST's violations of human rights have drawn criticism from almost every non-biased observer. The IST, for example, has been described by the UN's expert on fair trials as an illegitimate tribunal that breaches international human rights law. It has become a debacle notable for being stage-managed by the United States military that is occupying Iraq, and used by Iraqis who benefit from the foreign occupation to exterminate those with whom they have political disagreements. Instead of being a step in the development of international criminal law--the law it allegedly was to apply--it has become a dangerous embarrassment that has already led to the death of more than a half a dozen persons connected with the process, including two defense lawyers, and contributed to an out-of-control spiral of violence in society.

The IST judges, ignorant of both international criminal law and pre-existing Iraqi law, have refused to accept legal arguments, saying in at least one case, that they "don't want" them, as if to reinforce the insult to the rule of law.

The IST has failed to achieve justice, respect of the rule of law, or redress for victims of crimes. Instead it has instigated violence, encouraged disrespect for the law, and left victims wondering if the right people are on trial. When perpetrators of the crime of aggression are running the courts, the record on which they judge defendants is bound to be unjust. The IST has proven this to be true. The IST will poison international justice for a long time to come, unless it is forced to respect the developed concept of justice with which we live today. -Published 11/5/2006 © bitterlemons-international.org

Curtis F.J. Doebbler is one of the lawyers to former Iraqi President Saddam Hussein and professor of law at An-Najah National University in Nablus, Palestine.

Despite that most Iraqis were yearning for a change in the Baathist regime and for a fair trial of its most hated symbol, the fact that this transformation and trial have come at American hands has caused the public to reflect upon its original wishes. Most observers in the Arab world, and in Iraq in particular, thought that the coalition occupation and administration would not venture putting the former Iraqi president on trial. They believed that such a trial would soon become reciprocal. Indeed, this is what has happened. No one could have imagined that such a trial would provide the former president with the platform that he has lacked since the occupation of Baghdad to speak his mind directly to Iraqis, Arabs and the wider world. No matter what any one individual felt about him, the former president has managed to turn his days in court to his credit, helped along by the poor and inefficient conduct of the public prosecutor.

One can say fairly that public opinion in Iraq about the trial is split into three categories. There are those who welcome it as the best possible punishment for their long-ruling dictator, and seek a quick trial and judgment. Others reject it, and look at the proceedings as a humiliation for Iraq, Iraqis and Arabs in general--never mind whether they liked or disliked Saddam Hussein--because it has been carried out by the occupiers. The third category of public opinion is indifferent. These people argue that Iraq and Iraqis have enough day-to-day problems rather than to bother with settling old scores between the former president, and the Americans and their Iraqi collaborators.

If one were to evaluate the trial from the point of view of Iraqi experts or, more precisely, Iraqi politicians, one is faced with more experienced and rational views. There are those who believe that this trial is both illegal and unjust. They argue that since the court and its judges were appointed by a law of the occupation forces, then they are unlawful and unqualified to try a president who was legally elected to his office.

They also believe that, according to international law, occupiers have no right to change laws or impose new ones. Some might respond by saying that Iraqis have gained sovereignty, but everything in Iraq is ruled and monitored by the TAL or Transitional Administrative Law, which was enforced by the occupiers. Even the new constitution was drafted according to this law. Detractors also emphasize that the former president and the court remain under American custody and supervision.

Still others think that the court has picked the wrong case and crime with which to start. The Dujail incident occurred after a clear attempt on the life of a ruling president in a time of war. All common legal systems would have acted similarly, albeit perhaps not with the same ruthlessness and widespread punishment. They add, too, that the trial of the assassination plotters was legal according to previous Iraqi law. Finally, a growing numbers of unbiased observers compare what happened in Dujail to what is happening today, as tens, if not hundreds, are indiscriminately losing their lives daily due to the chaos resulting from occupation and the subsequent poor administration.

In short, Iraqi society and particularly its political arena are sharply divided about the trial--as divided as they are about the occupation and the role of the Iraqi expatriates who returned with it. But one can fairly conclude that those in opposition are gaining in numbers, especially as they find that, after more than three years of occupation, public services and daily life under Saddam's dictatorial rule were better than what they witness today.-Published 11/5/2006 © bitterlemons-international.org

Saad N. Jawad is a professor of political science at Baghdad University.

The scarcity of opinion articles on Saddam Hussein's trial in the Arab press is remarkable. Most newspapers, with slight variations in tone, limit their coverage to neutral informative articles mentioning the scheduled date for the resumption of the trial, May 15.

For most Arabs, the trial is only one aspect of America's grand design to change Iraq and reshape the Middle East. But there is no sense that the trial will have much impact on the future of the region. This may not be an accurate assessment and is probably more a reflection of changing priorities and the feeling that the worst has already happened.

Secular nationalists believe the trial and Saddam's indictment will further ignite Iraqi resistance. But no one really believes it will reunify Iraqis of different religious communities around a common objective. If Iraq's division along sectarian lines is in any way reparable, it is unlikely that memories of Saddam's rule or his contested trial will be effective.

The overwhelming majority of Arabs, governments and public opinion alike, have no trust in the way the trial is organized. Opinions range from questioning the legitimacy of the tribunal and the trial procedure based on legal criteria--as some international human rights organizations have already stressed--to an outright denunciation of the enterprise altogether as a farce: the Iraqi judiciary is not independent; the work of the tribunal is dominated by US advisors; basic guarantees for the accused are missing; past American support for Saddam's regime will not be revealed; the composition of the court is flawed and the chief judge is bent on revenge; the evidence produced to charge Saddam is not valid and much evidence of the alleged mass executions at Dujail as well as of other charges to come, has been lost.

In contrast, advocates of "democracy first" across the Arab world, mainly human rights activists and liberal intellectuals and opinion leaders, applaud the trial as representing the first time an Arab leader is held accountable in a court of law for his crimes. In Lebanon in particular, they see in it a hopeful precedent for the trial of key figures implicated in the assassination of former Prime Minister Rafiq Hariri. Saddam is facing the retribution he deserves and Arabs need to learn that stability can and must be built on voluntary civic coexistence rather than on the iron-fist control of a dictator. They need to develop the notion of equal responsible citizenship as the basis of national cohesion. The annihilation of Saddam through his indictment and execution will provide the ruins on which to build this new political culture.

The Arab world is busy coping with the new regional disorder. There remains some nostalgia among secular nationalists for the dream that Saddam nurtured of an Arab state endowed with all the ingredients of a major regional power and the capacity to defend Arab interests. But those who hold this opinion are now a minority, and even among them Saddam is resented for his adventurism, his foolishness, and for having so grossly misread America's determination and bluffed about his own capabilities. Nationalists are angry at America for its hegemonic designs, and liberals are just as angry at the US for its unforgivable ignorance of Iraqi realities. But nationalists and liberals alike see that Saddam brought disaster upon himself, his country and the whole region and that the Arab world is paying a very heavy price for his fatal mistakes.

Arabs are concerned about the consequences of a chaotic Iraq torn by sectarian strife for the fragile stability of multi-religious and multi-ethnic societies. For Arab leaders, Saddam was undoubtedly an embarrassing partner; but Iraq under his control was stable and secular. The reasons for which they all supported him in his eight-year war against Iran from 1980 to 1988 are as valid today as they were 20 years ago. Iran is now emerging as the uncontested regional power and its Islamist nationalist discourse is more attractive to Arab public opinion than any Arab leader's promises. Iranian President Ahmadinezhad is not a dictator. He was democratically elected, enjoys wide domestic support and has the right discourse in the face of the prevailing injustices from which Arabs and Muslims suffer. Saddam's image has grown pale as Iran's Islamic nationalism sweeps popular imagination.

On most levels, Saddam Hussein is a man of the past who lost his credibility. He ceased to be a regional leader long ago, he is not an ideological symbol anymore, nor is he a national leader. Yet he remains the last symbol of what was for decades a Sunni-dominated Iraq, and the godfather of armed Sunni resistance. The security equation and the possibility of US troops beginning to withdraw from Iraq may still depend heavily on him.

It is in this sense only, not because of any form of popularity, that his indictment and possible execution are likely to represent an unbearable cost.- Published 11/5/2006 © bitterlemons-international.org

Bassma Kodmani is executive director of the Arab Reform Initiative.

The trial of former Iraqi President Saddam Hussein was supposed to be part of the healing process in Iraq. It was intended to send a signal to the rest of the region about the fate of dictators and the beginning of a new era of democracy. Instead, it has merely served to reinforce sectarian divisions within Iraq and highlight Arab public resentment of American foreign policy and of the emerging governing order in Iraq.

From the outset, international human rights organizations have doubted the ability of an Iraqi entity under foreign occupation to conduct a fair trial that does not appear to be a victor's court. Arab public opinion has continued to view the trial as an American-backed enterprise intended to justify an unpopular war. Even the obvious and serious violations of human rights by Saddam Hussein's regime have been difficult to push to the front of Arab concerns, given the many reports of torture in Iraq, both by the United States military and by the Iraqi government.

The picture of Saddam Hussein in captivity did have an early impact, especially on rulers: here was an almost absolute Arab ruler of an important country--which on the eve of its invasion of Kuwait seemed on the verge of assuming an Arab leadership role--helplessly held prisoner. The implications were not missed by many rulers. Many in the Arab world who long opposed Saddam Hussein--while many others admired him--were in some ways pleased to see him removed from office and were hoping that the promise of political reform in the region could be fulfilled.

But from the outset, the vast majority of Arabs opposed the American-led war and saw in it motives that had little to do with the spread of human rights and democracy. In surveys I conducted with Zogby International in six Arab countries (Egypt, Saudi Arabia, Morocco, Jordan, the United Arab Emirates and Lebanon) both before and after the war, the majority believed that the US aimed to control oil, help Israel and weaken the Muslim world. Only small minorities believed that the aims included the spread of democracy and human rights. Thus, even many of those who were not admirers of the former Iraqi ruler were uncomfortable seeing a sitting Arab president captured by a foreign power whose aims they opposed.

Since then, the picture has gotten worse as the trial has continued to unfold. If some had harbored hope that the removal of the Baathist regime would usher in a better era in Iraq that might inspire others in the Arab world, these hopes have all but disappeared among the Arab public. To be sure, Iraqis remain split on the benefits of the new order, with Shi'ite and Kurdish majorities seeing it as a good thing and most Sunnis opposing it. But outside Iraq, majorities of Arabs continue to believe that Iraq is worse off than it was under the rule of Saddam Hussein, and, even worse, that the Middle East is now less democratic than it was before the war. Thus one of the key intended messages of the trial was dead on arrival.

The trial has had important moments that should have led to contemplation among all who have followed it, regardless of their political views. Many victims of the Iraqi regime spoke movingly of the horrors they suffered. Yet even these dramatic moments were undercut by the prevalent suspicion of the legitimacy of the whole enterprise, of the fact that this has not been an independent international tribunal whose credibility is established. Reports of major torture episodes by coalition forces and by the new Iraqi forces, exemplified by the Abu Ghraib prison abuse pictures, have vastly weakened the impact of the evidence of Saddam's abuses. In an especially powerful episode, Saddam's lawyers turned to one of his victims who told of being abused by Saddam's forces in that same prison and pointedly asked her if Saddam's jailers had unleashed dogs against her. The image that the question evoked in the minds of the Arab public was even more powerful than the testimony of the distraught victim.

In the end, the trial has had a polarizing impact on Iraqis themselves, and a mostly negative impact in the Arab world. For the many Iraqis, mostly Shi'ites and Kurds, who suffered at the hands of the Baathist regime, the trial has served to comfort and has reinforced their view that removing the regime was a good thing. For most Sunni Arabs the trial has served to highlight their new weakness. In the rest of the Arab world, most have seen the trial in part through the prism of the Iraqi Sunni Arabs, in part through their resentment of American foreign policy, and in part through the fear that the Iraq war has served to weaken the Arab and Muslim worlds and to spread anarchy and division within Iraq.- Published 11/5/2006 © bitterlemons-international.org

Shibley Telhami is Anwar Sadat professor for peace and development at the University of Maryland and non-resident senior fellow at the Saban Center of the Brookings Institution in Washington, DC.