[ppi] [ppiindia] Give Iraq justice, not vengeance

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**http://www.iht.com/articles/2005/10/18/opinion/eddicker.phphttp://www.iht.com/articles/2005/10/18/opinion/eddicker.php



      Give Iraq justice, not vengeance  
      Richard Dicker International Herald Tribune

      TUESDAY, OCTOBER 18, 2005
     


     
      BAGHDAD On Wednesday, the first trial of Saddam Hussein will begin here 
in Baghdad before the Supreme Iraqi Criminal Tribunal. The trial, and those 
that follow, present Iraqi authorities with an unprecedented opportunity to 
provide a measure of truth and justice to the victims of the unspeakable human 
rights crimes that occurred in Iraq. 

      Given the profile of the accused and the political circumstances, the 
Iraqi trials will be scrutinized for years to come. But if justice is to be 
done, the trials need to be fair and to be seen to be fair. 

      Success will not be easy. The crimes committed under Saddam's regime - 
the mass execution of more than 100,000 Kurds in 1988, the killing and forced 
disappearance of tens of thousands of Shiites in 1991, unspeakable torture on a 
wide scale - mean that credible trials will be complex and time-consuming. The 
trials will pose large legal, procedural and practical challenges for the 
nascent Iraqi judiciary. 

      Unlike the tribunals for the former Yugoslavia, Rwanda and Sierra Leone, 
the Supreme Iraqi Criminal Tribunal is a national court. It will be applying a 
mix of international and domestic criminal law within a recently reconstituted 
national legal system. Locating such criminal trials within the affected 
country is one way of making justice accessible to the victims and the society 
as a whole, but cannot come at the expense of fundamental fair trial rights or 
the consistent application of international law. 

      Human Rights Watch has spent years documenting the crimes of Saddam's 
regime and has repeatedly called for the perpetrators of these atrocities to be 
brought to justice. On the basis of our field research on the extermination of 
the Kurds, I spent a year in 1994 trying to persuade governments to bring a 
case of genocide against the Iraqi state. So we welcome efforts to investigate 
and prosecute former Iraqi leaders. But the evolution of the Supreme Iraqi 
Criminal Tribunal over the last two and a half years has given rise to serious 
concerns about its capacity to conduct fair trials. 

      There are several significant human rights shortcomings in the Supreme 
Iraqi Criminal Tribunal law. If these are not addressed, they could undercut 
internationally guaranteed rights and jeopardize the legitimacy of the 
proceedings. 

      For example, the judges will be able to find Saddam guilty if they are 
"satisfied" by the evidence presented against him. This standard of proof for 
conviction is insufficient to assure a fair trial. Conviction must be based on 
a reasoned judgment that establishes each element of the crime beyond 
reasonable doubt. The reasonable doubt standard is applied by all international 
criminal tribunals trying crimes against humanity, war crimes and genocide. 

      It is also troubling that the tribunal will be able to use a defendant's 
refusal to answer a question from a judge as evidence against him. 
International law protects a defendant's right not to incriminate himself. 

      Moreover, current arrangements by the Supreme Iraqi Criminal Tribunal 
have not sufficiently safeguarded the defendants' right to a lawyer. An accused 
is entitled under international law to an effective defense, including 
unrestricted and regular access to legal counsel at all stages of criminal 
proceedings. We have urged the Supreme Iraqi Criminal Tribunal to ensure that 
evidence obtained before detainees could effectively and freely exercise their 
right to be represented by counsel is not admitted against them. 

      Finally, the Iraqi tribunal may impose the death penalty. From a human 
rights perspective, the death penalty is cruel and inhumane punishment. None of 
the international tribunals permit the death penalty. At the Iraqi tribunal the 
death penalty applies to a wide range of crimes and there is no possibility of 
clemency. 

      The overwhelming and unique importance of these trials to the Iraqi 
people, the people of the Middle East and worldwide, underscores the urgency of 
these trials being done right. Not only will these trials influence the future 
of justice and the rule of law in Iraq, but they may also be the only form of 
justice that the victims of Saddam's regime are likely to get. If justice - 
rather than vengeance - is to be delivered through the upcoming trials, the 
Supreme Iraqi Criminal Tribunal must establish its credibility with Iraqis and 
with the international community by demonstrating its commitment to principles 
of impartiality, independence and fairness. The stakes are too high to do 
otherwise. 

      (Richard Dicker is the director of Human Rights Watch's international 
justice program.) 
     
         


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