BAGHDAD — Fourteen months after Saddam Hussein was found cowering in his spider hole, the Iraqi tribunal set up to judge him and 11 of his top associates on mass murder and genocide charges is getting ready to hold its first trials.
In the glare of world opinion, the court will be on trial, too.
Few dispute the role of Hussein and his cohorts in the deaths of tens of thousands of Iraqi Kurds and Shiites. But many have questioned whether a court created under foreign occupation and held inside Iraq in the midst of an insurgency will be able to give a fair and universally accepted verdict.
International human rights experts insist they want the tribunal to succeed but question whether the court, as currently constituted, will be up to the task. Some argue that there is still time to move the trials to another country and operate them under an international mandate.
"I think it is going to be a challenge, I really do," said Richard Dicker, director of international justice at Human Rights Watch, an advocacy group in New York.
Dicker and other human rights experts are concerned about the decision to use the death penalty, unclear rules of evidence and what they see as the accused's inadequate access to their lawyers. They also see an overall lack of transparency in the proceedings and question whether the Iraqi judges have the experience to handle such far-reaching cases.
"There was no independent judiciary in Iraq for 30 years, and these are among the toughest legal challenges for judges and lawyers anywhere to take on," Dicker said.
The dangers faced by court personnel were shown Tuesday, when gunmen attacked and killed investigating Judge Barwez Merwani and his lawyer son Aryan outside their Baghdad home. Merwani was the first member of the tribunal to be assassinated, but a Western legal expert said court employees have faced numerous threats.
"If the judges are going to be killed if they sit in Iraq, then they've got to sit elsewhere," said Geoffrey Robertson, a British queen's counsel and expert in international justice who headed the first U.N. war crimes trial in the African nation of Sierra Leone. "You can't have justice in a war zone."
Speaking after the assassination, he said it was now plain that the new government, when it sits, must agree to move the trials out of the country and reconstitute the court as an international tribunal with U.N. sanction. "There's a narrow window of opportunity," he said.
The Iraqi Special Tribunal comprises about 35 specially appointed Iraqi judges and a workforce of 400 that includes lawyers, investigators, researchers and bodyguards. Advised at every step by U.S., British and other international lawyers, members of the tribunal have had to work behind closed doors, sifting through tons of documents and thousands of potential witnesses to address alleged crimes of the Baathist regime that took place over four decades.
The judges and staff remain largely anonymous. Even the site of the planned trials has not been announced, although officials have said privately that a special courthouse was being constructed inside one of Baghdad's high-security zones.
On Monday, the first charges prepared by the tribunal's investigating judges were referred to trial judges. They involved five of Hussein's former lieutenants, including his half-brother Barzan and former Vice President Taha Yassin Ramadan. They were accused of a series of mass killings in 1982 against an Iraqi village in central Iraq where there had been an assassination attempt on Hussein.
Other defendants believed likely to face trial soon are Hussein's cousin Ali Hassan Majid, better known as Chemical Ali, for his role in poison gas attacks against Iraq's Kurdish minority, and former Defense Minister Gen. Sultan Hashim Ahmad Jabburi Tai. Both were called to appear at preliminary hearings in December. Their testimony might be used to build the case against Hussein, whose first trial might not take place for a year.
The U.S. military transferred the 12 defendants to formal Iraqi custody June 28, the day sovereignty was given to an Iraqi interim government, but they remain under heavy guard by U.S. troops in a prison near the Baghdad airport.
Unlike the Nuremberg trials after World War II or the special tribunals for Bosnian and Rwandan war crimes, the Iraqi tribunal will not be international; it will operate under Iraqi law.
Defense lawyers allege that the tribunal, established in December 2003 by the Coalition Provisional Authority and its appointed Iraqi Governing Council, violates Geneva Convention rules that limit what occupying powers are allowed to do.
"The tribunal is illegitimate, illegal and unconstitutional, because it was established by Paul Bremer," said one of Hussein's lawyers, Khaleel Duleimi, referring to the former chief U.S. administrator.