WASHINGTON—The rules of evidence are still being written. There's no witness protection program. Forget impartial judges—the violent insurgency in Iraq has made it difficult to find them at all. And those who have been recruited are so fearful of retribution that their identities are being shielded.
The fledgling Iraqi Special Tribunal is facing an uphill climb as it prepares to try and convict Saddam Hussein of war crimes and genocide from his more than two decades in power.
"There are enormous obstacles confronting this tribunal," said Richard Dicker, the head of the International Justice Program for the New York-based Human Rights Watch.
"This is a country that's really never had an independent judiciary and we're asking them to go from zero to 60 in a second," Dicker said. "You can't just run a few training sessions and expect them to be able to handle a case of this magnitude and complexity."
By comparison, the war crimes trial in The Hague against former Yugoslav President Slobodan Milosevic has been under way for more than two years and has involved mountains of evidence and a crack team of prosecutors.
But Ruth Wedgwood, of the Johns Hopkins School for Advanced International Studies, said that trial has dragged on largely because Milosevic has been allowed to act as his own attorney and has turned his prosecution into a political showcase.
"The same could happen with Saddam," Wedgwood said. "They have to be careful of turning this into a circus ... and allowing him to use his trial to rally his supporters and intimidate witnesses."
The Iraqi tribunal is unique in that it'll be run by Iraqi judges who are relying heavily on American lawyers' expertise and on investigators training them in such basics as forensics and case preparation.
Most tribunals that have been assembled in recent years to deal with human rights abuses in troubled corners of the world, such as Bosnia, Rwanda and Sierra Leone, have either been handled by the United Nations' International War Crimes Tribunal in The Hague or have relied heavily on the United Nations or international judges for help.
Human rights groups worry that the Iraqi tribunal may fail to adhere to international standards of fairness. They point to Saddam's first court appearance Thursday without a lawyer at his side.
And U.S. involvement could effectively taint the outcome in the eyes of the Arab world, making the tribunal appear to be little more than a puppet for Americans, legal experts warned.
Saddam laid out a coherent legal defense at his court appearance Thursday, arguing that he had immunity from prosecution because he was the leader of a sovereign state. Such a tactic had been tried and rejected over the years, legal experts said.
Since the Nuremberg trials after World War II, leaders have been held responsible for atrocities they committed as heads of state.
"When you're talking about mass murder and the forced disappearance of hundreds of thousands of people, one's status as a head of state becomes legally irrelevant," Dicker said.
Recent "command and control" changes to international law make it unnecessary to prove that Saddam specifically issued an order to gas the Kurds, for instance. Prosecutors must now prove that either he knew or should have known about such activities by his subordinates and that he did nothing to stop them, international lawyers said.
"These cases are not so hard to prove as some think," Wedgwood said.
Still, the cases often move at a glacial pace.
Gen. Augusto Pinochet was accused of mass murders when he ruled Chile for 17 years starting in the 1970s. Pinochet argued that his status as the nation's former leader made him immune to prosecution. An appeals court in Chile last month stripped Pinochet of immunity, setting the stage for the 88-year-old retired general to possibly face trial more than three decades after he came to power in a bloody coup.
In Iraq, the stakes are high.
"People are anxious to see if the new Iraq is different than the old Iraq," said Fiona McKay, the director of the international justice program at Human Rights First. "This will send many people a strong signal one way or the other."
(c) 2004, Knight Ridder/Tribune Information Services.