Judgment day for Saddam

The trial of the former dictator could be cathartic -- but it could also plunge Iraq deeper into chaos.

Published October 19, 2005 1:00PM (EDT)

When asked his age, Hadji Baki Kokoi first has to think for a minute -- back to his 37th birthday on March 16, 1988, the most important day in his life. He and his unit of Kurdish Peshmerga fighters were hiding in the mountains along the Iraq-Iran border. Around noon, the sound of combat aircraft could be heard on the Iraqi side, followed by explosions.

The first refugees began climbing up into the mountains that evening. Their eyes were swollen, and blood flowed from their noses, mouths and ears. They were coughing and vomiting, and many died along the roadside.

The provincial capital of Halabja in northern Iraq had been bombarded with poison gas, presumably a deadly mixture of mustard gas and the nerve agent sarin. Kokoi's unit waited two days before venturing down into the city to bury the dead. Kokoi, now 55, remembers every gruesome detail of the ensuing two months and seven days he spent in Halabja -- the cellars full of corpses, the fathers and mothers who had suffocated and were lying in the streets, holding their dead children in their arms, the farm animals lying dead in the fields. Haunted by these images ever since, Kokoi has finally committed these memories to paper.

Four weeks ago, Raid Juhi, investigating judge on the special tribunal in Baghdad and renowned throughout Iraq for his tough interrogation of Saddam Hussein, came to Halabja. Juhi spent several days interviewing eyewitnesses to the 1988 massacre, and before he boarded a U.S. military helicopter for the flight back to Baghdad, he issued the following instructions: Anyone -- even ordinary gravediggers like Kokoi -- should write down what they saw happen in 1988. Juhi is preparing the Halabja file, which is expected to develop into the most spectacular of the 12 segments in the massive trial against the deposed dictator and his regime.

Saddam Hussein's trial begins on Wednesday. Despite high expectations in some quarters, many doubt that it will amount to more than a show trial and are skeptical that fleshing out the past in the courts will contribute to reconciliation among Iraq's quarreling ethnic groups. Indeed, there are growing concerns that the case against the former despot could pose a serious threat to stability in postwar Iraq.

The harshest penalty

After all, the effort to pay tribute to the concept of law and order is being conducted in a country where lawlessness has become the order of the day. Nevertheless, the Saddam trial, a trial of the century that will give Iraqis the chance to settle the score with a brutal dictator and his henchmen, could indeed bring justice to the victims and serve as a warning to despots the world over. "That's the most important thing," says Ibrahim Hauramani, director of the Halabja Memorial Museum, dedicated two years ago by then United States Secretary of State Colin Powell. "We want to be able to look these criminals in the eye, to send a message to anyone who has committed similar crimes."

Saddam "deserves a harsh penalty, the harshest penalty," said President Bush, commenting on the trial, which could have political implications for the U.S. administration and its allies two and a half years after the U.S.-led invasion of Iraq. The trial will demonstrate that the controversial Iraq campaign freed the country of a murderous regime, perhaps even overshadowing the justification the United States and its allies originally claimed for invading Iraq, the mistakes of postwar planning, and the abyss into which the country has since descended. For Bush, whose Iraq policies a majority of Americans now oppose, the trial brings the hope of new support.

The U.S. government spent $75 million in preparations for the case. When the first U.S. occupation forces moved into Baghdad, they were accompanied by officials from the U.S. Department of Justice -- 50 investigators working for the Regime Crimes Liaison Office, headed by Greg Kehoe, a powerfully built attorney from Florida who had previously investigated war criminals in the Balkans. Kehoe's team of American prosecutors deposed 7,000 witnesses, while FBI agents secured 2 million documents and archaeologists and forensic experts unearthed hundreds of mass graves. Kehoe is still horrified by what he calls Iraq's "killing fields," row upon row of the corpses of women and children, all killed by a single bullet above their left ear, even murdered pregnant women. For Kehoe, one of the most haunting images was the sight of a young boy who was still holding his red and white plastic ball when he was killed. "I've been doing gravesites for a long time," says Kehoe, "but I've never seen anything like this, women and children executed for no apparent reason."

To kill or not to kill

The International Criminal Court in The Hague couldn't take on the case because, by statute, it can only try crimes committed after July 2002. The tug-of-war over a special tribunal operating under a United Nations mandate was played out like an extension of the controversy over the Iraq war. And former interim Iraqi Prime Minister Ayad Allawi's insistence that the court be allowed to impose the death penalty quickly obliterated international support for the court, support the United States wanted. U.N. Secretary General Kofi Annan forbade judges from The Hague from assisting in training the Iraqi judges, and the organization Human Rights Watch refused to turn over the evidence it had gathered against the Saddam regime.

In the end, the U.S. invented its own body, the "Iraqi Special Tribunal," a court whose rules of procedure are a controversial blend of international norms and Iraqi criminal law, including the death penalty at the gallows, which must be carried out within 30 days of the sentencing.

The rules were fine-tuned once again shortly before the trial was set to begin. Saddam Hussein, who suddenly seemed to recall having once obtained a law degree, was barred from arguing in his own defense, a move aimed at preventing the kind of grandstanding that former Yugoslav dictator Slobodan Milosevic used so extensively in his trial.

Victims' rights organizations, including the group representing the victims of the Halabja massacre, have thrown another wrench into the works for the court's Iraqi judges. They are insisting that the tribunal address the issue of the Western governments that once supported Saddam, providing his regime with weapons and intelligence. Saddam's attorneys are also anxious to call as a witness U.S. Secretary of Defense Donald Rumsfeld, who met with the dictator in 1983.

An American show trial?

The fact that this is unlikely to happen has prompted complaint -- even from Iraqi minister of justice Abdel Hussein Shandal -- that the Americans are exerting too much influence over the trial. "It seems there are lots of secrets they want to hide," Shandal said.

America's fingerprints on the court files in the Saddam case have produced yet another unwanted side effect, triggering resistance from the Sunnis who already see the trial as little more than an act of revenge for the victors. As if to bring home that point, the insurgents intensified their campaign of terror leading up to last Saturday's popular referendum over Iraq's new constitution. In a letter released by the Americans last week, Ayman al-Zawahiri, Osama bin Laden's deputy, warned the head of al-Qaida in Iraq, Abu Mussab Al-Zarqawi, to tone down his organization's brutal attacks so as not to risk losing the battle for the "hearts and minds" of Muslims.

The Iraqi legal team that will try Saddam beginning Wednesday has been housed in the Rashid Hotel in Baghdad's Green Zone, behind three-foot-high concrete barriers and not far from the presumed site of the trial, a building in the former palace complex. The names of the 49 judges and prosecutors, who are currently in Europe being prepared for the trial, have been kept secret. The murder in March of Barawiz Mahmoud al-Merwani, a member of the team of judges, after terrorists identified him underscored the need for increased security.

Last week, Der Spiegel learned that the chairman of the five-member penalty commission would be a man in his 50s with many years of experience in criminal law. Sources said he is a native of northern Iraq and was apparently recommended for the position by Kurdish leader Jalal Talabani before he was elected president in April.

"You can be sure that this judge will conduct the proceedings with great professionalism, and that he knows how to handle his information -- and possible provocations on the part of the defendant," says a former colleague. "He is known as a gentleman."

Last Thursday, presiding judge Raid Juhi announced that the tribunal will hear a total of 12 cases. The first case is fairly straightforward: Saddam and his half-brother Barzan Ibrahim al-Tikriti, former Vice President Taha Yassin Ramadan, and five other Baath Party officials will be in the dock. The case deals with the execution of 143 men and boys and the abduction of about 1,500 other inhabitants of the central Iraqi town of Dujail, where Saddam narrowly escaped an assassination attempt in July 1982 and launched a criminal trial against the town's inhabitants on the same day.

"I shit on the international community"

British television station Channel 4 dug up a film shot by Saddam's cameraman that shows the dictator standing by the side of a road selecting men for interrogation following the assassination attempt. "I am a member of our people's army," stammers one man. Another says that he was just on his way to break the fast, since it was Ramadan. Saddam's voice can be heard on the tape ordering his men to "take them aside and interrogate them." The Dujail case is unusual because it includes full documentation of Saddam's personal involvement and of the chain of command running from the top of the regime through the revolutionary tribunal to the executioners in Abu Ghraib prison.

The opposite holds true for the other major cases set to be tried after the Dujail case: the regime's expulsion of 200,000 Shiite Kurds to Iran until the early 1980s; the presumed massacre of 8,000 men and boys from the Kurdish Barzani tribe in 1983; the "Anfal" campaign against the Kurdish civilian population during the last years of the Iran-Iraq war; the repression of the Shiite uprising in 1991; and, most prominently, the poison gas attack on Halabja in 1988.

The Halabja file includes an unusual piece of evidence that directly implicates one of the most sinister figures in Saddam's regime: his cousin Ali Hassan al-Majid, known as "Chemical Ali." Ali's chilling words on a tape that was recorded in 1991 after Iraqi troops withdrew from the Kurdish city of Suleimaniya are reminiscent of Heinrich Himmler's notorious "Extermination" speech in Poznan in 1943: "I will kill them all with chemical weapons," he said. "Who will protest? The international community? I shit on the international community and on those who pay attention to it. I will not just attack them with the chemicals on one day; instead I will continue with it for 15 days."

Since his arrest in August 2003, Kurdish politicians and legal experts have argued that Majid should be tried in a Kurdish part of Iraq, not Baghdad. "At least he should be brought here one more time before he meets his fate," says Ibrahim Hauramani of the Halabja Memorial Museum. In fact, the chances that this will happen are not bad. In a few weeks, the U.S. military will open a new high-security prison not far from the city, on the site of a former military base where Majid's troops were once stationed. "This jail is not intended for ordinary criminals," says a high-ranking Kurdish official.

Intense interest in Iraq

Other Iraqis, and even the governments of neighboring countries, would also like to get their hands on Majid and his cousin Saddam. The Shiites in southern Iraq have had a score to settle with Saddam ever since he brutally suppressed their rebellion after Iraq's defeat in the 1991 Gulf War. The regimes in Kuwait City and Tehran would also like to see the former dictator stand trial in their respective countries.

Last Wednesday, the Iranian justice department filed its own charges against the Saddam regime, in which it accuses the former dictator of "crimes against humanity, genocide, violation of international law and the use of prohibited weapons." Saddam's atrocities were so extensive, said Iran's prosecutor-general, Ghorbanali Dorri-Najafabadi, "that I doubt that the special tribunal will be capable of fully dealing with them."

Dorri-Najafabadi's prediction is unlikely to come true, especially in light of the intense interest the case has generated among attorneys seeking to represent Saddam. Ever since the Americans pulled Saddam out of a hole in the ground near his home town of Tikrit 22 months ago, about 1,500 attorneys have registered for the job in Baghdad. In addition to Iraqi lawyers, the list includes prominent international jurists like Ramsey Clark, a former attorney general under President Lyndon Johnson, former French foreign minister Roland Duman, and Jacques Vergès, the "devil's advocate" who represented major terrorist Carlos and Klaus Barbie, the notorious Butcher of Lyon.

But the colorful collection of legal personalities was disbanded in early August when Saddam's daughter Raghad, who has been managing her father's defense from Amman, Jordan, fired his entire defense team, with the exception of Khalil al-Duleimi, an Iraqi attorney from Ramadi.

A recent remark by government spokesman Leith Kubba was particularly unsettling to Saddam's legal advisor, but also to the many victims of his brutal regime. According to Kubba, if the tribunal imposes the death sentence in the Dujail case, as is widely anticipated, it would have to be carried out "without further delay." This outcome would deprive many, especially the Kurds and the Shiites, of their opportunity to deal with the wounds of the past by prosecuting the dictator in court.

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This article has been provided by Der Spiegel through a special arrangement with Salon. For more from Europe's most-read newsmagazine, visit Spiegel Online at http://www.spiegel.de/international or subscribe to the daily newsletter.

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