Transcript: analysis of the Dujail trial.

• Author: Wierda, Marieke
• Position: Symposium: 'Lessons from the Saddam Trial'

MS. WIERDA: Our task here today is to look beyond the antics of the Dujail trial--which are well known and described in the title of this panel--and to ask ourselves some detailed questions about the trial. We must scrutinize the justice delivered by the Iraqi High Tribunal and ask whether Iraqi people are receiving the quality of justice they deserve. The challenge is to examine the trial in a way that looks at these issues objectively and from a technical rather than purely political viewpoint.

The involvement of the International Center for Transitional Justice in monitoring the trial has been extensive. My colleague, Miranda Sissons, attended numerous sessions on four separate missions to Iraq, and our Iraqi consultant attended most of the remainder. We were present for eighty-five percent of all the sessions and monitored the trial in its original language, Arabic. Prior to the trial, in 2003 we had conducted a population survey in Iraq of public expectations in regard to justice for past crimes. (1) Furthermore, an important part of our work has been to dialogue directly with the Iraqi participants in the trial. The issues that we are raising at this conference have been discussed directly and repeatedly with the Iraqi High Tribunal. Nothing that we say here would surprise them. We are grateful for the ability to have frank exchanges with them, and indeed we admire the courage of those involved in the trials.

In examining this enormously significant trial of a former head of state and his senior officials at the domestic level, we need to ask four questions. Firstly, has the trial succeeded in affirming the centrality of the rule of law in the new political order of Iraq? Secondly, has it been successful in uncovering the full extent of the system crimes that were perpetrated during the era of Saddam Hussein? Thirdly, is it demonstrating and preserving international standards of fairness, even for these unpopular defendants? I will be brief on this point since other speakers at this conference are going to address it in detail. Finally, is the trial restoring the dignity of victims or having a broader societal impact?

First, on whether the trial is reaffirming the centrality of the rule of law, I will not deal here with the issue of the legality of the tribunal's establishment. (2) That topic will surface throughout the day and is in part political, in part legal. Politically, I think the question of perception of legitimacy is not just a national issue but also a regional one. In the region, there has been a widespread (but not uniform) perception that the trial is not legitimate. For instance, I was in Khartoum a few weeks ago, where the perception of the process is that it is totally illegitimate and staged by America. This affects its ability to serve as a regional precedent.

Another factor inhibiting the ability of the trial to reaffirm centrality of the rule of law is the level of political inference. Here, one of the most negative developments has been the removal of judges serving at the Iraqi High Tribunal, or their resignation due to indirect political interference. In the Dujail trial, the five judges that started the trial were not the five judges that finished it: only two of the original bench remained. This impinges the ability of the court to hear and evaluate the totality of the evidence.

Indeed, the tribunal's very...