September 21, 2005

BAGHDAD — Iraqi legislators have changed the rules for the forthcoming trial of Saddam Hussein, preventing the deposed president from representing himself, according to documents provided to the Los Angeles Times.

Under the original rules for the trial, adopted in December 2003 when U.S. officials were running the country, Hussein was permitted "to defend himself in person or through legal assistance of his own choosing."

But under revised rules, adopted without fanfare by the transitional Iraqi National Assembly on Aug. 11, Hussein only has the right "to procure legal counsel of his choosing." The same change applies to other defendants whose special trials, along with Hussein's, are scheduled to begin in mid-October.

The new rules may alleviate the widespread concern among Iraqi and U.S. officials that Hussein could have used his right of self-representation to grandstand and spout political propaganda.

The National Assembly made the rule changes when it restated the tribunal's statute, a formality designed to legitimize under Iraqi law what had been a U.S. creation.

The assembly's dominant Shiite Muslim bloc managed to push through the revised statute quietly, avoiding debate on a controversial provision that would bar the tribunal from including judges who belonged to Hussein's Sunni-dominated Baath Party.

Nineteen judges on the tribunal are said to have been Baathists, though not leaders of the former ruling party. Iraqi President Jalal Talabani, a Kurd, recently thwarted an effort to purge those justices from the court, but Shiite legislators wanted a legal basis to do so in the future.

Michael P. Scharf, who is director of the International Law Center at Case Western Reserve University School of Law in Cleveland and who has worked to train Iraqi judges for the tribunal, said he thought the self-representation change was a positive development.

He said it would help alleviate the kind of problems that had arisen in the lengthy war crimes trial of former Yugoslav President Slobodan Milosevic at The Hague. Scharf said that Milosevic's ability to represent himself had enabled him "to transform the trial into a stage for his national propaganda."

Dan Senor, who was spokesman for the U.S.-led Coalition Provisional Authority when it set up the tribunal before turning power over to an Iraqi government last year, agreed.

"When he is asked a question, he cannot just filibuster," Senor said. "There is a mechanism that allows the judge to cut him off and move on immediately to the next set of questions."

However, Richard Dicker, who heads the International Justice Program at Human Rights Watch in New York and has spent considerable time in Iraq investigating human rights violations during Hussein's rule, criticized the changes.

He acknowledged that there were legitimate concerns about "political grandstanding" but said the Iraqi legislature had used inappropriate means to address the problem.

"This is like using a sledgehammer to go after a fly," Dicker said. "The appropriate way to deal with this is for the judges to conduct the proceedings in a way that keeps the trial focused on the charges before the tribunal."

Dicker said he and other Human Rights Watch officials were also disappointed that changes they recommended to make the Iraqi tribunal's procedures "more consistent with basic due process guarantees" had not been adopted by the Iraqi legislature.

The assembly also has renamed the panel the Iraqi High Criminal Court. Scharf said he thought this change was made because the old name, the Iraqi Special Tribunal, "sounded too much like the special security tribunals that Saddam Hussein had implemented to repress opposition."

The decision to deny Hussein the right to self-defense, a right codified in international law, is one of several ways the Iraqi trial will differ from the growing body of protocols in international criminal tribunals.

For example, the International War Crimes Tribunal for the Former Yugoslavia and a similar court for the crimes committed in Rwanda were seated outside the two countries to prevent the trials from causing further political unrest or being influenced by local politics. Those tribunals, along with the Special Court for Sierra Leone, which is located in that country, rely on international human rights law and judges from other countries.

With support and encouragement from the Bush administration, which has provided dozens of American lawyers and forensic experts to assist the prosecution, Iraqi authorities rejected proposals to try Hussein abroad, or in Iraq by a court made up in part of international jurists.

Instead, the U.S. civilian administration, the former Coalition Provisional Authority, helped Iraqis set up their own U.S.-funded court, arguing that Iraqi judges were willing and able to bring the former dictator to justice under a mixture of Iraqi and international law.

Raid Juhi, the tribunal's chief investigative judge, underscored that sentiment in comments to reporters in July when he formally referred the charges against Hussein to a panel of five judges.

"The Iraqi people and the victims of the former regime are looking forward to having the accused stand trial after months of painstaking investigation," the judge declared.

Rejecting the argument that an international tribunal would be more impartial, Juhi said he had amassed a body of "evidence that is consistent with the civilized, international standards that have been set for the tribunal."

The trial scheduled to begin Oct. 19 may be just the first of a dozen or more the former president could face.

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Weinstein reported from Los Angeles and Boudreaux from Baghdad.