When dealing with Nazi war criminals, Winston Churchill said, firing squads, not tribunals, were the appropriate remedy. But that is not what Saddam will face.
“I am sure there’ll be a whole squad of attorneys to defend him,” said Kenneth Anderson, a fellow at the Hoover Institute at Stanford University and an expert in international law.
And that’s what the U.S. government hopes, Anderson added. Above all, the United States wants the world to see that skilled lawyers oversaw Saddam’s interests during a fair and serious trial, he said.
“The Iraqi war crimes tribunal — being advised by America — is going to make sure the trial is done in a very open, very, very defendant-friendly way, so nobody doubts the vast amount of proof of the thousands of victims” of Saddam’s reign, Anderson said. “There will be every incentive to make it look like a model trial.”
What’s in it for a lawyer? Never underestimate the attraction of fame, said Harry Reicher, a professor of international law at the University of Pennsylvania.
“I could mention a few U.S. defense attorneys who would bust a gut to defend him,” Reicher said, and then declined to do so. “There’s no such thing as bad publicity. And it can only be good for business.”
Anderson disagreed with the idea that attorneys such as Johnnie Cochran or Alan Dershowitz would be hopping the next red-eye to Baghdad. “This is not an O.J.-type case,” Anderson said, referring to O.J. Simpson. “Hussein has no U.S. constituency, and nobody looks at him and thinks he’s innocent.”
Anderson said Iraqi lawyers probably would have an important role in the case, although he guessed that U.S. military lawyers might be part of the team, to assure expertise in international and military law. Saddam’s daughter said she was prepared to pay any amount to assure a strong defense for her father.
Whoever the Iraqi attorneys are, they had better be on record as being anti-Saddam, or they could risk assassination by relatives of the estimated hundreds of thousands of Saddam’s alleged victims, experts say.
In preparing a case, defense attorneys would have to address Saddam’s three major alleged crimes, Reicher said: large-scale murder and torture; genocide (murder with intent to destroy a group of people, such as the Kurds); and war crimes — for example, violations of the rules of war in Kuwait.
Then there is Saddam’s reputation for viciousness. A less likable client would be hard to conjure up, said Daniel Dodson, a Missouri criminal defense lawyer.
“Still, almost every criminal defense lawyer defends someone who all the public believes is guilty and a truly bad person,” Dodson said. “A lawyer can put that aside, and look for anything to make the client look sympathetic, and cast doubt on the evidence.”
Admittedly, it would be monumentally difficult to beat the prosecution, said John Cerone, a law professor and a member of the War Crimes Research Office in Washington. So Saddam’s attorneys probably would attack the legitimacy of the Iraqi tribunal. A Saddam lawyer could argue that his client belongs in an international court that does not recognize the death penalty, Anderson said.
This is what another former dictator, Slobodan Milosevic, has been doing at the Yugoslav war tribunal — while serving as his own attorney — Cerone said.
Although the U.S.-backed coalition authority has suspended the death penalty in Iraq, it could be brought back after sovereignty is restored July 1.
Another defense tactic might be to attack the link between Saddam and the atrocities he is accused of ordering, said Mark Vlasic, a former prosecutor of Milosevic in Belgrade.