Saddam Hussein may already have been convicted in the court of international public opinion for crimes against the Iraqi people, but more will be needed to get a guilty verdict from an Iraqi court – and DNA evidence may be the key.
Analysts say prosecutors should have ample evidence when Saddam goes to trial, pointing to dramatic advances in DNA technology as a prosecutorial tool in recent years. They say DNA will help to clearly establish the identity of many of Saddam’s victims who ended up in the country’s mass graves.
The process has been used widely in the former Yugoslavia, especially Bosnia, where DNA has helped identify about 7,000 missing victims of the war there a decade ago – and helped the war crimes tribunal for the former Yugoslavia in pursuing perpetrators.
Identifying victims is a grisly business. Their remains must be carefully exhumed, and the bones ground to extract the genetic code. Blood samplings help match the victim and the family. All this permits a dignified burial of long-lost loved ones and helps grieving families achieve closure.
Overseeing the process in the former Yugoslavia has been the International Commission on Missing Persons, a product of the 1995 agreement that ended the Bosnian conflict. Over the next two years, the commission will turn over its duties to a local authority.
It is now facing a much larger challenge: Iraq, home to about 270 mass graves that are gruesome testimony to Saddam’s rule. Iraq’s minister for human rights, Bakhtiar Amin, estimates the number of dead at 1.2 million. Other estimates are smaller.
As in Bosnia, the ICMP’s role will be humanitarian: matching victims with family members. But James Kimsey, a founder of the Internet service provider America Online who is the American commissioner on the 13-nation group, says the ICMP is ready to cooperate with judicial authorities in the trials of Saddam and of subordinates also under indictment.
Kimsey, a Vietnam veteran, says Saddam can be counted on to have a crack team of lawyers. Nothing short of “Nuremberg-type” evidence will make convictions more likely, he says, referring to the German city where Nazi war criminals were tried after the Second World War.
Obviously, more than powerful evidence is needed for a credible trial. Michael Scharf, of Case Western Reserve University, lists other prerequisites: “Fair procedures, judges who can make fair decisions and what lawyers call ‘equality of arms,’ meaning that the calibre of the defence team measures up to the ability of the prosecutors.”
He says convicting Saddam of some crimes could be difficult, a point acknowledged by Iraqi judges. “The defense might argue that the prosecution can’t prove that Hussein had the intent to commit certain crimes or a clear, direct connection with those crimes,” Scharf says. The trials for Saddam and his colleagues are still months away.
ICMP’s mandate currently extends only to exhumations in the former Yugoslavia. Kimsey met last week with US Secretary of State Colin Powell to discuss a revision of the ICMP charter to allow the group to operate in Iraq and elsewhere.
Iraqi officials have gone to Bosnia to see what ICMP has done there. The commission is organising an international conference, probably in Jordan in early 2005, after Iraqis elect a national assembly that will choose a president and write a constitution.
At the conference, Iraqi officials will discuss how ICMP should proceed. With Iraq in the midst of a brutal insurgency, a key goal is to provide security for the exhumations.
Kimsey’s chief of staff, Peter Kirsch, calls ICMP’s mission in Iraq perhaps “the single most important way to begin the process of closure of the Saddam era”.
Kirsch says there is an unstated bond among Americans, Bosnians, Iraqis and others who have family members unaccounted for as a result of conflict or tyranny. Amin, the Iraqi human rights minister, agrees. “The pain and suffering of the families of the disappeared are very similar,” he says. “They have common tears, no matter where they come from.”