Saddam trial a legal travesty

More rudimentarily, the illegal US invasion of Iraq raises the question of the legitimacy of the court itself. Writing in the Al-Ahram Weekly in February, one of Hussein's defence team, Curtis Doebbler, commented: "[B]efore any members of the Iraqi government headed by Iraqi President Saddam Hussein can stand trial, a determination should be made about the legality of the United States' use of force against the Iraqi people. To put the leaders of the Iraqi people on trial when the aggressors against the Iraqis are not held responsible for their actions is the worst kind of vengeance. It is vengeance based on a violation of international law and mocking the rule of law in a manner that will damage it severely for decades to come."

"We have grave concerns that the court will not ensure fair trial," said Richard Dicker, director of HRW's International Justice Programme as the court opened its doors on October 19 morning. "To ensure justice and its own legitimacy, the court must fix these deficiencies."

To prepare the case against Hussein and other Baathists began from the beginning by a liaison office made up of lawyers and advisers from the US, Britain, and Australia -- all countries whose governments are themselves guilty of war crimes for the 2003 invasion and following occupation. $138 million from Washington funds the SICT.

The basic law under which Saddam is being tried was written under the supervision of US-led Coalition Provisional Authority (CPA).

The Baathist regime under the dictatorship of Saddam Hussein has many grisly crimes against the Iraqi people to answer for. However, the proceedings are a show trial, maneuvering to have the former dictator swiftly sentenced to death and executed. The purpose is not justice, but to obscure the complicity of the US, Britain, and other major powers in many of Hussein's atrocities.

Saddam's prosecution is only for 19 charges about the massacre of some 150 people in the village of Dujail in 1982. On July 8, 1982, several of Dawa's gunslingers attempted to assassinate Hussein by firing on his motorcade as it passed through the area. The members of the Shiite fundamentalist Da'awa organisation -- the party of the current Iraqi Prime Minister Ibrahim al-Jaafari -- failed to murder Saddam.

The Hussein regime ruthlessly cracked down on Dujail to try to intimidate the Shiite population and the Dawa Party, which engaged in anti-government guerrilla attacks.

The Dujail massacre is meticulously chosen, instead of other Baathist crimes that were encouraged or sanctioned by the major powers. These include the slaughter of Iraqi Communist Party members in 1979, the murder of thousands of Shiites in the lead-up to the 1980 US-backed Iraqi invasion of Iran, the use of Western-supplied chemical weapons against Iranian troops and civilians during the 1980-88 Iran-Iraq war, the pogroms against the Kurdish population in the late 1980s, and the butchery of tens of thousands of Shiites and Kurds following the 1991 Gulf War.

The frame-up of Hussein prosecution is to prevent any repetition of the current trial of former Yugoslav leader Slobodan Milosevic, in the UN-run International Criminal Tribunal.

Milosevic, over the past four years, has used his trial to document the conspiracies of the major powers in arousing the ethnic conflicts that tore apart the Balkan region and to expose the criminality of the NATO attack on Yugoslavia in 1999. The trial has become, to put it mildly, an embarrassment for the prosecutors.

The Bush administration knows that, like former Yugoslav president Slobodan Milosevic, Saddam could use his trial to embarrass the US. He is, for instance, intimately familiar with the two visits of the then presidential envoy Donald Rumsfeld to Baghdad in 1983 and 1984 to cement US ties with the dictatorship, despite Iraq's use of chemical weapons.

Beside, he is also aware of the military backing the US provided to Iraq during the war with Iran, and of details of European companies and US that aided in Iraqi chemical and biological weapons programmes. These political minefields are among the reasons Washington has insisted the trial remain under firm US control in Baghdad, rather than at the International Criminal Court in the Hague.

Prime Minister Jaafari declared the trial was not a "research project." All the judges had to decide, he stressed, was: "Has this man committed crimes?" And to do so quickly.

Article 30(b) of the SICT statute dictates that a death sentence must be carried out within 30 days of appeals being exhausted.

On October 16, US-based Human Rights Watch (HRW) drew attention to this article in a lengthy critique of the Hussein trial. The sentencing stipulation, it noted, "creates the possibility that a person charged in several cases can be tried, convicted, and executed for one of those cases, before any other cases are subject to public trial, and as such is likely to deprive victims, witnesses and the Iraqi people as a whole of the opportunity to conclusively establish which individuals were legally responsible for some of the worst human rights violations in Iraq's history. The execution of convicted individuals while other charges are pending against them means that there may never be a public accounting of the evidence for and against them in relation to these events."

In December 2003, HRW prepared a document suggesting many areas of the Special Tribunal's statute failed to meet the standards set by international law. It does not guarantee the presiding judges are independent and unbiased, or have the necessary experience to hear complex human rights cases. It does not rule out confessions brought by torture, guarantee the right to remain silent or ensure that guilt has to be proven beyond reasonable doubt.

In addition, the memorandum to the IRC last December, by the US-based Human Rights Watch (HRW) cautiously questioned the tribunal's legitimacy and suggested many amendments to its statute to bring it into line with international law. Neither the IRC nor the US occupation authorities took any notice of the letter. Summing up its objections in January, HRW concluded the US had "failed to articulate any basis in international humanitarian law by which the tribunal could be established" and criticised its drafting as "highly secretive without any opportunity for broad consultation or public comment."

Hussein's defence team, which claims to have had far too little time to prepare its case.

"If this was a regular murder trial at the Old Bailey in London, the defence would have had been granted six months to prepare," one of Hussein's lawyers, Abdel al Haq al-Ani, told Reuters on the opening day. "The Americans are intent on making this pure theatre, a show trial," he added.

Saddam's lawyer Khalil al-Dulaimi has made clear in press statements the central thrust of the legal defence will be a rejection of the court's legitimacy. He plans to demand adjourning the entire trial while a motion to dismiss the case is prepared.

However, Washington insists that the court meets international standards, as White House spokesperson Scott McClellan said: "They have established the basic standards that you would expect of international law."

Nevertheless, in a report released last weekend, HRW said the tribunal's procedures fell short of international standards. The judges, for example, will be able to convict Hussein if they are merely "satisfied" by the evidence, as opposed to their being convinced beyond a reasonable doubt.

International Human Rights groups had urged Washington to ask the U.N. Security Council to set up an international court to try Saddam similar to the one at the Hague that is trying former Yugoslav President Slobodan Milosevic, or at least, a mixed Iraqi-international court similar to the one now working in Sierra Leone.

No current international tribunal allows a death sentence. Not only does Iraqi law allow such a sentence for different crimes, but once a death penalty sentence is pronounced, it must be carried out within 30 days of the final appeal, a provision that raises at least the possibility that Saddam Hussein may be executed before other cases are heard.

The Hussein trial is shaping up to be another political debacle for the Bush administration and the US occupation of Iraq.

Billy I Ahmed is a researcher.