Will Saddam get a fair trial?

A leading rights group has warned that the special Iraqi tribunal set up with United States sponsorship to try Saddam Hussein may not be able to give the former dictator and his top aides a fair trial.

Saddam, now 68, will be in on court on Wednesday along with three former top lieutenants and four regional officials of his Ba’ath Party.

The men are accused of killing 143 people from the Shi’ite village of Dujail in 1982, allegedly as revenge for an attempt on Saddam’s life, in the first of a series of trials for crimes against humanity and war crimes.

Saddam is also likely to face charges for much larger atrocities, including the gassing of 5 000 Kurds in March 1988; the slaughter of Shi’ites during a 1991 uprising; and the 1980-1988 Iran-Iraq war, during which about one million people were killed.

Yet the controversial legality of the special tribunal, set up especially to try crimes against humanity, war crimes and charges of genocide committed between July 1968—when Saddam’s Ba’ath party came to power—and May 2003, when he was ousted, may undermine the legitimacy of any trial outcome.

The tribunal was set up in December 2003 by the US-dominated coalition provisional authority (CPA). The Parliament elected in January this year is due to legitimise the court and rename it the Iraqi Higher Criminal Court.

The tribunal will use a mixture of Iraqi law and international law to try the accused.

Shortcomings

The New York-based Human Rights Watch, however, is not convinced it can be a fair forum, and has issued an 18-page report detailing the tribunal’s shortcomings.

“From an early stage, the US consistently opposed an international tribunal or mixed Iraqi-international court under United Nations auspices” that would have given the process more legitimacy, the rights group wrote.

The CPA “insisted on an ‘Iraqi-led’ process—without establishing a transparent process to consult Iraqis or assess Iraqi attitudes towards issues of justice and accountability”, the report reads.

The rights group, which documented atrocities committed during Saddam’s decades in power, worries that evidence was not protected following Saddam’s downfall in April 2003 after the US-led invasion and has been compromised.

Mass graves were dug up with heavy equipment by relatives desperate to find remains of their loved ones, and key documents went missing in the chaotic days after Saddam’s fall.

Saddam’s Iraqi defence lawyer Khalil Dulaimi has said he will argue that his client is still the country’s legitimate president.

“The tactic is to question the legitimacy of the invasion,” said Michael Kelly, a US specialist in international law at Creighton University.

“Putting the invasion on trial is a clever approach,” Kelly said, even though he said it will be “an uphill battle”.

Iraqi-born barrister Abdul Haq al-Ani, who has reportedly been working in cooperation with Dulaimi, has said the defence will also argue that Saddam as head of state enjoys full immunity.

First day

The former dictator’s first day in court will be for the Dujail accusations in part because of the strong evidence accumulated in the case, wrote Michael Scharf, a US law professor who helped train judges on the Iraqi special tribunal.

“It makes a lot of sense to begin with a ... less complex case because it will enable the tribunal to focus on the broad legal challenges to the process which are brought by the defense,” wrote Scharf in a legal internet blog following the trial.

Once these are addressed, it will prevent the defence “from re-litigating them in subsequent trials,” enabling the judges “to focus entirely on the facts and legal complexities of those more difficult cases”, Scharf wrote.

In any case, the trial is likely to be adjourned for weeks, perhaps into next year, after Saddam and his co-defendants make an initial appearance on Wednesday.—Sapa-AFP

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