Why Saddam’s trial is tough justice for all
Bringing Saddam Hussein to justice could prove more of a trial for his former subjects because of the decision to hold proceedings in Iraq, says a University of Sussex law expert.
The Baghdad-based trial was halted on the first day because witnesses were too scared to testify. One of the defence lawyers for a co-defendant of Saddam's was then kidnapped and murdered.
Professor of Law Craig Barker, an expert in public international law and diplomatic immunity and tutor on the Sussex Law School's LLM programme in International Criminal Law, has been following the run-up to the trial and is not surprised by how events have developed.
He says: "The problem with this trial is the fact that it is being held in Iraq, with Iraqi judges. Saddam is still an incredible figure in Iraq and the trial won't be easy for the judges or the witnesses. These people have to go home at night and face threats and danger."
Professor Barker has previously observed the processes used to bring other leaders to justice, including Chile's former dictator, Augusto Pinochet, and the former Yugoslav President Slobodan Milosevic, whose long-running trial Professor Barker attended recently at The Hague. Milosevic is being tried for genocide and war crimes under the auspices of the International War Crimes Tribunal for the former Yugoslavia (ICTY).
Iraq's non-international Special Tribunal might be looking for a speedier outcome than expected for Milosevic's trial, says Professor Barker, but America's involvement in the Iraq proceedings is fraught with problems, whatever its justification for sidestepping international law to indict Saddam.
Professor Barker says: "Americans are against the international criminal court, so went for a special tribunal in Iraq. Their argument is that it is better for someone to be tried in their home country so that the people can easily see justice at work. The problem is that any outcome will be seen as politically engineered by the U.S. There are also legal issues over Saddam's immunity from prosecution in Iraq."
Other specific problems relate to the following:
- The judges: All Iraqi - and the presiding judge is a Kurd - which raises obvious questions about impartiality. If the tribunal was international, none of the judges would be Iraqi.
- The charges: The tribunal needed to select charges that it was sure would stick. There is some sort of documentary evidence, perhaps a signed death warrant, that they feel links Saddam unequivocally to the charge of ordering the 1982 massacre of nearly 150 Shiites. Charges that aren't watertight carry risk.
- The death penalty: Saddam will be seen as a martyr to American oppression in the region. His accusers call for the death penalty, which would not be an option with an international tribunal. International lawyers have long since rejected the death penalty, but many Iraqis say that that would be the only outcome that would give them closure.
Notes for editors
Professor Barker's latest book, Desk Book of International Criminal Law (Cavendish 2005), is out soon. For interviews, comment on Saddam trial, etc, contact the University Press office. Contacts: Maggie Clune or Jacqui Bealing, tel: 01273 678 888 or email M.T.Clune@sussex.ac.uk or J.A.Bealing@sussex.ac.uk
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