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Saddam's trial risks delivering a dubious justice
by Michael Byers
Description: Saddam's trial risks delivering a dubious justice says Michael Byers
Date: 19 June 2005
Author:
Source: Financial Times, London Edition, p15
Two different trials will soon begin in Baghdad. In the Iraqi Special
Tribunal, Saddam Hussein faces 12 charges connected with the use of
chemical weapons against the Kurds, the invasion of Kuwait and the brutal
repression of Iraq's Shia. And the tribunal is itself under scrutiny, to
determine whether it meets international standards of justice and due
process.

Iraq is at present governed by the Transitional National Assembly. The
result of a democratic election in January that was authorised by the
United Nations Security Council, the assembly has every right to try Mr
Hussein. Its jurisdiction is uncontested: most of Mr Hussein's alleged
crimes were committed on Iraqi territory and would be illegal in any legal
system. As the sovereign authority in Iraq, the assembly can also waive any
immunity the former president might try to claim.

The Iraqi Special Tribunal, however, was born in dubious circumstances. It
was established, and its judges selected, by Paul Bremer and his
US-appointed Iraqi Governing Council prior to Iraq's regaining of
sovereignty in June 2004. Washington still funds the tribunal, the Federal
Bureau of Intelligence helps gather evidence and US lawyers work with the
prosecution.

The tribunal's statute and rules do not require that guilt be established
'beyond a reasonable doubt', the standard set by international human rights
law and applied in all developed countries. Instead, the judges need only
be 'satisfied' of guilt. Human rights organisations are also concerned
about the admissibility of statements extracted through torture and the
lack of access to defence lawyers during an investigation's early stages.
When Mr Hussein first appeared before the tribunal last year to have
charges read against him, no defence counsel was allowed in the courtroom.

Mr Hussein has already suffered legal prejudice. Iraqi ministers have
repeatedly stated that he is guilty and must be promptly put to death.
Shortly after Mr Hussein's capture, George W. Bush, the US president, said:
'He is a torturer, a murderer, and they had rape rooms, and this is a
disgusting tyrant who deserves justice, the ultimate justice.' Statements
such as these violate the presumption of innocence.
Last month, two tabloid newspapers published photographs of Mr Hussein in
his underpants. The pictures, which must have been taken by US soldiers,
violated his international human rights as well as the Geneva conventions,
which protect prisoners from being subjected to 'public curiosity'.

As Mr Bush indicated, Mr Hussein will probably face the death penalty if
convicted. This has prevented the UN from providing much needed technical
assistance. Most countries are committed by treaty to abstain from capital
punishment and not to extradite suspects who may be executed if transferred
abroad. International courts, including the International Criminal Tribunal
for the Former Yugoslavia, where Slobodan Milosevic is being tried, cannot
sentence people to death.

The death penalty also creates a moral dilemma for Human Rights Watch. For
more than a decade, the international human rights organisation has
compiled evidence of atrocities committed during Mr Hussein's regime. This
evidence could ensure a conviction but it could also lead to a punishment
that the campaigners oppose.

As Mr Hussein's trial approaches, difficult questions must be asked. Is the
investigation being conducted with sufficient care and diligence, so that
all the evidence collected can be used? Are defence lawyers present during in
terrogations? Will the trial unfold in a way that allows lawyers from
both sidesB- sufficient time to call witnesses and make arguments fully?
Will the proceedings be open to the media, including media organisations
from the Middle East? And will the judges apply international standards of justice and due process, instead of the lower thresholds allowed under the tribunal's statute and rules?

By providing due process to those accused of the most heinous crimes,
societies demonstrate their adherence to the rule of law. Establishing Mr
Hussein's guilt fully and in accordance with the highest standards makes
sense in terms of policy, too, in that an evidently fair trial might help
to sway those who are predisposed to sympathise with him. The trial needs
to satisfy Arab, more than western, opinion.

The judges who try Mr Hussein must apply stringent international standards. Justice will be done. But it must also be seen to be done.

The writer teaches politics and international law at the University of
British Columbia in Vancouver. He is the author of War Law (Atlantic Books)
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