Analysis: Putting Saddam on trial

by Paul Reynolds, BBC News
December 15th, 2003

The Iraqi Governing Council intends to put Saddam Hussein on trial by an Iraqi court.
It is determined to resist calls for an international tribunal and has won support from the main occupying powers, the United States and Britain.
Only last week the Council announced that a special tribunal would be set up in Iraq to try former members of the Baathist regime.
Saddam Hussein could face the death penalty. It has been suspended by the occupation authorities but could be reinstated by an Iraqi government.
An interim government with legislative powers is due to take over by the end of June next year.
"He could be executed on 1 July," said Mouwafak al-Rabii, a member of the Council who wants a trial to start "very soon, in the next few weeks."
Other Council members said that a trial would take longer to organise.

International tribunal unlikely
President Bush said that Iraqis needed to be involved. "I have my own views. What matters are the views of Iraqi citizens."
He said that any trial process would have to be in public and "stand international scrutiny."
Britain, while against the death penalty in principle, seems to have decided not to make an issue of it in this case.
The Prime Minister Tony Blair told the House of Commons that it was up to Iraq to decide how to try Saddam Hussein and what penalties to impose. He called for an "independent and fair process" and said that the Iraqis had the "capability of doing that."
Recourse to a UN mandated tribunal of the kind trying the former Yugoslav President Slobodan Milosovic is therefore unlikely. So is recourse to the new International Criminal Court. For one thing, its jurisdiction is not backdated to the time when the major alleged crimes committed by Saddam Hussein took place.

Geneva Protections
In the meantime, the US Defence Secretary Donald Rumsfeld has said that the former Iraqi leader will be "accorded the protections of a prisoner of war and his treatment will be governed by the Geneva Convention."
This means that he is not regarded as an actual prisoner of war. Not that he would thereby escape prosecution for war crimes. All parties to the Conventions are required to try suspected war criminals either in their own courts or in those of another party, as Article 129 of the Third Convention states.
The protections demanded by the Geneva Conventions are summed up in Article 13 of the Third Convention:
"Prisoners must at all times be protected, particularly against acts of violence and intimidation and against insults and public curiosity."
The last prohibition is often taken to mean that no television pictures of prisoners should be taken. This provision is not clear, however, and the US presumably did not consider it relevant when Saddam Hussein was pictured having his medical examination after capture.
The Americans will also try to question their prisoner. The Geneva Convention would not permit pressure to be put upon him.

Special tribunal

The special Iraqi court will be staffed by Iraqis. Judges will be appointed by the Governing Council. Five judges will try each case. It will be a civilian court. Defendants will have lawyers. The trials will be open. There will be an appeal court.
"This court will try cases of genocide, crimes against humanity and war crimes committed from 17 July 1968 (when Saddam took power) until 1 May 2003 ( when he lost power)," said Council member Abdul al-Aziz al-Hakim.
"We want to ensure this is not seen as a tribunal for revenge," he said.
The tribunal will look at the campaign against the Kurds in the 1980s ( including the use of poison gas at Halabja); the suppression of revolts by Kurds and Shias after the first Gulf War; the brutality against the Marsh Arabs; and crimes committed during the wars against Iran and Kuwait.
South African judge Richard Goldstone, who served as prosecutor in the war crimes trials for the former Yugoslavia and Rwanda, told the BBC that he approved of the trial being held in Iraq but said that international observers should be present.

Human rights concerns

Some human rights groups expressed concern that an Iraqi court might not be fair.
"Iraqis rightly insist that trials for past atrocities are of the utmost importance," said Richard Dicker of Human Rights Watch. "But any tribunal set up to try these crimes should be fair and effective. Justice must be done and be seen to be done."
Human Rights Watch questioned whether Iraqi judges had the right experience and said that the new procedure did not allow for non-Iraqi prosecutors or investigating judges.
Any tribunal set up to try these crimes should be fair and effective

Human Rights Watch

Of the 55 original "high value" targets sought by the coalition, 40 are now in custody and might therefore be subject to the trial procedures.

Iranian call

Iran has called for an international tribunal to try the former Iraqi leader, who launched a war against Iran in 1980.
However, part of the Iranian agenda could be seen in a statement from the government spokesman Abdullah Ramazanzadeh who said that the tribunal "should determine who equipped this dictator to disrupt our region and impose three big crises on our region."
This presumably is a reference to the role played by Western countries, including the United States, in equipping and supporting Saddam Hussein.