Fair trial or sure conviction? The US cannot have both, writes Salaheddin Amer* The whole world followed with anticipation the first hearing in the trial of deposed Iraqi President Saddam Hussein. Saddam and several of his aides stand accused of killing dozens in the village of Dujail in the early 1980s. The Iraqi authorities at the time made no attempt to uncover and punish the individuals involved in an attempt to assassinate Saddam, but went instead on a killing spree in which many perished. Iraqis remain divided on what Saddam truly deserves. As the trial opened, demonstrations went out across the country, some of which calling for Saddam's blood, some cheering him as a legitimate ruler. Rights organisations and legal experts have expressed concern that the Saddam trial may lack the rigorous guarantees required in a criminal court. The Iraqi government reassures the public that the trial will be conducted with full guarantees of legality and neutrality. But the signals are less than reassuring. Iraqi President Jalal Talabani has publicly declared that the evidence against Saddam is compelling. Threats against the defence team culminated in the abduction and murder of one member of the team. The trail is being held under occupation and Saddam is still being held by the US authorities. In more than one way, the trial seems to lack objective and procedural consistency. For example, the special criminal court trying Saddam may not be legitimate. The Interim Governing Council (IGC) -- created by a decree from the civil administration of the occupation forces -- issued Decision 48 on 10 December 2003 to form a special Iraqi criminal court for crimes against humanity. The formation of the court in that manner violates Saddam's right to be tried by his natural judge. There are also doubts about the neutrality of the judges of the special court. Since the IGC is the one that formed the court, it is to be expected that the judges would be hostile to the former Iraqi regime. Further suspicions stem from the political announcement surrounding the court and the trial. The special criminal court is an aberration, as far as Iraq's legal system is concerned, and it lacks specific guarantees for neutrality and independence. The court violates Article 10 of the Universal Declaration of Human Rights, which states that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." The International Covenant on Civil and Political Rights, in Article 14, notes that "all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Moreover, the charges against Saddam are legally questionable, for they cite clauses that were not part of the Iraqi legal code in the past, such as crimes against humanity, crimes of war, and genocide. Trying the deposed president on the basis of these clauses violates the legal norm about the non-retroactive application of judicial decisions. Specifically, the legal provisions provided by Decision 48 of the IGC cannot be applied to events that took place before the issuance of that decision. It is possible to argue that the crimes cited by the court were recognised by an international treaty signed by Iraq. It is also possible to argue that the charges in question are part of the internationally binding body of law. But these arguments are controversial, simply because Saddam's trial is being held under Iraqi law, and there are no provisions in the Iraqi law to support the charges being pressed against Saddam. The legal provisions used in Saddam's trial are new to the Iraqi law, and are being enforced retroactively. Furthermore, the IGC didn't have the authority to legislate law, for that council was formed by occupation authorities. Occupation authorities have no right to legislate, and even less right to empower others to legislate. Another stumbling block facing the trial is the text of Article 40 of the interim Iraqi constitution, which gives the Iraqi president immunity of prosecution. Since Decision 48, which created the special criminal court, refers to the interim constitution, it is possible to argue that the charges against Saddam should come under the same constitution, which would give Saddam immunity of prosecution. It would be hard to argue that Decision 48, as issued by the IGC, overrules the interim constitution in one instance, but abides by it in others. One can say that immunity given to presidencies aims to facilitate their job, not to protect them in the case of crimes against humanity, but even that argument sounds controversial. As things stand Saddam's trial looks less of a fair trial than an act of revenge. The current Iraqi government and the occupation authorities will have to decide what to do about that. They can provide Saddam with a fair trial complete with neutrality and legal guarantees. Or they can hold a kangaroo trial and be done with it. * The writer is professor of international law at Cairo University.
