Can substantiating the charges against Saddam Hussein require more time than the deposed Iraqi leader is likely to live, asks Mohamed Sid-Ahmed In the first step towards his trial, which is scheduled to begin in 2005, Saddam Hussein was arraigned last week before an Iraqi judge setting the tone for what is certain to be a long and controversial proceeding, he referred to himself repeatedly as the president of Iraq, questioned the legitimacy of the hearing and challenged the jurisdiction of the judge. Of the seven preliminary charges against him, the most important are the 1990 invasion of Kuwait, the 1991 suppression of the Shia uprising and the 1988 gassing of Kurdish villagers in Halabja. Curiously, there is no mention of the two accusations initially levelled against him by Washington and London to justify their war on Iraq: one, that he had developed a deadly arsenal of weapons of mass destruction and, two, that he had close links with Al-Qaeda. Despite the best efforts of the UN weapons inspectors and, later, of the coalition forces, no WMD were discovered, while frantic post-9/11 attempts to establish a link between the regime of Saddam Hussein and the terrorist organisation headed by Osama Bin Laden have all been unsuccessful. In the absence of hard evidence to substantiate these two charges, Tony Blair seized on the discovery of 250 mass graves in Iraq to argue that the world should welcome the removal of a bloody tyrant who subjected his people to a reign of terror. But shocking as the discovery is, that argument opens a whole can of worms. If we proceed from the logic that the leaders of non- (or quasi-) democratic states can be arrested for the crimes they commit against their own people, we would destroy the whole set-up of sovereignty in those states and engender chaos in the world system as a whole. It is no accident that wide segments of the pan-nationalist Arab media avoid using the expression "the deposed Iraqi president" to describe the status of Saddam Hussein, referring to him instead as "the captive Iraqi president". The distinction is important: the word "deposed" carries within it a value judgment, an implication that he committed crimes justifying his removal, while the word "captive" is a straightforward description of his current status that does not touch on the question of his guilt or innocence. At the hearing, Saddam asked the judge whether he would be tried according to the laws he himself had enacted. In asserting his status as president of Iraq, he said, he was honouring the will of the Iraqi people who had elected him as their leader. He denounced the court as an illegitimate forum set up by forreign occupying forces, and upbraided the judge for taking part in what he called "a theatrical comedy" staged by US President Bush in an attempt to win the election. It is no secret that although the trial will be conducted by an all-Iraqi court the US will maintain a tight control over the proceedings. The man leading the work of the tribunal is Salem Chalabi, the nephew of Saddam's fierce enemy, Ahmed Chalabi, who was, until recently, Washington's favourite Iraqi and the recipient of a monthly stipend of $340,000. Whether we like it or not, Saddam Hussein is still the only person who enjoys a legitimate status in Iraq. All the other leaders derive their authority from the occupation power, not under a popular mandate from the people of Iraq. It is said that the new prime minister, Iyad Alawi, had a lot of trouble convincing the Americans to hand Saddam over to the Iraqis. They reluctantly agreed when they realised that their refusal would seriously damage Alawi's credibility and prestige. Acquiring legal custody of Saddam is the barometer of Alawi's authority, who managed to convince Washington that refusing to deliver Saddam would expose him as a puppet in the hands of the occupying power. Washington may also have been swayed by a statement issued by the International Red Cross warning that the US would be violating international law if it kept Saddam in its custody after the new Iraqi authority was created. Unlike the defendants tried under international law in the war crimes tribunals set up by the UN in the case of Yugoslavia and Rwanda, Saddam will be subject to Iraqi criminal law. But the extent to which the US intervenes in the proceedings is an open question. What is certain is that Saddam will remain under the physical custody of the American military for as long as the Iraqi police will not have found a place suitable for his detention. This can be a long way ahead. The new Iraqi government has been given legal custody not only of Saddam Hussein but of 11 of his top associates, including former Deputy Prime Minister Tarek Aziz, Ali Hassan Al-Majid known as "Chemical Ali", former Vice-President Taha Yassin Ramadan and two of Saddam's half-brothers. The US would like to limit the number of accused to be turned over to trial to avoid antagonising Iraq's Sunni community. To compensate for that a procedure similar to that of "Credibility and Reconciliation" which was tested in South Africa after the end of apartheid, is expected to be introduced, thus rehabilitating the victims of the crimes that have been perpetrated. The new Iraqi government has decided to reinstate the death penalty, which was suspended throughout the period of the interim authority. French lawyer Emmanuel Ludot, one of Saddam's 20-strong team of international defence lawyers, described the court as bent "on vengeance a settling of scores" and said any judge sitting in the court would be under pressure to find his client guilty. Another French member of the defence team, Jacques Verges, is expected to call US Defense Secretary Donald Rumsfeld as a witness to establish US complicity in Iraq's use of poison gas during the 1980-1988 Iran-Iraq war. The first task facing the legal teams is to examine thousands of documents obtained after the downfall of the Saddam regime which are said to include details of crimes committed by the regime in the 1980s. An organisation called Indict, based in London and financed in the US, will contribute to the examination of these documents. Indict has spent the past seven years building up a case against Saddam Hussein, speaking to witnesses and gathering information international lawyers believe could be of great help in indicting the leaders of the former Iraqi regime. Clearly Bush's plans to oust Saddam were being hatched long before 9/11 provided him with an excuse to implement them. Aware of the difficulties that stood in the way of Slobodan Milosovic's trial, Saddam's prosecutors will try to circumvent such difficulties by placing his subordinates on trial first in the hope that this could facilitate the conviction of Saddam himself. They also know that Saddam has an important ace up his sleeve that he will not hesitate to use, namely, highly classified information that would be extremely damaging to certain Western capitals if it ever came in light. Saddam's relations with the West only deteriorated after his invasion of Kuwait in 1990. Before that, he was seen as an ally by the West in the face of Iran's Islamic Revolution. Although Saddam and his collaborators are still under American military guard, they are no longer considered prisoners of war but criminal detainees who enjoy no protection under the Geneva Conventions. As prosecutors scramble to produce irrefutable evidence that Saddam and his team are guilty of charges ranging from genocide to crimes against humanity, there are fears that they will be unable to unlock the secrets of the 250 mass graves in time. Indeed, no systematic work has yet been undertaken to identify the victims because of the practical problems facing forensic research in an unstable environment. Saddam's trial, and the investigations needed to thoroughly examine all its aspects, could need time far beyond what is left of Saddam's life, or of anybody else's life for that matter. Hence the idea of putting his collaborators on trial first and using their conviction to implicate Saddam who, as the head of the chain of command, is responsible for the acts of his subordinates.
