Focus: The trial of Saddam Hussein

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The Independent Online

Adviser to Attorney General on the legality of invading Iraq, he also acted for Spain over extradition of Chile's General Pinochet

Members of the court, the scale of this case makes it seem that what is on trial is not an individual but the very state of Iraq. Yet the Nuremberg judgment reminds us that crimes are committed by people, not states. The defendant is such a person. He has the same rights of fair trial as any defendant but no claim to special treatment by virtue of his one-time status as president.

What are the charges against him? The defendant is charged with crimes against humanity, war crimes and genocide - offences that have long been established in international law and which are today included in the statute of the International Criminal Court.

First, there are crimes against humanity committed against the people of Iraq, including the systematic use of torture, rape, murder and intimidation as tools of government. The scale of what was done must not blind us to the sheer horror of what happened to each of the many thousands of individuals who suffered in this system of terror as they were starved, beaten, humiliated, dipped in acid, forced to watch the torture of those they loved and, in so many cases, when every shred of dignity had been torn from them, dispatched in an execution (the costs of which would be carefully charged to their family) or simply left to die.

For over 30 years such horrors were commonplace in Iraq, but new depths of cruelty were reached in the suppression of communities that resisted Saddam's rule. The 1980s saw a whole town - Halabja - wiped out by poison gas and tens of thousands of men and boys arrested and murdered. The same brutality characterised the suppression of the Kurdish and Shia uprisings in 1991 and the campaign against the ancient civilisation of the Marsh Arabs.

That these terrible things happened cannot be denied. They were widespread, systematic and directed specifically against the civilian population. Nor can the defendant's responsibility for them be in doubt. Indeed, far from denying it, he has revelled in it. There are cases - and they are not few in number - when it was his own hand that carried out summary execution or actively participated in the torture of a helpless victim. But the defendant's responsibility does not stop there. He created a system of government in which he was an absolute monarch and in which governance was by terror. None of the horrors suffered by the people of Iraq happened, or could have happened, without his decree.

Second, there are the defendant's crimes against Iraq's neighbours. The use of chemical weapons against Iran, the ill-treatment of prisoners of war and the deliberate targeting of civilian population centres in the war with Iran were war crimes, clearly and unequivocally prohibited by international law. Again, these things could not have happened without the defendant's orders. The use of chemical weapons, for example, was specifically forbidden without his personal order. It is he who bears responsibility for these crimes against the laws of war. The brutal occupation of Kuwait, in which over 6,000 people disappeared without trace and in which the state of Kuwait was systematically plundered and its oil fields set alight, was similarly unlawful and was again the direct product of decisions for which the defendant was responsible.

It is no use the defendant saying that terrible things happen in war. The charges against him concern clear, deliberate and systematic breaches of laws that Iraq and all other states have accepted and that represent the line that has to be drawn between humanity and savagery even in war.

Finally, there is genocide - the gravest crime of all. The prosecution realises that its task here is more difficult. For you to convict of this, the ultimate crime, you must be satisfied not only that the defendant was responsible for murder but that he intended to destroy an ethnic, racial, religious or national group. The bar is a high one, but we say that in this case it has been surmounted. The assault on the Kurds, the destruction of the Marsh Arabs' way of life, the persecution of the Shia and the attempt to destroy every vestige of Kuwait's separate existence all point to the conclusion that the defendant did indeed have the intention to destroy certain groups.

You have before you evidence of crimes of a scale and savagery that are difficult to comprehend. That the defendant was responsible for these crimes is clear. No serious defence has been offered. He cannot be allowed to escape justice by arguing that others have gone unpunished. Stalin's crimes did not exonerate Hitler, and the recent history of the Balkans, Rwanda and Sierra Leone shows that the defendant is not the only fallen leader to stand trial. If justice and the rule of law are to mean anything, then the defendant must now answer before you for what he has done.

The defence: By Anthony Scrivener QC

Former chairman of the Bar who represented the Guildford Four and Winston Silcott in miscarriage of justice cases

Members of the jury, this case is about prejudice, propaganda and politics. President Bush has already passed a death sentence on President Saddam in a broadcast to the world, before the trial has even taken place. It's Bush justice.

I have referred to the person I represent as the President of Iraq. I call him by his title because he has never been deposed by his own people. He has been deposed by an unlawful foreign invasion which the United Nations refused to sanction and which was in contempt of the UN charter. He is held by that unlawful force. The UN has been cast to one side by America, the most powerful nation in the world. It is so powerful it can ignore other nations. Special rules apply to it.

You have seen the defendant on television as a prisoner being medically examined. The rules of war, of course, do not permit such an exhibition of a prisoner. But the Americans do it. Can you imagine what President Bush would have said had that been an American soldier? A prisoner interviewed by the CIA, with no legal representation allowed. It does not matter, does it? In Guantanamo Bay detainees are kept in custody outside the US, so they have no rights or protection. All the civilised rules can be safely ignored.

The trial is a farce. Do you believe for one moment that President Bush would ever accept a verdict of not guilty from you? He would tear up the verdict and order a fresh trial until he got the verdict he wants. President Saddam has already been sentenced.

I should make it plain. The defendant is certainly guilty on some counts. He pleads guilty to taking up the cause of the Arabs with pride and without fear - the cause of the Palestinians. He has been prepared to face Israel - a country occupying the land of the Palestinians in defiance of UN resolutions without complaint from the Americans or British. Like the US, there are special rules for Israel too. The Palestinians know what it is for their defenceless citizens to be bombed and attacked by the Israelis. Iraqi citizens know what it is like to be bombed by the Americans.

Atrocities can happen in any field of battle. They happened in Vietnam, where American troops were involved in atrocities but no one suggested that the President of the US should be responsible - in fact, blame did not even fall on to a senior officer. The Americans claim it is different for President Saddam. But the prosecution has to prove that he instigated the alleged atrocity. There is not the slightest evidence of this. But that does not matter because this trial, under the auspices of an unlawful occupying power, has a foregone conclusion.

See the politics. On 20 December 1983 a special envoy called Donald Rumsfeld visited President Saddam in Baghdad to give support in the war against Iran. The Americans supplied Iraq with economic aid, a computerised database for the interior ministry, satellite military intelligence, tanks, cluster bombs, helicopters and even bacteriological samples.

Iraq has had a territorial dispute with Kuwait for many years. The Iraqis told the Americans about the proposed invasion and were informed it was of no concern to America. But then the Americans decided they needed Kuwait more than they did Iraq. It's politics, members of the jury.

Iraq has, on occasions, been racked by civil wars. This is a country manufactured by the British. They drew the line so that the Kurds occupy part of the land and, like other ethnic groups all around the world, they want to break up the nation and obtain independence. No government can allow this. As in Sri Lanka and other places, this has resulted in terrorist acts and warfare. The President is not responsible for all the actions taken by commanders or even individual soldiers on the battlefield. This principle is accepted by the US for itself, but not for Iraq.

So why did the US rush into this urgent war when the real enemy was al-Qa'ida? It is because of oil, votes and money. A successful war distracts attention away al-Qa'ida and should attract votes. And as this so-called trial takes place, choreographed by President Bush and his advisers, those same people sit around the table dividing up the spoils of war - deciding which American company shall earn a fortune repairing the damage the Americans have themselves inflicted on Iraq. There are rich pickings, but they are available only to Americans.

And do they believe that President Saddam has been organising opposition from his hiding place? There is not the slightest evidence of this. What is happening is a spontaneous rebellion by patriots against oppressors and their unlawful war and unlawful occupation.The prosecution cannot prove that the President is responsible for every act of war on a battlefield and they know it. Who is guilty, members of the jury? It's all about prejudice, propaganda and politics.

The verdict

What our jurors say ...

The bishop: Richard Harries, Bishop of Oxford

I would judge him guilty of crimes against humanity and war crimes, but the charge of genocide is not yet proven. But the trial should take place in Iraq. Although the case for his acquittal criticised the US and Israel, the main charges will be laid by the Iraqi people. This is one sign of a huge advance since the Second World War. International criminals, however powerful, can be caught and brought to trial.

Guilty, but not guilty of genocide

The politician: Ann Widdecombe

Guilty as charged. America is not on trial: Saddam Hussein is. His defence has not disproved a single charge or offered any evidence to suggest he was not responsible for the atrocities listed by the prosecution. Indeed, Saddam himself has offered no denial.

Guilty

The commentator: Yasmin Alibhai-Brown

Saddam is guilty of the massacre of many Iraqis, of tormenting his nation and of ruling and controlling Iraq without the consent of the people. But he can only be tried by those whose hands are clean of any involvement in the long, vile rule of the dictator. That excludes the US and the UK, both of which did business with Saddam and aggravated the suffering of Iraqis with the years of sanctions.

Guilty

The historian: Professor Norman Stone

Mr Scrivener is a very good arguer, but his case does not in the end stand up. Iraq was an "artificial" country, yes, and had a minority that does not on the whole wish to belong. That is no excuse for killing them, let alone by gas. The British and Americans made mistakes back then, as now, but theirs was the cause that deserved to win.

Guilty

The exile: Anas Altikriti, Iraqi living in London

My verdict relies heavily on who will be sitting as judge. If it's going to be the Iraqi people and solely the Iraqi people, then there can be no question that he must be found guilty. If, however, the United States, Britain or any other Western state is presiding over proceedings or somehow involved therein, then it'll be like the Godfather trying and sentencing one of his henchmen for murder.

Guilty

The columnist: Simon Jenkins

I cannot exonerate Saddam Hussein. The systematic assaults on Kurdish and Shia populations involved horrific weapons against civilians. It is no defence that other rulers have done likewise with impunity from international justice. This is not an international court trying Saddam for the global threat he supposedly posed with his WMD. Saddam is being tried before his own people as best they can.

Guilty

The broadcaster: Joan Bakewell

Saddam Hussein is guilty of ruling a country for decades and presiding over domestic and foreign policies that have taken thousand of lives. As a despot Saddam has to acknowledge responsibility for what was done by his army, military intelligence and internal security. It is an opportunity for those who have been wronged to show their evidence before the world.

Guilty

The protester: Alastair Mackie, vice chair of CND

Saddam is guilty of charges so far framed only by President Bush. Whatever the formal charges are, there is much to be said in mitigation. Almost since he first came to power with US support, Saddam will have felt threatened by US/Israeli action against the Arab world. Clausewitz said that what one protagonist sees as defence the other will see as offence. Saddam, vis-à-vis the US, will have perceived exactly that.

Guilty

The military historian: Corelli Barnett

Previous Iraqi governments took ruthless measures to suppress Shia unrest and Kurdish revolts to maintain unity. Saddam was only following custom. The US supplied the technical wherewithal for war against Iran, so is an accessory after the fact. Genocide is a deliberate attempt to destroy an entire race. The treatment of the Kurds and Marsh Arabs, while cruel and oppressive, evidently fell far short of complete extermination.

Not guilty

The Muslim leader: Iqbal Sacranie, Muslim Council of Britain

No tears should be shed about the fate that awaits him. A million people, almost all of them Muslims, are estimated to have died as a result of his regional ambitions. Yet are those who were complicit in Saddam's crimes against humanity to face justice too? During the Iran-Iraq war, he was a favourite of the West which gave him weapons, chemical agents and intelligence and provided him with export credits to help finance his war.

Guilty

The parent: Rob Kelly, father of British paratrooper killed in Iraq

The man is guilty. He's killed his own people. When the defence talks about this being "George Bush's justice" that is correct but it's no defence for Saddam Hussein. It doesn't diminish what he has done to the Kurdish people, the Kuwaiti people, the people of Iran, as well as using gas against his own people and filling mass graves. That can't be excused.

Guilty

The weapons inspector: Scott Ritter, former UN chief inspector

I would have to find him not guilty because none of the evidence is admissible. The defence will be able to throw every piece of evidence out of court. It doesn't mean he's innocent. I believe he's guilty as hell, but I also believe in the rule of law.

Not guilty

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