The trial of Saddam Hussein and some of his nasty colleagues has already degenerated into the realms of a promising theatrical farce. All everyone wants is to give them a fair trial as quickly as possible and then hang them - but this is not possible. They are not quite ready to go yet. In fact the whole thing is likely to take so long that the grim reaper will probably have got to many of the defendants first, the lawyers will have left the case to their grandchildren to try, the judges will have changed from time to time like the cast in a long-running farce on Broadway and then, for the survivors, there is an appeal.
The United States wants this to be a showcase for democratic justice - something to show for the hundreds of lives lost in this escapade, something the Iraqis can look upon and admire as one of the fruits of losing the war - and the great institution of justice US-style.
So who is actually producing and directing this production and who will be selling the tickets and television rights? For advanced publicity you need to listen to Professor Michael Scharf, US director of the war crimes regional office, who acts as agent for the Bush administration and as stage manager for the show.
He is pretty busy at the present time. He is busy training the military to be judges for the Guantanamo Bay trials. In a recent interview, the professor wished to assure the world that the whole show was in good hands: "The United States will be involved in the trial but from behind the scenes, more like a puppet master."
That should boost the sale of tickets. With the recent record of the Bush administration on human rights and international diplomacy, we can be sure this will be a true showcase for the cause. After all, with their experience they could turn Hamlet into a comedy and a Punch and Judy show into adult entertainment.
Professor Scharf, who speaks with the sort of authority of those who have been touched by President Bush, promotes the production with enthusiasm. Of course, the whole case is being run by the Iraqis for the Iraqis. The fact that Iraq has not had the advantage of having a proper legal system for years, thanks to you-know-who, does cause some problems, but this can only add to the entertainment. After all, the Americans are able to fix most things. It is not just a case of smashing the place up, although they are good at that. They are also good at human rights, with a few unfortunate exceptions.
The Iraqi Special Court statute has been drafted by the US. This must have been done when President Bush was down at the ranch since it bears an uncanny resemblance to the new International Criminal Court so profoundly opposed by the Bush administration. We can only hope that they do not spot this before the show gets on the road.
In keeping with the new spirit of justice and fairness invented by the Bush administration, the professor, speaking with the authority of the string-puller, was able to assure the world before the trial starts that it will be very hard for Saddam to be acquitted. Nothing could be fairer than that. At the same time he was able to introduce a new concept of "fairness" into jurisprudence. When asked whether Saddam will get a fair trial he replied: "It's all relative ... it's pretty fair." He should know - he is a professor of law, fresh from training the military judges.
The Bush administration ploughed into the war with little regard as to how to deal with the peace. It resembles a government of headless chickens: the same lack of pre-planning is all too visible in the preparation for trial.
The trial is to take place in Baghdad, not in the international court in the peacefulness of The Hague. Iraq is full of warring factions previously held together by a ruthless regime. Shias, Sunnis and Kurds haveincompatible agendas. There are old scores to settle. The previous Baathists are either in secret gangs or keeping an anxious low profile. There is organised local warfare and the whole country is treated as a playground by al-Qa'ida.
This is hardly the environment for a political trial, let alone one of this magnitude. The court building will have to be surrounded by a ring of steel with armed vehicles and troops. All participants will need 24-hour protection. What effect will all this have on potential witnesses? What is the plan?
So far, the response of the new Iraqi government has been to seek to re-introduce the death penalty in a rush to get the convicted defendants. What Iraq needs more than anything else is a period of reconciliation and forgiveness, of the kind that worked so well in South Africa. A general amnesty should be given so the ordinary people can concentrate on the important things in life. This would help to create a better environment for the trial to take place.
The re-introduction of the death penalty is self-defeating - it only adds to the tension and marks out the character of the new regime. It would have been much easier to hold the trial in the international court, away from these pressures and fears and with experienced international judges, but it is understandable that the new Iraqi government would wish to deal with their own problems. However this creates practical problems.
Saddam and other defendants will no doubt use the trial as a political platform, especially with the death penalty hanging over their heads. The trial will involve hundreds of witnesses, if they can be got to court, and lorry loads of documents. Experienced judges are needed to deal with this. Even the judicial tactics adopted for the Milosevich trial at The Hague of switching off the microphones during ranting may not be enough - a tougher line may be necessary.
There is much to be said for having an experienced international jurist, who is entirely unconnected with the allied invaders, on the tribunal.
There is a more fundamental flaw. The US should not have the role of puppet master, enabling it to pull the strings behind the scenes like a colonial master. Nothing could be more counter-productive than to have the invader running the trial, openly or behind the scenes. The whole procedure becomes tainted: the ordinary Iraqi will have no confidence in the proceedings, and understandably so.
The Iraqi government should have turned to the United Nations or to respected international jurists to fix the constitution of the tribunal and its procedures. The US troops should stay in their military bases.
It will be difficult to make the trial fair for everyone concerned, but it would certainly help if the Iraqi judges were not treated by the Americans as puppets - this does relegate the proceedings to the level of a farce. The central pillar for a fair trial is the independence of the tribunal. With the Bush administration pulling the strings, this is demonstrably missing.
Anthony Scrivener QC is a former chairman of the Bar CouncilReuse content