Elizabeth Wilmshurst: A murdered judge, appalling security, but Iraq could still give Saddam a fair trial

One judge has been killed, as has his son, a tribunal lawyer
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The Independent Online

The former dictator has been charged with only one set of atrocities: the massacre of about 140 people in the town of Ad Dujayl in northern Iraq after an assassination attempt was made against Saddam Hussein in 1982. Out of all the possible charges, this incident may seem a strange choice.

Alternatives would have been the chemical attack on thousands of Kurds in Halabja, the Anfal campaign against the Kurds in 1988, the repression of Shia in 1991. Judicial authorities in Iran have been critical of the failure to include war crimes of the Iran-Iraq war. But there may be good reasons for selecting the Dujayl killings for the first trial. The incident is self-contained; the investigation need not be wide-ranging. The links to Saddam may be easier to prove than for some of the other possible charges.

There have been a number of misleading announcements about the start of the proceedings. The Iraqi system has similarities to Continental legal systems, and pictures of Saddam before the investigating judge may have given the idea that the trial has already begun. This is not the case. The court is due to be convened this Wednesday, whether to begin the trial or, more likely, to adjourn the proceedings until later.

The Iraqi Special Tribunal was set up to try Iraqi nationals and residents (therefore not the Coalition forces) for atrocities committed in Iraq and elsewhere between 17 July 1968 (the beginning of the Baathist regime) and 1 May 2003 (the date President Bush declared major hostilities at an end following the March invasion). The court is given jurisdiction over genocide, crimes against humanity and war crimes, as well as a couple of crimes under Iraqi law which could give rise to charges relating to the invasion of Kuwait and the Iran-Iraq war.

The Special Tribunal was established in 2003 during the Coalition occupation; Coalition lawyers had their own input into the drawing up of its statute. Now the Iraqis are bringing the tribunal home. The Assembly has adopted a law which converts the tribunal into "The Iraqi Higher Criminal Court". This removes the foreign taint and will weaken the force of any possible defence by the accused that the court was established under an illegal occupation and therefore has no authority.

The court faces enormous problems in the light of the appalling security situation. One of the tribunal's judges has been killed, as has his son, a lawyer who also worked at the tribunal. Witnesses, too, may face threats.

The village of Dujayl is surrounded by centres of insurgency. It may be these security problems that have led to delay by the prosecution in handing to the defence lawyers the evidence on which Saddam and his co-defendants will be tried. Effective measures are still needed to protect the witnesses, the families of victims, as well as the junior personnel who might be prepared to give evidence about the actions and orders of their seniors.

The involvement of the international community, reduced by the new law, has always been problematic. Before the Special Tribunal was set up there was talk of an international trial. But the International Criminal Court does not have jurisdiction (Iraq is not a party, and most of the offences occurred before the Court was established); moreover, the United States did not favour a separate international tribunal, nor did the Iraqis. Foreign governments have assisted to a greater or lesser extent from the sidelines. The UK government, for example, supports the reconstruction of the criminal justice system in Iraq but has had a dilemma about how close to get to a court that has the power to award the death penalty. The Government has tried to keep to both its principles: bringing justice to victims and maintaining opposition to the death penalty.

This has required a certain amount of tying itself into knots, but it has helped with training the judges while declining to assist the court directly in investigative or forensic work.

Will there be a fair trial? On paper, the situation looks good. Proper procedures are in place: there is a presumption of innocence, the defence is to be informed promptly of the details of the charges and must see the witness statements, there are rights against self-incrimination. In practice, things may be different. The years under the Baathist regime have not encouraged a culture of independence among the Iraqi judiciary; a tendency to defer to political pressure, even though the politics concerned have changed, may be difficult to shake off. The judges have never had to deal with trials of such likely length. Those human rights organisations which have previously been sceptical about some of the tribunal's procedures will be even more concerned now that the new law has removed the requirement for international monitors.

Every trial of a deposed leader presents difficulties, as is clear from the cases before the international courts and tribunals which have been set up to try those accused of genocide in Rwanda, Milosevic and other leaders in the former Yugoslavia, and ex-President Taylor of Liiberia. Not the least of the difficulties is attempting to accord a fair trial to someone who has presided over decades of atrocities and to stop the deposed leader using the proceedings as political theatre to retain the sympathy of his supporters. The expectations for post-conflict justice are immense: as well as providing retribution, Iraqis may want the court to ensure their story is told and to write the official record of the atrocities, while also paving the way to reconciliation. To these demands is added the test of the Iraqi justice system against a background of challenges to the rule of law.

The expectations of the victims may look unrealistic in the light of the current situation in Iraq. But is it ridiculous to believe that, in spite of everything, this trial will go well? There is a desperate hope that it will.

Elizabeth Wilmshurst is senior fellow in international law at Chatham House, which will publish a new paper on the Iraqi Special Tribunal this week