Leading article: Saddam Hussein is not the only one on trial

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The Independent Online

That said, the timing of today's opening is exquisite. The prospect of the trial supplied a timely reminder of what was bad about Iraq's old regime in nice time for the constitutional referendum at the weekend. The trial itself is opening one day after the 60th anniversary of the opening of the Nuremberg trials, which inaugurated and defined the judicial treatment of war crimes. The one-day difference allows the precedent to be recalled, without being so blatant as to appear crass.

That Iraq's former dictator should stand trial was always highly desirable, once he had been captured alive. A trial, conducted according to the highest judicial standards, is by far the best solution for everyone with an interest in a democratic future for Iraq. Such a trial would allow Saddam's former enemies to feel that their suffering has been recognised. It would allow his former supporters to feel that his case has been fairly represented. And it would allow Iraq's current authorities to demonstrate that they respect the rule of law.

In principle, there was good reason for preferring a trial before the International Criminal Court. After all, the ICC was established precisely so that such cases could be judged according to objective rules. But there is also merit in having Saddam tried by a court made up of his own people. It was, after all, they - rather than the world at large - who were his prime victims.

The overriding requirement, however, is the same. For the outcome of the trial to be respected, the proceedings must meet the highest international standards. There must be complete transparency, and the defendant must be given decent legal representation and granted a fair hearing. Unfortunately, there must already be serious doubts on this score.

The status of the court is, at very least, open to challenge, as it was set up when Iraq was still formally under occupation. Although sovereignty has since been transferred, the transfer remains largely theoretical. Saddam's lawyers also claim that the US has been involved in preparations for the trial. This raises questions about who will be trying Saddam: a court acting in the name of the Iraqi people, or one directed by Washington?

Even if the court is considered to have proper authority, there can be other objections. A condition for justice is that the defendant should be apprised of the charges. So far, there is only one charge, relating to the 1982 killing of Shia men from Dujail. If further charges are published today, this would be patently unfair. If there are no additional charges, it is reasonable to wonder why there is no reference to the gassing of Kurds, the suppression of the Shia uprising and the draining of the Marsh Arabs' homeland. Could it be that Dujail is one of the few abuses of power that was not in some way facilitated by Saddam's Western allies?

None of this bodes well for a trial that could and should be a pivotal moment in Iraq's transition to a law-governed state. Ruling out the death penalty in advance would be one way for Iraq's government to show it is motivated by a desire for justice rather than a thirst for vengeance. It could also prevent Saddam, now or later, being accorded the status of martyr. The recent restoration of the death penalty, however, suggests it will be used. A trial perceived to be unfair and culminating in an execution could be as bad as no trial at all: a divisive liability rather than the necessary national catharsis.