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8 January 2007updated 16 Aug 2023 10:50am

A flawed process

Iraq has blown its chance to prove it has embraced the rule of law

By Chris Stephen

In October 2005, I wrote in these pages of the grave concerns human-rights groups had about Saddam Hussein’s coming trial.

Unhappily, each of those concerns was played out in what became a travesty of a trial, and the absurdity of holding a war-crimes trial in a country on the brink of civil war was rammed home when three of the defence lawyers were murdered. Already, last January, had come the resignation of the first trial judge, furious at sniping by officials of a government that seemed to have only a rudimentary understanding of the rule of law.

The trial trampled on a series of procedures. The defence was prevented from receiving exculpatory evidence from prosecutors. Often it had little time to prepare: witness lists and statements were sometimes handed to Saddam’s lawyers at a few hours’ notice. And, for nearly a year after his arrest, Saddam was denied legal advice.

Most damning of all was the decision by prosecutors to examine only one aspect of Saddam’s atrocities. To render credibility to the trial, the full horror of his despotism should have been exposed and he should have been tried to legal standards. Instead, he was tried for a single act: the massacre of 148 people at Dujail.

It was an appalling crime, and for the survivors and relatives of those dead, there will be some satisfaction at the outcome. But Dujail formed only one small component of his alleged crimes, which stretched from the gassing of the Kurds, through the torture and murder of his political opponents and the attacks on the Marsh Arabs, to the mistreatment of British prisoners of war during the 1991 Gulf war.

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Prosecutors initially promised that further charges would follow, and, indeed, Saddam was later charged with the Anfal massacres, which claimed the lives of at least 100,000 Kurds during the 1980s, coinciding with the poison-gas attack on Halabja. Yet, for reasons still to be explained, the courts cut the process short. Found guilty of the Dujail massacre last November, the dictator was bundled through a snap sentencing and appeals process and then, just days after an execution was authorised, he was hanged.

The result, bizarrely, is that he will escape conviction for genocide: the Anfal trial will go on with other defendants, including his cousin, Ali Hassan al-Majid, nicknamed Chemical Ali, who will appear in court later this month. But because Saddam is dead, all charges against the former leader are automatically dropped. Saddam: not guilty of genocide. You couldn’t make it up.

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All this could have been avoided easily: for ten years the UN has run war-crimes trials for the former Yugoslavia, Rwanda and Sierra Leone. The International Criminal Court, with 104 member states, is shortly to review prosecutions for atrocities in Darfur.

There is a well of international legal expertise that could have been tapped, judges and lawyers who could have been hired. But Iraq, determined to carry out the process by itself, shut them out, along with the UN and any international dimension to the trial.

The cries of “Go to hell” and “The tyrant has fallen” captured in the videos of his execution have marked this out as a show trial.

Iraq’s government has blown the best chance it had to demonstrate to the outside world, and, more importantly, to the Iraqi people, that it is capable of embracing the rule of law.

Chris Stephen is the author of “Judgement Day: the trial of Slobodan Milosevic” (Atlantic Books)

Read more on Saddam’s hanging
Dubbya in denial Andrew Stephen
As events in Iraq turn to the worse, George Bush seems ready to do anything to secure his legacy.
An illegal hanging Sadakat Kadri
Besides being barbaric, the execution of Saddam Hussein might well be illegal.