Saddam's trial finishes as it started, in controversy

The trial of Saddam Hussein was a chance for Iraq to show its democratic credentials, writes Chris Stephen , but it was a chance…

The trial of Saddam Hussein was a chance for Iraq to show its democratic credentials, writes Chris Stephen, but it was a chance missed.

In recent years, war crimes courts around the world have achieved important advances for international justice: Iraq's High Tribunal has not been among them.

The trial and death sentence announced on Sunday against Saddam Hussein has been controversial from the start, blamed by rights groups for lacking basic safeguards needed for a fair trial.

Controversy began even before the former Iraqi dictator appeared in the fortified courthouse inside Baghdad's Green Zone. The rules for his trial were announced in December 2003, a week before Saddam was captured, without debate by parliamentarians or anyone else.

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Rights groups have been adamant that these rules tilt the trial against the defence.

First was the retention of the death penalty: international courts and many parts of the world have done away with this, though Iraq points out that the penalty is in line with its own criminal code.

Second was the lowering of the burden of proof away from the internationally accepted maxim of "beyond reasonable doubt".

The court further complicated things for the defence by allowing the use of anonymous witnesses, who, with their identities not revealed to the defence, could not be effectively cross-examined by Saddam's lawyers.

A third problem has been the narrowness of the case against Saddam and his seven co-defendants. Saddam presided over one of the most murderous and vicious dictatorships of modern times, yet he has been condemned for just a single massacre.

The killing of 148 civilians at Dujail in 1982 is certainly horrific, and a second trial, for genocide, is already under way. Yet the fact is that most of his alleged misdeeds will remain unexamined.

These include allegations by opponents of foreign help in obtaining weapons used to fight Iran in the 1980s. This is hardly the full public airing that was once promised.

Most controversial of all has been the decision to hold the trial in Iraq, rather than give it to an international court.

This has pleased the United States, a leading campaigner against mechanisms such as the International Criminal Court which it says lacks democratic safeguards. But the result has been to exclude UN judges, some of the few with the necessary experience of such trials.

Iraq's decision to use its own jurors led to what Human Rights Watch calls "an almost complete lack of familiarity with international criminal law on the part of all Iraqi lawyers and judges." The result has been to leave the judges having to learn on the job, leading to chaotic scenes in the courtroom.

It has also allowed the government to stick in its oar: the first chief judge quit after being publicly criticised as too lenient by a justice minister.

The second was sacked by the government for reportedly commenting during the trial that Saddam was "not a dictator" - a comment the judge considered was taken out of context.

The decision to exclude international courts also meant the trial has been held in what amounts to a war zone. The result has been the assassination of three lawyers and the alleged intimidation of many more.

Not for nothing does the UN ensure that its war crimes trials are held far from the conflict zones they deal with.

And as the trial started, so it finished, in yet more controversy, this time over the timing of the verdict, just two days before the Bush administration faced controversial mid-term elections.

The argument about whether this was intentional or a coincidence misses the point. In this trial, as in any trial, it is important not just to do justice but to demonstrate, publicly, that justice is being done.

Choosing such a politically charged date should have been avoided for just this reason.

As a result, the trial of Saddam Hussein is a chance missed. This case was a chance - the best one the new government will have - to show that it is serious about the rule of law. Instead, it has produced a trial that has serious criticisms and which can only undermine its democratic credentials.

Chris Stephen is author of Judgment Day: the Trial of Slobodan Milosevic (Atlantic Books 2004).