Download Saddam`s Trial a missed opportunity

Saddam’s Trial a missed opportunity
John Pace
On an interview with the BBC’s John Simpson, Iraqi Prime Minister, Al-Maliki,
said that he thought that Saddam would be hanged before the year is out. As we
know there is an appeal but the assumption is that the sentence will be
confirmed, and if that happens the sentence must be carried out within thirty
days, The statement by the Iraqui Prime Minister is symptomatic of the nature of
the entire proceedings in the trial(s) of Saddam.
The human rights crimes committed during Saddam’s reign were extraordinary and the cruelty and callous non-respect for
the right to life and for the right to freedom from torture have been documented in several reliable reports over the years.
These include the reports of the Commission on Human Rights (now replaced by the Human Rights Council) whose
Special Rapporteur, (Max van der Stoel of the Netherlends and later Costas Mavromatis of Cyprus) between 1992 and
2003 documented for the international community the injustices committed against hundreds of thousands of innocent
civilians in Iraq during Saddam’s dictatorship. The international community failed then to take effective action to address
and redress those aberrations. This time it has failed again.
Crimes against humanity are defined in the Statute of the International Criminal Court, and jurisdiction is attributed to the
national courts; international jurisdiction is a supplementary one and generally speaking only kicks in when the national
jurisdiction is either unable or unwilling to exercise its jurisdiction. The Tribunal in the Saddam trial may have been
willing, but certainly cannot be said to meet the criteria to enable it to assume jurisdiction. Thus in order for a proper trial
to have taken place and for the horrors of his regime to have been comprehensively exposed, Saddam should have been
tried by the International Criminal Court.
Saddam’s trial should not have been held in Iraq for the following reasons. In
the first place, the Tribunal itself is of doubtful constitutionality – the constitution
which was voted on in the referendum of 15 October 2006 excludes ad hoc
jurisdictions (Article 94[95]). The Tribunal was originally set up as an ad hoc
tribunal under the Coalition Provisional Authority on 10 December 2003 - at that
time, the then Acting High Commissioner for Human Rights had shared concerns
about the need to ensure a proper trial consistent with international standards,
and Paul Bremer had reassured the A/High Commissioner that the Iraqi
Governing Council, where the Iraqi Special Tribunal (IST) Statute was
purportedly being drafted, would ensure that international standards would be
met. In 2005 a series of attempts were made to amend the IST Statute. This
culminated in the establishment of the “Supreme Iraqi Criminal Tribunal” (SICT)
which is what the tribunal trying Saddam Hussein is called. In spite of the change
of name and the introduction of new elements attempting to ‘incorporate’ it into
the judicial organisation of the State, the tribunal arguably remained a special
tribunal in all but name.
Secondly, the law setting up the SICT was passed by a Transitional National Assembly that was meant to be elected for
one year to draft the constitution, and therefore whose powers to legislate on matters of such national importance may be
disputed. But even assuming that the IST was legally established, it was, and remains questionable, that you could find
any person in Iraq who could possess the degree of objectivity that such a serious trial required. This was confirmed by
the conduct of the judges and the corresponding undue interference by the government in changing judges when they
appeared to be unsuitable to other ‘authorities’.
But even assuming that the judges had the requisite qualities – the security situation and the threat to the proper
conduct of the proceedings did not allow for a trial to be conducted with the requisite openness and transparency. No
less than three members of the defence were assassinated and all were subject to threats on their lives, which, as we
all know, cannot be taken lightly in Baghdad. During the trial, defence counsel several times told of their fear for their
lives and those of their friends and relatives.
Furthermore, the proceedings took place in war-like conditions, above and beyond the tight security that such trials
warrant whenever and wherever they take place. The proceedings were not accessible to the public, although
selected excerpts were broadcast. The little that was shown confirmed the concerns regarding the proceedings.
All this made a mockery of the seriousness of the proceedings that the crimes warranted. After all crimes against
humanity are exactly that: it is humanity at large that has an interest that such crimes are punished and punished in a
manner that is consistent with international standards.
Has justice been done? The short answer is no: Saddam may have been found guilty, and, more than likely, he will be
hanged by the end of the year. But justice is not merely made up of a sentence and an execution. For justice to be
done, the victims need to be involved; this sentence is for the execution of the 148 victims of Dujail. But what about the
other victims of the massacres in the north and in the south of the country? What about the terrorising of anyone who
dared exercise freedom of opinion and expression? What about the surviving families of the victims, who number in the
hundreds of thousands? What about those young men, now in their twenties who were then below the age of thirteen,
whose fathers, and brothers above the age of thirteen were carried off to execution in their thousands? Will Saddam’s
execution bring justice and compensation to them?
And as far as we are all involved, (humanity) how much of a deterrent has this trial provided to the emergence of future
dictators who turn on their own people? The answer is very little. .
In Iraq, people are fighting to survive from day to day in a situation where security has never been worse. In Baghdad,
the trial was not a major event. Now more than ever, the focus is on searching for ways to survive and if possible to
remain in the country. Many, however, are giving up and leaving (if they can) as the country falls apart.
The international community has missed another chance to advance the cause of freedom and justice by allowing
Saddam’s trial to take place in Iraq. .
John Pace ([email protected]) is a Visiting Fellow in the Faculty of Law and former Director of the Australian Human Rights Centre at
the University. He is a Board member of the Diplomacy Training Programme. He was Head of the United Nations’ human Rights Office in
the United Nations Mission for Iraq between 2004 and earlier this year. He is a former Secretary to the UN Commission on Human Rights
and in the Office of the High Commissioner for Human Rights, where he occupied several responsibilities. Students are welcome to
address any queries concerning international or regional human rights issues to him at his UNSW email address.