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Print edition : July 14, 2006

Impartiality of the Saddam Hussein trial is increasingly questioned because of the active behind-the-scenes role of the United States.

ATUL ANEJA in Dubai

SADDAM HUSSEIN DURING his trial.-BOB STRONG/AFP

THE trial of former Iraqi President Saddam Hussein has entered a new phase with the prosecution demanding the death penalty for him and two other co-defendants, former Vice-President Taha Yassin Ramadan and Intelligence chief Barzan Al Tikriti. The demand was made as the prosecution wrapped up its arguments on June 19 before the court adjourned. The defence will present its final arguments when the trial resumes on July 10 - the penultimate step before the panel of judges arrives at a verdict. Hussein and his seven co-defendants are facing trial over the killing of the 148 residents of the village of Dujail. They have been charged with the extra-judicial killing of these individuals following the failed assassination attempt on Hussein in 1982. Dujail is a small Shia-dominated village 80 km to the north of Baghdad.

The trial of Hussein has come in for intense criticism from international legal experts, who have variously described it as farcical, substandard and not constructive. The impartiality of the court has been questioned because of the active behind-the-scenes role that the United States has played in the conduct of the trial.

Technically, the trial is conducted under the authority of the Supreme Iraqi Criminal Tribunal. The SICT was formed under a statute promulgated by the Iraqi Transitional Assembly or Iraq's interim Parliament, which was formed following elections in January 2005. However, the tribunal contains the essential features of the Iraqi Special Tribunal (IST), which the U.S. established nearly nine months after the March 2003 occupation.

The SICT allows the appointment of foreign "advisors", known for their expertise in the field of international criminal law, to assist the judges and the prosecutors. This has made it possible for the U.S. to influence the trial significantly. The New York-based Human Rights Watch (HRW) says: "Almost the only source of non-Iraqi advisors and assistance has thus far been the U.S. Embassy's Regime Crimes Liaison Office (RCLO), established in March 2004 by the U.S. Department of Justice and funded by the U.S. Congress."

Citing U.S. congressional sources, HRW says that the RCLO's staff of over 50 have played a "lead role" in building the courtroom, conducting exhumations, interviewing "High Value Detainees", and reviewing seized documents. They have prepared an evidence database and trained SICT staff. The RCLO works under the authority of the U.S. Ambassador in Iraq and runs on a $128-million budget.

Realising that the legitimacy of the SICT was being called into question, the U.S. has been making efforts to draw experts from other United Nations member-states. However, its efforts have made little headway so far. European countries other than the United Kingdom have been lukewarm to Washington's appeal.

With the Dujail incident, the U.S. has been criticised for opening the trial. The Dujail case is a relatively minor when one compared with other alleged crimes committed by the former President's Ba'athist government. These include the gassing a of Kurdish village of Halabja, in which an estimated 5,000 civilians were killed. Hussein has also been accused of mass killings following the Kurdish-Shia uprising in 1991 as well as ordering an assault on Marsh Arabs which had as its major features the bombardment of villages, widespread torture and disappearances. The Iranians have blamed him for using chemical weapons against them during the eight-year Iran-Iraq war fought in the 1980s. It has been widely recorded that the U.S. supported Iraq in the war. Some analysts are of the view that a comprehensive investigation could lead to the publication of material that could expose the extensive links between the U.S. and the Ba'athist regime during this phase.

President Jalal Talabani at a press conference.-ALI HAIDER/REUTERS

The fairness of the trial has also been questioned because it is being held inside Iraq. While this presents certain logistical advantages, the disadvantages, in this specific case, appear far greater. For instance, the political atmosphere in Iraq is highly charged, and this might have already prejudiced the trial process. Some senior Iraqi political figures have been making highly emotive statements, which could have had an impact on the trial. In an interview on September 6, 2005, with Iraq's state-run Al-Iraqiya television, President Jalal Talabani stated that he had received the investigating magistrate who was in charge of questioning Saddam Hussein. "I encouraged him to continue his interrogation. He told me good news, that he was able to extract important confessions from Saddam Hussein." Talabani observed that "Saddam signed these confessions," adding that "Saddam Hussein is a war criminal and he deserves to be executed 20 times a day for his crimes against humanity." On June 24, 2005, Shia leader Abdul Aziz Al Hakim of the Supreme Council for Islamic Revolution in Iraq (SCIRI) said in an interview to Reuters: "There is no doubt that Saddam deserves more than just execution.... I am among those who are going to file a complaint for killing 64 members of my family. For these crimes alone he deserves 64 executions."

The extreme emotions the trial has generated have already influenced the replacement of its chief judge. Rizgar Mohammed Amin, the first judge of the Dujail trial, resigned on January 14, citing political interference and undue public criticism. Raouf Rasheed Abdel Rahman, a Kurd who belongs to Halabja, has replaced him.

However, Rahman's appointment has not been free from controversy either. In May, three witnesses for the defence testified that some of the alleged victims of Dujail were still alive. The defence argued that in case these claims were correct, the veracity of all the records that had been produced by the prosecution must be ascertained afresh. Judge Rahman, however, had the witnesses arrested for perjury. These persons were later produced in court and they "confessed" that their earlier testimony was false and that it was the result of intimidation by "Saddam loyalists".

However, the Associated Press has reported that it contacted two of these witnesses after they were released from jail and they went abroad. The news agency said, that these individuals acknowledged that they were beaten up in custody and had been forced to sign on documents reversing their earlier stance.

The atmosphere of intimidation, which prevails in Iraq, also appears to have compromised the trial. Three defence lawyers have already been killed after the Dujail trial opened on October 19. Iraqi police officials on June 21 confirmed that Khamis Al Obeidi, who represented Hussein and Ibrahim Al Tikriti, had been killed. His body was recovered from a street near the Shia slum of Sadr City on the outskirts of Baghdad.

Khamis al Obeidi, Saddam Hussein's lawyer, who was killed recently. He is one of the three defence lawyers to be killed since the opening of the Dujail trial.-BOB STRONG/AFP

The defence's top lawyer, Khalil Al Dulaimi, said the slain attorney was abducted from his home in the early hours on the orders of the Shia-dominated Interior Ministry.

Two defence attorneys were murdered in mysterious circumstances earlier. Around 12 masked gunmen abducted Saadoun Al Janabi from his Baghdad office less than 24 hours after the trial opened. His body was found with bullet injuries on the head. Within weeks Adel Al Zubeidi was killed in a daylight ambush in Baghdad. A third attorney, who was injured, left the country.

Al Dulaimi said the purpose of the assassination of his colleague was "to terrify the lawyers and hinder the work of the defence team".

The death penalty clause in the SICT statute has also come in for close scrutiny. Article 30(a) of the SICT statute prohibits the grant of clemency by any government official once the death sentence has been awarded. Another provision states that once the final verdict has been announced, the death sentence has to be carried out within 30 days. As a result, the trial may never take place for many other crimes, which appear far more heinous than what transpired in Dujail. Amnesty International has described the death penalty provisions as a "very worrying concern".

Human rights groups have emphasised the need for transparency and fairness in the trial, which has been compared to the Nuremberg trials because of the worldwide attention that it has attracted. It has been argued that Hussein's trial could follow the more recent examples of Rwanda and Sierra Leone where international tribunals were set up to adjudicate on allegations of mass killings.

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