In late June 2004, Saddam Hussein was handed over to an Iraqi court to be charged with war crimes and crimes against humanity. These include the attack on Halabja and the killing of 5000 members of the Barzani clan. They will probably also include the invasion of Kuwait, as well as relate to the Iraq-Iran war. The charges will be read out on television and released internationally.

Professor Sean Murphy of Georgetown University describes the history of the decision that led to the trial process as follows:

In November 2003, the [now-dissolved] Iraqi Governing Council created a special tribunal for the prosecution of persons who committed serious war crimes in Iraq from the time the Baathist Party came to power. That tribunal would consist largely of Iraqi judges and prosecutors, but with foreign involvement as well. The statute of the tribunal set forth the crimes for which the person may be prosecuted, the penalties (which follow the Iraqi criminal code and can include death), and various rights for the accused.

Human rights groups and leading judges, such as Judge Richard Goldstone who was chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda between 1994 and 1996, originally called for Saddam Hussein to be tried before an International criminal tribunal. However, Professor Murphy states that there were problems with this idea: “The International Criminal Court located in The Hague would not have jurisdiction (Iraq is not a party to the statute) and there was little interest in the international community to expend the funds necessary to create an entirely new tribunal.”

Although George W. Bush adamantly promised that Hussein would receive a fair trial, Hussein’s French lawyer, Jacques Verges, argues that this would be difficult if world leaders are not brought to the stand. This is a possibility the Bush administration would be extremely anxious to avoid, because of embarrassing links with Saddam’s regime. In the early eighties, for example, the American, British, and Russian governments were troubled by the possibility of an Islamic revolution in Iraq, and so supported Hussein’s regime during the Iraq-Iran war. The regime purchased arms from all of these countries.

In a March 16, 2003 article of the St. Petersburg Times, quoted in Freedom Daily, (Hornberger, Jacob G., “Saddam’s Capture means trouble for US officials,” December 15, 2003) former US Sen. Donald Riegle is quoted as saying, “What is absolutely crystal clear is this: That if Saddam Hussein today has a large arsenal of biological weapons, partly it was the United States that provided the very live viruses that he needed to create those weapons.” Indeed, there is some evidence that the United States continued to supply weapons of mass destruction to Saddam even after learning that Iraqi forces had used them against the Kurds in Halabja.

According to Hornberger’s article, “In a September 25, 2002, article entitled ‘Following Iraq’s Bioweapons Trail,’ author Robert Novak wrote, ‘An eight-year-old Senate report confirms that disease-producing and poisonous materials were exported, under U.S. government license, to Iraq from 1985 to 1988 during the Iran-Iraq war. Furthermore, the report adds, the American-exported materials were identical to microorganisms destroyed by United Nations inspectors after the Gulf War. The shipments were approved despite allegations that Saddam used biological weapons against Kurdish rebels and (according to the current official U.S. position) initiated war with Iran.’”

Other issues that could compromise the trial include the US-backed embargo imposed by the United Nations on Iraq after its invasion of Kuwait, and the recent UN Oil-for-Food scandal. The program, which allowed Iraq to sell limited amounts of oil to finance humanitarian supplies of food and medicine, was apparently riddled with corruption. According to The Guardian newspaper, the scandal involved certain individuals and companies receiving vouchers that allowed them to sell Iraqi oil through middlemen if they paid a 10% markup on the price of the oil. Hussein bribed officials and companies—and, allegedly, UN officials—to take part in this evil scheme, and is believed to have diverted over five billion dollars—perhaps ten billion—into his own bank accounts.

More than 270 groups, politicians, and companies received oil vouchers, which allowed them to buy Iraqi oil and re-sell it at a tidy profit. This scandal was a well-kept secret until early this year. The UN, the US Congress, and the interim Iraqi government have all begun investigations into this scandal.

All of these issues complicate the trial and there are fears that the Iraqi tribunal may not have the experience to conduct such an involved procedure. Richard Dicker, the head of the international justice program at Human Rights Watch, argued on CBS News that Saddam has no chance of receiving a fair trial under the proposed scheme.

“We have serious concerns about the tribunal that was created by the Governing Council in Iraq,” Dicker said. “The process was conducted with zero transparency. The concern is that Iraqi judges and lawyers don’t have the necessary experience, after three decades of Baath Party rule, to conduct the enormously complicated criminal proceedings that genocide and crimes against humanity require.”

If so, this is a great pity because Saddam’s terrible crimes, such as using chemical weapons on the Kurds and systematic use of torture, require detailed investigation, excellent knowledge and application of international criminal law.

Another important issue is whether Hussein will receive the death penalty. The Europeans and the Americans disagree about this method of punishment. Bush has stated publicly that if Hussein is found guilty he deserves the death penalty, but Kofi Annan, the head of the UN, and British PM Tony Blair strongly dislike this sentence. The British government, which was involved in setting up the court, has even suggested that it may refuse to hand over evidence of Saddam’s atrocities and disallow government staff from being witnesses in the trial if the Iraqis re-introduce the death penalty. The new Iraqi government, like the Bush administration, favors the death penalty as a possible sentence and, indeed, plans to re-introduce it. The British opposition and possible refusal to involve itself in the trial could be seen by many Iraqis as yet another Western imposition of cultural values on their country. After all, most Iraqis favor the death penalty in this case.

All these questions limit the possibility of Saddam Hussein receiving a fair trial. Saddam Hussein once said, “When you judge, judge with justice.” Unfortunately he did not do this himself, but let us hope that this adage applies to him.