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Last Updated: Saturday, 30 December 2006, 05:53 GMT
Judging the Saddam trial legal impact
Analysis
By Paul Reynolds
World affairs correspondent, BBC News website

Saddam shouts defiance as verdict is given
Saddam shouts defiance as verdict is given
The trial of Saddam Hussein was supposed to mark an important moment in a process of turning Iraq from dictatorship to the rule of law.

However, it might turn out to be just another event in the catalogue of chaos that has engulfed the country.

Its long-term importance might lie more in its effect on a growing body of international law trying to deal with government repressions.

Effect in Iraq uncertain

It appears unlikely that the outcome of the trial will materially alter the differing levels of warfare going on in Iraq - the jihadist attacks, the nationalist insurgency, the communal conflicts and the militia rivalries. These are too engrained and have too many deep causes to be changed by one event, however dramatic.

From the survivors' and the relatives' point of view however - and in this case, there were 148 victims from the village of Dujail who died in retributions following an ambush on Saddam Hussein there - there is at least the knowledge that justice has been done.

Of the power of the evidence there is no doubt. Villagers were able to come face to face with Saddam Hussein and tell of the torture and retaliation employed by the interrogators who sought to establish the extent of the opposition in that region.

The methods showed in detail how Saddam Hussein managed to maintain control over the country.

The former president's reaction was revealing as well. He justified the actions by wondering why the state should not take measures against a rebellion and at one moment said he had other, more important things on his agenda than to worry about what his subordinates were doing. He also of course dismissed the right of the court to try him anyway.

The trial established that there was a chain of command to the top and that sets an important precedent for any future ruler who tries to avoid responsibility.

Another important aspect of this trial is that Iraqis themselves have run it. That was one of the principles at stake here. Many other trials of dictators have been international interventions - the Nuremberg trials, the Rwanda trials and the former Yugoslavia trials.

This one has perhaps set a trend that people who overthrow dictators - or who have their dictators overthrown by others, as in this case - can organise justice themselves.

Criticism of court

The quality of justice in the case has however been questioned by some outside bodies.

Malcolm Smart, Director of the Middle East and North Africa for Amnesty International said: "Amnesty opposes the death penalty in all circumstances and we deplore the death penalty in this case.

"It is because we consider that the trial was flawed in serious ways that it is more concerning that the death penalty should be imposed."

He listed his group's concerns about the trials.

"The independence and impartiality of the court was impugned. There was political interference. The first judge resigned, the second was barred for being a former member of the Baath party, the only political entity at the time, and the third judge had relatives who were killed in Halabje [where Kurds were gassed by Saddam Hussein's forces].

The trial perhaps assumes an international legal importance greater than its impact in Iraq itself

"The security of the court was also impossible to keep. Three defence lawyers were murdered. Saddam himself had no access to legal advice for a year. There were also problems with the defence's ability to function."

International legal pattern

The trial takes its place on the growing list of tribunals that are slowly but surely establishing a new body of international law that can be used against repressive rulers.

And looked at from this perspective, the trial perhaps assumes an international legal importance greater than its impact in Iraq itself.

One of the principles of the legal trend is that justice if possible should remain within the country affected.

However, this is not going to be possible in all cases. It was not possible in the former Yugoslavia or in Rwanda and this is why special courts were set up.

But in any event, pinning responsibility on someone is the key element.

Role of ICC

Now the International Criminal Court has been established.

The ICC was agreed in a treaty in 1998 signed by 100 countries (not including the United States). It is seeking to exert its authority in three cases.

These involve the Democratic Republic of the Congo, Uganda and Sudan.

The first case is that of Thomas Lubanga, leader of a militia known as the Union of Congolese Patriots. He was the first person to be arrested under an ICC warrant and faces charges in the first instance of using child soldiers. His would be the first ICC trial.

In the second case, the main defendant Joseph Kony, leader of the Lord's Resistance Army in Uganda, is still at large. He is accused of crimes against humanity, including murder, rape and enslavement.

The third case is at an earlier stage. It involves, following a referral from the UN Security Council, an investigation of Sudanese government officials and generals in Darfur.

If the ICC can make a success of these cases, it will be on its way to showing that it will count. It already claims to be influential, with, for example, the Colombian army now having to take ICC concerns into account when planning operations against guerrillas.

There is therefore much more of a legal thicket surrounding major crimes involving governments these days.

The Saddam trial is part of that, whatever its successes or failures.

Update: I have had an e-mail asking about the ICC and the invasion of Iraq. The court reported in February this year that it had received 240 complaints about the invasion and its conduct. Many related to the British involvement since Britain is a party to the court treaty. The US is not, so US citizens can only be prosecuted if the crime takes place on the territory of a treaty member or if the issue is referred to the ICC by the Security Council.

The Chief Prosecutor Luis Moreno-Ocampo replied that the crime of "aggression" had not yet been defined. He said the court had a mandate to examine conduct but "not whether the decision to engage in armed conflict was legal".

As for the conduct of the war, he said that evidence presented about the number of wilful killings did not meet the "gravity threshold".

Paul.Reynolds-INTERNET@bbc.co.uk


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