The Middle East expects courtroom drama but the decision to try the deposed president quickly on charges relating to a single case risks putting expediency ahead of legitimacy, write Steve Negus, Roula Khalaf and Neil MacDonald
By Roula Khalaf, Neil Macdonald and Steve Negus
His statues were torn down two and a half years ago; his once powerful army and his dreaded mukhabarat intelligence service have been destroyed; and his Ba'ath party has been outlawed. But only today will Saddam Hussein begin to face the humiliation of a public trial in which Iraqis and the rest of the Middle East will see the 63-year-old dictator forced to answer charges of war crimes against his people.
For many Iraqis, particularly the millions who lost relatives during Mr Hussein's repeated waves of repression, the first case that will be tried - the murder of 140 people in the Shia town of Dujail in the aftermath of a 1982 attempt on his life (see below) - will satisfy a yearning for justice and help turn the page on a dark past. Others will dismiss the US-financed trial as a sham, an abuse of national sovereignty in a battered country under foreign military control.
Iraq's government hopes the trial will help the fight against insurgents and extremist Islamists. "The insurgency umbrella is Ba'athist and the incubators are Ba'athist, and Saddam is their head and they think he's coming back," says Hoshyar Zebar, the Iraqi foreign minister. "So long as he's around it gives them hope."
But the trial has also generated criticism that has put the legitimacy of the process in doubt. Human rights campaigners, including those who have long called for Mr Hussein's prosecution, fear that the Supreme Iraqi Criminal Tribunal that has been set up to try Mr Hussein will fail to meet international standards for fair trials.
They warn that the experience could leave the impression of "victors' justice" and further polarise a society in which Sunni Arabs, some of whom enjoyed key positions under the old regime, feel marginalised by the Shia and Kurds who suffered most from Ba'athist brutality.
Preparations for the trial have been chaotic and shrouded in secrecy, reflecting the country's instability and persistent security fears. This month, British officials were confidently predicting that the trial would not open today as planned because a witness protection programme had yet to be established and protection equipment in the court had not been installed. Many legal observers say the trial will probably be delayed after its opening sessions, and perhaps pushed into early next year. As for the location of the trial, officials were keeping it secret as late as yesterday - though it is likely to be held in a former government building converted into a court in Baghdad's fortified "green zone".
Officials at the tribunal, moreover, have refused to say whether Mr Hussein will be executed if found guilty in the Dujail case or spared to stand trial for a dozen other cases, as many Iraqis would like.
Mr Hussein's lawyers have complained that they received the bulk of their evidence only last month. According to experts close to the legal team, the witnesses' names in the dossier were blacked out, preventing the defence from contacting them to investigate the validity of their statements.
"They (the authorities) are trying a man in the midst of insurgency that's a threat to them, in a state that hasn't been built - it's an impossible task," says Toby Dodge, a London-based Iraq expert.
Mr Dodge argues that the tribunal, and the Iraqi government, have been torn between two uncomfortable options. The first is to rush to a trial on a single case and quickly execute Mr Hussein, but risk leaving the process open to questions of legitimacy. The second is to hold a long trial on a series of cases, but run the risk that Mr Hussein will use the platform - as Slobodan Milosevic, the former Yugoslav president, did at his trial at the International Criminal Tribunal for the former Yugoslavia - to appeal to his remaining constituency and embarrass western governments that assisted him in the past (see below).
In addition to Mr Hussein, the defendants in the Dujail case will include Barzan Ibrahim Hassan al-Tikriti, the deposed president's half-brother, and Taha Yassin Ramadan, his vice-president. Also on trial will be a former judge in Iraq's revolutionary court and four Ba'ath party officials from the Shia region.
They will be judged by a panel of five magistrates under the statutes of the tribunal, a unique hybrid that is legally and procedurally an Iraqi national court but will try suspects on crimes based upon international law. This combination allows the court to impose the death penalty - which most international tribunals have jettisoned - but also to disregard any clauses of Iraqi law that would exempt a head of state from prosecution for crimes committed while he was in power.
The court will not hear separate prosecution and defence cases as in the Anglo-American adversarial judicial system. Instead judges will discuss a dossier of evidence compiled by an investigating magistrate.
Critics have raised concerns about some of the tribunal's statutes. Perhaps most notably, the proof required to convict Mr Hussein and his co-defendants - they will be found guilty to the "satisfaction" of the judge - is substantially lower than the usual international requirement that guilt should be proved beyond reasonable doubt.
"These crimes really had their definitions in international law, and their legitimacy of their prosecution requires practices that are consistent with international standards . . . It's an odd and improper juxtaposition," says Richard Dicker, director of the international justice division at New York-based Human Rights Watch, the international human rights organisation. It says the tribunal's death penalty statute is "draconian", requiring that any sentence of execution be carried out within 30 days of a final judgment.
That Mr Hussein could be executed for the Dujail crimes before he stands trial for other offences has caused friction between the Shia and Kurdish blocs that dominate Iraq's government. The main Shia parties are under pressure from their constituents for a quick trial and an execution. But Kurds want to air the details of crimes against them - most notably the 1988 Anfal campaign and the gassing of Kurdish villages in Halabja, attacks that Kurds say left as many as 180,000 people dead.
The composition of the tribunal has been a political football, undermining perceptions of its independence. In 2004 Salem Chalabi, the tribunal's head, was dismissed by the government of Iyad Allawi, the then prime minister, but the next year staff connected to Mr Allawi were in turn purged because of their reported former membership of the Ba'ath party.
