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Saddam's trial will test the legitimacy of the new Iraqi government

By Don Rothwell - posted Monday, 12 July 2004

Internal security, the promotion of democracy, and the growth of a postwar economy are fundamental to the success of the new Iraq. Another issue of equal importance is the looming trial of Saddam Hussein.

Since his capture in December last year, Saddam has been a prisoner of war in United States custody. His status changed when his legal custody was transferred to the new Iraqi government. Charges will be laid against him for crimes committed under his regime. How the Iraqi government handles his prosecution and trial will be a significant test of the legitimacy of the new administration, and will play a crucial role in the restoration of law and order throughout Iraq.

Saddam will not be the only prisoner handed over by the US and its allies. Members of the Ba’athist regime included in the famous "deck of cards" who have been captured will also be handed over. Up to 6000 other detainees will also be transferred following the issuing of arrest warrants.


Many will be Iraqis detained during the period of occupation and arrested on a variety of charges ranging from common criminal offences to more serious terrorist-related charges. Developing appropriate procedures for Iraqi courts to allow for the administration of justice is therefore a priority for the new government. Most attention, however, will focus on the trial of Saddam and his associates.

Throughout last year there was much speculation as to what criminal justice mechanism would be adopted for Saddam. Would he be put on trial before an international criminal tribunal such as those established for Yugoslavia and Rwanda? Would the newly established International Criminal Court have a role to play? Or would a national tribunal be established?

The model adopted was to allow Saddam and other Iraqi war criminals to be brought before a newly created Iraqi tribunal, and in late 2003 the Iraqi Special Tribunal was established. This remains a fledgling institution and, while it has a statute, judges and prosecutors, its procedures are vague and much in need of clarification.

Fortunately there's a great deal of international practice regarding international criminal tribunals which can be drawn upon. This will allow the Iraqi tribunal to use tried and tested procedures and, while making certain adjustments for local conditions, be able to proceed with confidence that the trial mechanisms are workable.

The tribunal has jurisdiction over the crimes of genocide, war crimes and crimes against humanity committed since 1968. This has created speculation as to precisely what crimes Saddam may be indicted for.

As well as possible charges of genocide and crimes against humanity committed against his people, there is the potential for charges arising from the Iran-Iraq war and the 1990-91 Gulf War, when Saddam invaded Kuwait and attacked Israel.


If Saddam is charged with war crimes arising from these conflicts this will further internationalise the tribunal's operation and create additional demands that it adhere to standards of international law.

One standard will be judicial independence. Questions have been raised as to the independence of the Iraqi judges appointed to the tribunal. There are also concerns as to their capacity to conduct such important trials. In addition, it is clear the judges will come under pressure from some sectors of the Iraqi population to swiftly convict and issue the death penalty.

To counter these concerns, the tribunal's statute provides for the appointment of international judges. Though none has yet been appointed, this could allow for experienced international criminal judges to be appointed, creating a mixed tribunal of Iraqi and international judges.

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About the Author

Professor Donald R. Rothwell is Professor of International Law, ANU College of Law, Australian National University.

Other articles by this Author

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Related Links
Feature: Iraq in Transition
Sydney Centre for International and Global Law
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