Global Policy Forum

By Robert Verkaik

DETENTION BEFORE TRIAL

Saddam Hussein has been held in custody by the US since December 2003. Under international law, a defendant facing a criminal prosecution must be brought before a court as quickly as possible. But his first appearance before the Iraqi tribunal was not until July 2004, seven months after his capture.

DEATH PENALTY

The death penalty is not prohibited under international law. But it has been outlawed in Europe for 50 years, and Britain is one of more than 40 countries that are signatories to the protocol of the European Convention of European Rights which outlaws the death penalty. If Saddam is found guilty and then sentenced to death, his execution will be seen as a stain on international justice.

A SHOW TRIAL

International human rights groups fear that the trial is not about Saddam's guilt or innocence. In their attempts to justify the invasion of Iraq, Tony Blair and George Bush have made inflammatory statements about Saddam. Contempt of court rules that should restrict prejudicial coverage of a criminal trial have been ignored. Pictures of the crime scene of the village of Dujail, accompanied by assertions of Saddam's guilt, were beamed around the world long before the case opened yesterday.

THE IMPARTIALITY OF THE COURT

The Iraqi Special Tribunal that will try Saddam was established under the Coalition Provisional Authority. But many believe the US State Department, the Pentagon and the US Department of Justice have been guiding it behind the scenes.

THE JUDGES

Questions remain over the selection, experience and impartiality of the five judges. Only the presiding judge has been identified. At least two of the others have never sat as judges before. DISCLOSURE OF EVIDENCE

Not all the witnesses are expected to be identified - which may, given the security threats to them, be a proportionate response. However, it could handicap the defence. Saddam's legal team also claims it has been denied time and resources to examine the case against him.

THE CHARGES

The charges boil down to Saddam signing death warrants in his capacity as President, raising the question of whether the tribunal can convict him for an offence of obedience to Iraqi law.

THE STANDARD OF PROOF

The standard of proof in British courts and many other European jurisdictions is "beyond reasonable doubt". But the Iraqi court rules are silent on the standard of proof to be adopted in this case. The judges could convict Saddam on a much lower standard of proof.

INTERNATIONAL INPUT

Unlike the UN war crimes tribunals in Rwanda and the former Yugoslavia, the Iraqi court will have no international representatives, undermining its authority to hear such heinous crimes.

DEATHS OF LAWYERS

The murders of defence lawyers has undermined assurances from the coalition and the Iraqi government that they can guarantee the security of participants. It has also led to a temporary boycott of the trial by the lawyers and strengthened calls for the trial to take place outside Iraq.