The Saddam Hussein trial : an international law perspective

Abstract

The trial of the now defunct Saddam Hussein, former President of Iraq, and other members of the Iraqi establishment, was an important landmark in the development of international criminal and humanitarian law. The convergence of international and national legal principles that may stand in conflict at times made the trial a notable experiment in international jurisprudence. It was the first time that a member state of the United Nations chose, without the participation or involvement of the United Nations, to bring one of its former leaders before a national court to try him for crimes recognised under international law. According to White House spokesman Scott Stanzel, the ruling was a landmark in Iraq's efforts "to replace the rule of a tyrant with the rule of law". On the other hand former US Attorney General Ramsey Clark called the trial a "travesty" of justice. In my thesis I primarily compare and contrast both the substantive and the procedural aspects of the Saddam Hussein trials with international instruments and similar judicial proceedings in order to establish whether the trials were fair and whether international standards were respected. Crimes such as genocide and crimes against humanity achieved recognition as crimes through international law. The legitimacy of trying them is thus inextricably linked to whether the trial met international fair trial standards and correctly applied substantive international criminal law. The main aspects of the al-Dujail Trial, the appeal and all correlated procedures are examined in order to assess whether Saddam Hussein received a fair trial and whether the procedural and substantive rules have been observed in a way that justice was made and seen to be made. The independence and impartiality of the Iraqi High Tribunal was possibly threatened by the international interest in the case and the continuous involvement of the Iraqi Government in the proceedings. Saddam Hussein was on trial for charges of having committed in the 1980' s acts constituting crimes against humanity in the al-Dujail region of Iraq. At the time the international law offences of genocide, war crimes and crimes against humanity were not part of the criminal offences prescribed by the Iraqi laws. These crimes were first introduced into Iraqi law in December 2003 when the occupation authority in Iraq issued by legislative order a statute establishing an Iraqi special tribunal. Therefore the question whether the principle of 'nullum crimen sine lege / nulla poena stne lege' is thoroughly examined. Law Number 10 of 2005 passed by the Iraqi authorities and promulgated only one day before the commencement of the Dujail trial is the main piece of legislation which is methodically and extensively examined throughout the thesis. This piece of legislation established the Iraqi High Tribunal giving it jurisdiction over Iraqis and non-Iraqis residing in Iraq accused of committing the international crimes of genocide, crimes against humanity and war crimes between July 1968 and May 2003.