Did Saddam Hussein have a fair trial?

Sentence: Saddam Hussein must be the most despicable man after Hitler. Every single epithet had been used to degrade him. "He is the devil himself, or the devil incarnate," people said.

Finally, this orgy ended when a tribunal sentenced Saddam Hussein to death by hanging. There was an application made by the prosecutors to sentence him to death before a firing squad. This was declined, as the Court may have thought a more merciful, less painful and un-dramatic death would be better and sentenced him to the gallows. But Saddam, who knew all along that he would be convicted and sentenced to death, said that he should be killed as a true hero before a firing squad, and not hanged as a petty criminal.

I heard leading intellectuals and persons of high profile almost jokingly refer to the extraordinary trial and say he should have just been killed when arrested. In countries where justice is taking a deep leap into an unfathomable abyss and the rule of the Kangaroos is taking over, Saddam's trial is a mockery.

What justice is there for a man who committed the most number of atrocities, a tyrant and murderer? Should he be permitted to be defended by lawyers and the case heard by a Tribunal. These sentiments are common amongst the commoners and vulgar. The notion of justice is something that is never in their vocabulary.

The hate the propaganda and media blitz about the man which is sufficient for people to parade in front of Court seeking extra-judicial justice. Like in the prison riots, which killed many Tamils, suspected of terrorist activity, no one raised a semblance of protest.

There was no proper inquiry and evidence was hushed up at the inquests. The finding was one that would appease the majority, who thought that every single terrorist deserved to die and the judicial process was too long winded and therefore a waste of time and energy.

When Saddam killed the Kurdish rebels by gassing, no serious attempt was made to bring him to justice. Only the jurists and human rights activist, especially the Amnesty International, demanded that the UN invade Iraq and prevent further genocide. No one took Amnesty International seriously.

Even today, Amnesty International is considered as an organisation that is interested in meddling with the internal affairs of countries, Governments and the Sovereign power of the people. Saddam's atrocities were well documented and carried graphic evidence of the people who had been subjected to chemical war fare.

When Saddam was installed as the leader of Iraq through a military coup, no one protested. He was regarded a friend of the West so much so that when he declared war against Iran, the US supported Iraq and Saddam against Iran, who was fighting, according to their reckoning, the Satan of Twentieth Century - the US. Israel, the enemy of the Muslims, supported Iran to fight Saddam Hussein and outs him from the leadership of Iraq. The battle was between two Muslim nations, equally divided, and it exacerbated sectarian violence.

Saddam was committing the most atrocious crimes against one section of the population who were Shiite and Kurds. They were fighting for independence from Iraq. One of the major crimes, Saddam was accused of was his 1988 order to crush the Kurdish rebellion by unleashing poison gas on them.

Women, children and the elderly succumbed to the chemical warfare. In the first attack, 70 people died and every single animal and bird found in the vicinity was dead. When this happened, the Amnesty International appealed and urged the UN Security Council to intervene in Iraq and stop the human rights violations.

They submitted report after report to the members of the Security Council with detailed photographs and graphics of the most barbarous act, by a human being, against a population, who were fighting to be liberated. But, no one ever thought of taking the reports seriously. For the Amnesty International, it did not matter whether violation of human rights emanated from Saddam Hussein or any other member state of the UN Security Council.

Similarly, when a pogrom of the Sinhala youth was unleashed by the Government of Sri Lanka, it was the Amnesty International who gave the first donation to the Bar Association of Sri Lanka to prevent further human rights abuses that were taking place in this country.

One would imagine that after the invasion of Iraq by the United States and the arrest of Saddam Hussein, the efforts made by the US Government, to bring him before justice without summarily executing him, would have been lauded by the Amnesty International. Logically, one would argue that after Hitler it was Saddam Hussein who carried out genocide against an ethnic minority and he does not deserve any justice.

But, if we are to behave differently from Saddam and uphold the rule of law, then we ought to have tried him for crimes against humanity under the International laws and the tribunals that have been set for that purpose.

Every war criminal, who had killed hundreds of people in the most inhuman, barbaric methods, such as using chemicals, still has to be tired according to the established principles and rules which have developed in the past several years, so that the accused war criminal is afforded all the privileges that are normally associated with criminal procedure and the rules of evidence.

This is the essential difference between barbarity and civilisation. To me the manner in which justice is dispensed in any country, especially relating to criminal law, clearly demonstrates the degree of civilization that country has achieved.

In Sri Lanka, the colonial powers showed the importance of a trial by jury, so that even the judges, who were mostly European, would not impose, on the accused, their sense of morality, culture and customs in deciding on the accused's guilt and permit his peers to judge him. The New Law Reports are full of judgments where these judges have shown the equanimity and composure without being coerced by other considerations.

No amount of hatred and anger, or other human emotion, could drive a human being to act against the perpetrator of crime as a criminal. The civilizing process generally permits a certain degree of flexibility in the approach to the question of guilt or innocence, through a jury or a judge, but abhors and denounces any attempt to thwart the independence of the judges and made them puppets controlled by other, in order to deliver judgements to suit the popular opinion of the citizenry.

The trial of Saddam Hussein teaches us an important fact. Saddam never had a system of justice which was independent of him. He controlled the judiciary with an iron fist. He had a scant regard and contemptuous attitude towards the western concept of the rule of law. Everyone accused was invariably found guilty. But now he laments that there was no proper trial and the entire court was an appendage of the Americans, who did and have done everything possible to thwart justice and deny him of a fair trail.

Even the most powerful man is now pleading for a fair trial and justice, which was denied by him to many millions under his iron rule. The lesson is, whatever position we hold, whatever power we wield, we should not, under the guise of any popular belief or myth, strive to subvert justice.

It was not his supporters or others, who ruled Iraq violating all human rights, who are espousing the manner in which Justice was carried out by the Tribunal. Respected journalists and jurists have likened the Tribunal to a Kangaroo Court.

We must not even, as a remedy to curb the increasing rate of crime or other social evils or menaces, strive to supplement justice by other methods. Very soon, we ourselves might be at the receiving end of such myopic policies.

The Jurist cried foul and compared and contrasted the Roman Statute which was the foundation of fair trails under international law. About the selection of Judges, the Roman Statute decreed that the Judges who are chosen should be those of high moral. Character, impartiality, integrity and who possess the qualifications required in their respective States for appointment to the highest judicial office and shall have established.

Confidence in criminal and procedure and the necessary experience, whether as judge, prosecutor or advocate in other similar capacities. It is said that the provision relating to. The appointment of Judges to the Tribunal did not encompass the provisions in the Roman Statute.

The experience in the criminal process, the professional background and experience had been omitted, thus the appointment of Judges to this Tribunal was far below the basic fundamental principles and essential criteria for the appointment of Judges. Therefore, the fact that any person could be appointed, without any experience in the field of criminal law, is a matter of great concern for those who value the rights of an accused, whether he is a war criminal or otherwise.

This may look ludicrous to those who believe that every person who gets into a dock as an accused is guilty of the crime as charged, or others to think that where there is an indictment, an accused and a dead body, who else would have committed that crime.

There is also a school of thought that believes the only way to reduce crime is to sentence the accused as speedily as possible and that the presumption of innocence is in a Statute Book by some misfortune and they do adopt the French method of presuming the accused guilty, unless the accused proves his innocence.

These are the barbaric phases which engulf every nation, though ostensibly the countries are civilised. When they themselves cannot understand, accept or appreciate the development of the law, which is a civilising process. For most of them, Prabhakaran's Kangaroo Courts should be replaced in order to tackle crime.

But in the world over, though most people in unison condemn the war crimes, the genocide that Saddam Hussein has committed, yet, at least a minority feels that Saddam Hussein did not get a fair trial. International law, protocols and other covenants signed by Iraq as a member State, during the time of Saddam Hussein, had been ignored when it came to the trial of Saddma Hussein they opined.

No Judge could be excused or removed or replaced if there was a serious allegation, based upon incontrovertible facts, that the Judge is biased. Still nothing could be done to remove on him. Similarly, Article 33 of the Tribunal Statute specifically prohibits a person who was a member of the Baathist Party of Saddam Hussein to hold any office. This is a clear violation and in contravention of international norms.

It is also stated that no provision guarantees the independence of Judges by any political organisations or Governments.

The Jurists, who were interested in bringing Saddam Hussein to justice on the evidence if proved and to punish him for crimes against humanity, were also interested in ensuring that this would not be called a mock trial and that all international rules, stipulations and covenants for a fair trial would be followed.

It is a universal principle that no evidence elicited from torture, coercion, duress or threat or any other form which is cruel, inhuman or degrading punishment, is accepted and could be led in evidence. But the most serious lacunas in the investigation and trial were that there was no express prohibition to establish evidence documentary or otherwise which had been obtained by torture.

In fact, the Iraq Court of Criminal Procedure is inconsistent with international law. The Iraqi Code of Criminal Procedure permits the court to accept a confession if it is satisfied with it and if there is no evidence which proves it to be untrue.

This falls far below the international law of principles, which require the exclusion of confessions extracted under torture. And, the other foremost principle which would be interpreted, as if it would negate the fairness of a trial of Saddam Hussein, is a fact that the prosecution need not prove the guilt of the accused beyond reasonable doubt.

This is a clear violation of the fundamental principle and a corner stone of criminal jurisprudence. The corner stone of a fair trial is that the prosecution should prove a case beyond reasonable doubt and it violates. Article ICCPR "that everyone charged with criminal offence should have the right to presume innocence until proved guilty according to law and no guilt can be presumed until the charges have been proved beyond reasonable doubt.

The development of criminal law could also be equated to the civilising process of human beings. It has gone over many hurdles in order to take its present form and shape. Saddam Hussein is the greatest war criminal of the modern day.

His crimes are heinous and there are no mitigating factors, yet he could have been done to death without the procedure and the legal tangles, the money and the time and energy, spent on the trial. But yet, civilisation demands that he be brought to justice and convicted according to law.

That is why even Saddam's brief has been the most unpopular brief a lawyer could get and that former Attorney General of US, Ramsay Clerk, became a member of the local team.

That is why a number of Jurists and organisations, like the Amnesty International, who pleaded with the world powers to intervene and prevent a humanitarian crisis in Iraq, when Saddam Hussein unleashed chemical weapons on civilians killing them instantly, would equally reproach the trial of Saddam Hussein if it was not held under the universal principles governing a fair trial, as it would be as bad as the crime he has committed.

A puppet Kangaroo Court without rules or procedure may be much more effective in sending the message to society than a Tribunal established under international law, which would take a longer time and cost more money to establish the guilt or innocence of an accused. But yet, the torch of civilisation is necessary to enlighten the spectrum of justice and endow us with the superior feeling of being a part and parcel of the judicial process, which establishes Tribunals or Courts, to be fair and just irrespective of the crime or the criminal. It is also a part of good governance.

The most intriguing piece of information revealed after Saddam Hussein was arrested was that the US subverted any attempt to charge and try him before an International Tribunal, as in the case of Solobodan Milsoevic of Serbia, in order to thwart any attempt by lawyers of Saddam Hussein to fish out documents and oral evidence of witnesses, of the complicity of the US's Reagan administration with Saddam Hussein, in aiding and abetting the then saint and now tyrant, to commit similar crimes against humanity between 1980 and 1988, when Iraq was at war with Iran.

The other important factor is that the trial was virtually a mistrial, as Saddam was prevented from obtaining the services of lawyers of his choice, because they were killed, abducted or forced to leave the country. The Judges who seemed to be even faintly impartial and did everything to ensure that Saddam had a fair trial were removed for reasons such as failing to impose order, being a member of the Baathist Party, being sympathetic to Saddam.

The manner in which the trial was conducted and its inevitable conclusion, has not brightened the prospects of democracy and of those who brought him to justice. There were jubilations in Shiite controlled areas but vehement protests in Sunni areas.

The world opinion is divided and many countries in the European Union are making serious allegations and contemptuous remarks about the manner the Tribunal conducted the trial and the punishment that was ordered, though here was unanimity on the guilt of the accused.

As, a fair trial is a sine qua non in a democracy, when for whatever reasons, ostensible or real, justice is subverted, corrupted or debased, the conclusions are inevitable. The verdict of such a Court or Tribunal will not be accepted or respected by reasonable, prudent men.

"Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognise the voice of their own conscience usually recognise also the voice of justice" - Alexander Solzhenitsyn. It is only if you protect the other mans rights, will you're rights will be protected.