In land at war, risky road leads to Saddam trial

A defiant defendant, a court's shaky foundation, a war flaring outside the makeshift Iraqi courtroom -- all point up the uncertainty and the risk in the plan to put Saddam Hussein on trial.

At Thursday's arraignment of the ex-president, the sweep and vagueness of the charges against him -- invasion, mass killing, suppressing revolts -- made clear that Baghdad's new government is far from ready for a full-blown trial.

One legal expert wondered afterward whether Saddam's court appearance was meant merely as a show of strength by the interim regime, handed limited sovereignty just three days earlier by U.S. occupation authorities.

"A cynic might say the only reason it happened yesterday was really related to the handover, as opposed to proper timing for the legal proceedings," said Hanny Megally, Middle East specialist at New York's International Center for Transitional Justice.

That legal timetable is the key uncertainty.

A trial is not expected before early next year, when an elected government is supposed to take office. By then investigators may have put together a detailed case. But many in Iraq worry those elections may be postponed if political violence continues.

Then, elections or no elections, putting Saddam in the dock amid an ongoing insurgency would risk the "Milosevic effect" -- emboldening his followers in their anti-U.S. attacks, just as ex-president Slobodan Milosevic has rallied supporters in the former Yugoslavia with his defiance at his war crimes trial.

Iraq's ousted leader may have been rehearsing his own "Saddam effect" on Thursday, upbraiding the judge as a tool of the Americans, and declaring of himself, "Saddam was the people."

Iraq scholar Juan Cole identifies another risk in a Saddam trial, in laying bare, for all Iraqis to see, the whole bloody story of the oppression of Kurds and Shiite Muslims by a Baath Party regime run by Sunni Muslims.

"Spending months on these kinds of investigations has the potential for provoking ethnic violence," notes the University of Michigan professor.

Concerns like these might tempt Iraq's new leaders to prosecute Saddam in secret.

Iyad Allawi, interim prime minister, said last week the trial would be open, but earlier he'd suggested closing it. His reason: to keep Saddam from broadcasting embarrassing tales about past links to foreign governments. The U.S. government was among those that quietly supported Saddam's Iraq in its 1980-88 war with Iran.

Thursday's session already was closed in good part, off-limits to the public and all but a few journalists. And Saddam's voice was suppressed on the videotape aired on Iraqi television.

Such issues of openness present a dilemma, Megally said.

If an open trial is conducted as Saddam loyalists and other resistance fighters press their attacks on U.S. troops and their Iraqi allies, "judges would be very much intimidated, and eyewitnesses may not feel they can be protected."

On the other hand, a trial "carried out behind closed doors, under heavy security, relatively inaccessible to the population at large, then loses much of the value of the process."

A secret trial would further undermine the legitimacy of a process that international lawyer Daoud Khairallah says lacks much legitimacy to begin with.

The Washington attorney, an Arab-American expert in Mideast law, said he would like to see Saddam punished as an example for other dictators -- but only after a sound legal proceeding.

He said the U.S. invasion and overthrow of the Baathists were not sanctioned under international law. Speaking of the interim Iraqi government, he said "one cannot say that this government or this court represent in any way Iraqi sovereignty."

Only an international tribunal trying Saddam for crimes against humanity would have true legal standing, Khairallah contended. He said Saddam was correct on Thursday when he pointed out the existing Iraqi constitution gives him, as president, immunity from prosecution in Iraq.

Megally and other human rights specialists agree there's a need for at least an international element in an Iraqi trial, such as foreign judges sitting with Iraqi judges. But few expect the new Baghdad regime to relinquish any control -- except for what is already ceded to the Americans.

At an estimated cost of $75 million, the U.S. government is financing and overseeing the tribunal investigations, sifting through mounds of documents, training the prosecutors, investigators and judges.

For many Iraqis and other Arabs, any trial of Saddam inevitably will be seen as an American production.

That was already apparent in Friday's Arab press reports, Megally said. "It was seen very much as the U.S. behind the scenes pulling the strings, whether that's a fair perception or not."