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Questions Raised Whether Saddam Hussein Can Get a Fair Trial

The trial of former Iraqi president Saddam Hussein is scheduled to resume in Baghdad later this month.

The Iraqi Higher Criminal Court, trying Saddam Hussein and others, was originally established several years ago with the help of the U.S.-led Coalition Provisional Authority. The Iraqi government and legislature subsequently adopted the court's statutes with minor changes.

On October 19, Saddam Hussein and seven others appeared before the court charged with crimes against humanity, the torture and killing of more than 140 people after a 1982 assassination attempt against him in the town of Dujail. The former Iraqi leader pleaded not guilty. After a three-hour session, the trial was adjourned until November 28, to give lawyers more time to work on Saddam Hussein's defense.

Derek Gilman is an attorney who helped Iraqis draft the statutes of the special court trying Saddam Hussein. He says the former Iraqi leader will also be charged with war crimes and genocide stemming from other atrocities.

"We are, of course, familiar with the Anfal campaign in which 180,000 Kurds were killed, which also includes the gassing of the town of Halabja in which 5000 Iraqis were killed," he said. "And the suppression of the Shia uprising in 1991, in which thousands of Shias were killed. And the campaign against the marsh Arabs in 1991 in which the marshes, the greatest wetland system in the Mid East was destroyed and turned into a dustbowl."

From the outset, Saddam Hussein and his lawyers said they did not recognize the court's authority, because the United States, as an occupying power, helped set it up.

Various human rights organizations, lawyers and experts have asked whether Saddam Hussein can get a fair trial.

Donna Arzt is an international criminal law expert at Syracuse University and adviser to the prosecution team in the Sierra Leone war crimes tribunal. She says from the start, there were questions whether the tribunal trying Saddam Hussein could be impartial.

"The fact that they held Saddam Hussein for so long without giving him access to an attorney is a problem," she said. "Normally, you should be able to see an attorney certainly within 24 hours. And it took about a year before they allowed him to see an attorney. And then there was another few months before they even told him what he was being charged with."

Some experts point to shortcomings in the law creating the tribunal that may deprive Saddam Hussein of the right to a fair trial.

Richard Dicker, director of the International Justice Program for Human Rights Watch, says it's unclear whether the law respects what is known as "the right to remain silent."

"There's contradictory language between the Iraqi criminal procedure code and what's in the statute for the tribunal dealing with the right of the accused not to answer questions and not to have that silence be considered as evidence against him," he said. "The accused must have the right to remain silent without that silence being interpreted as an indication of his guilt."

Mr. Dicker says another concern is the standard of proof that is required to obtain a conviction at the tribunal.

"In the Iraqi law, it's something between the judges being satisfied by the evidence that the accused is guilty and the judges having the conviction that the accused is guilty," he added. "We feel that's too low a threshold, too low a hurdle and that the threshold for guilt, for conviction of the crimes alleged, must be 'beyond a reasonable doubt' standard of proof."

Mr. Dicker also says Human Rights Watch is against the death penalty, a punishment the court can mete out. He says the desire to execute Saddam Hussein, if found guilty, may have more vengeance driving it than justice.

But others see it differently. Attorney Marc Vlasic helped train the Iraqi judges sitting on the special tribunal and he believes Saddam Hussein can get a fair trial.

"And my reason for saying that is the fact that I have spent time with these judges who are not coming forward to murder Saddam," said Mr. Vlasic. "They are doing so because they feel it is very important that you have a trial to review the evidence and to weigh the evidence carefully before making a decision. If those people involved in the tribunal were just out to murder Saddam, it would be a lot easier to put a bullet in the back of his head than go through this process. And particularly, putting their lives and the lives of their families on the line to ensure the rule of law in Iraq, which is what I believe they are doing."

Two defense attorneys have been killed recently and in the past year, six officials of the Iraqi special court have also been murdered, one of them a judge.

Michael Scharf from the Case Western Reserve School of Law is another leading U.S. expert on international law who helped train Iraqi judges. He says the challenge of a fair trial is great.

"In a case of this magnitude, mistakes are always made, there are always errors and missteps," he explained. "And at the end of the day, the question the world is going to have to say is not whether he got a perfect trial, or a textbook trial - but rather, given all the errors and missteps that are likely to occur, were they so significant that he was denied justice, that there was a miscarriage of justice. And I do believe at the end of the day, when all of the evidence comes out, the people will look at this trial and say, 'yes, it was fair.'"

For Ms. Arzt, adviser to the Sierra Leone international war crimes tribunal, Saddam Hussein must get a fair trial for one important reason.

"It's important for the world to see that he is getting a fair trial, since he was so unwilling to give anyone else a fair trial. It would be an important statement to make that now we are going to give it to you even though you never provided those rights for anyone else," she explained.

Experts say there is another potent incentive for a fair trial: the court of public opinion. They say the world will be watching to see if this will indeed be an impartial tribunal or simply a show trial.