The trial of former Iraqi president Saddam Hussein is scheduled to resume in Baghdad next week (Nov. 28). If convicted, Saddam Hussein could face the death penalty, a punishment strongly opposed by human rights groups and unavailable to international tribunals.
The statutes of the Iraqi Higher Criminal Court, set up to try Saddam Hussein and others, are a mixture of international law and domestic, Iraqi legislation.
Experts say it is a domestic trial because it has Iraqi judges, Iraqi prosecutors and is taking place in Baghdad. At the same time, it has an international flavor because it uses the statutes of various international tribunals - such as the one trying former Yugoslav president Slobodan Milosevic in The Hague.
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.
Linda Malone is an international law expert at the College of William and Mary. She explains why prosecutors decided to start with the Dujail case.
"In many ways, the Dujail incident and massacre was one of the easiest to prosecute in terms of the clarity of the evidence, the gathering of the evidence, the basis for the legal charges, the lack of strong defenses to the charge. And so as a result, it's the neatest package to proceed with," she said.
Ms. Malone says the former Iraqi leader will also be charged with genocide stemming from other atrocities, such as the 1981 campaign against the marsh Arabs of southern Iraq and the Anfal operation (1988) in which 180,000 Kurds were killed. And she says that Saddam Hussein will also face charges of war crimes as a result of the invasion of Kuwait (1990).
If convicted, Saddam Hussein could face the death penalty.
Laurel Miller, international law expert with the U.S. Institute of Peace, says the death penalty option is the main difference between the Iraqi court and other tribunals.
"The international criminal tribunals for the former Yugoslavia and for Rwanda are courts that were created by the United Nations and they operate under U.N. auspices. And for that reason they do not - among others - they do not have the death penalty option," said Laurel Miller.
Experts say in setting up the tribunal trying Saddam Hussein, Iraqi officials were adamant about having the death penalty as an option.
Michael Scharf is a leading U.S. expert on international criminal law at Case Western Reserve School of Law. He helped train some of the Iraqi judges sitting on the tribunal and he says they explained to him their rationale for having the option of putting Saddam Hussein to death.
"First of all, they said 'we are fiercely proud of our [Iraqi] legal traditions that go all the way back to the Code of Hamurabi, the first ever criminal code that was invented for the world, in our country. All during that period we had the death penalty and it is part of our legal tradition and we are not going to give it up.' Secondly, they said, look, these are the worst crimes known to humankind and the people at Nuremburg were executed for these crimes and even the human rights treaties allow for the death penalty in very serious cases," he noted. "Thirdly, they said, they were very worried about what they called 'the Napoleonic precedent' which was basically that if Saddam Hussein was convicted, but not executed of the worst crimes, then he would probably be pardoned some day or given amnesty or escape and come back and take over Iraq again and start his reign of terror all over again' just as Napoleon did after he escaped the first time he was captured 100 or 200 years ago."
Various experts and human rights organizations have criticized the Iraqi tribunal's decision to have the death penalty.
Richard Dicker is Director of the International Justice Program for "Human Rights Watch."
"The death penalty, from a human rights perspective, is a cruel and inhuman punishment. It should not be applied," said Mr. Dicker. "It is not applied by any of the international tribunals for Yugoslavia, Rwanda, Sierra Leone, the International Criminal Court. It should not be applied here. Our concern is that it is a cruel and inhuman punishment, as I said, but also [that it's] a continuation of punishment carried out by the former regime. Moreover, there is no possibility in the law that a death sentence can be commuted to life imprisonment. That violates very basic international law guarantees that insist there must be the right to commutation of sentence once it's issued."
A fallout from the decision to have the death penalty option has been that many countries have refused to provide legal assistance to the special Iraqi tribunal trying Saddam Hussein. Because of that, U.S. experts have stepped in and helped train Iraqi judges in international law. And as Linda Malone says, some of her students have offered their support as well.
"So my William and Mary law students have been working extremely hard to write very lengthy memos, just as law school students in the U.S. do for judges in the U.S. court system on some of the issues that the tribunal is addressing, trying to give them an impartial assessment of what the law is on whatever issue needs to be addressed," she explained.
Ms. Malone and other experts say its is essential for Saddam Hussein to get a fair trial. They say if the special tribunal conducts fair proceedings, that will be a major step in showing the international community that Iraq can deliver world-class justice.