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Saddam Trial Disappoints Legal Experts

Iraq's former leader Saddam Hussein faces new charges of genocide and crimes against humanity in the 1980s crackdown against the Kurds, including the infamous gassing of thousands of civilians in the village of Halabja. The charges were announced Tuesday.

The current trial of Saddam and seven co-defendants on another charge, often disrupted by violence and courtroom theatrics, has so far disappointed international law scholars. And they say enormous challenges lie ahead as the case goes forward.

After capturing the defeated Iraqi dictator, the United States helped the Iraqi Governing Council set up a court to try Saddam and members of his regime for alleged war crimes. They planned 12 consecutive trials of so-called "mega-crimes", including the invasion of Kuwait; ethnic cleansing against the Kurds; and the massacre of Shi'ites. Those charged may face the death penalty.

Instead of a trial outside Iraq, an Iraqi Special Tribunal was created in Baghdad, using Iraqi judges and prosecutors trained by a team of U.S. legal experts.

For U.S. international law scholars, such as Leila Sadat, of Washington University in St. Louis, Missouri, hopes for success were high:

"The purpose of a trial is to set aside violence to show that no man is above the law, not even the head of state if he commits terrible crimes,” she told us. “And to try to reestablish legitimacy, democracy, human rights - moving forward - also showing that Iraq can be a country, subject to the rule of law."

But soon after the first trial began last October, in which Saddam and his co-defendants are charged with killing 148 Shi'ite men in the town of Dujail after a 1982 assassination attempt, a defense lawyer was seized and killed. Three weeks later a second lawyer was killed and another wounded.

Soon after, Saddam told the tribunal to "go to hell" and the trial proceeded briefly without him.

In January, Chief Judge Rizgar Amin resigned and was replaced by Judge Raouf Abdel Rahman.

"This trial has not gone as anybody has hoped," says Michael Scharf, a law professor from Case Western Reserve University, helped train the Iraqi court officials.

“It has gone, however, as I expected it might,” he adds. “Whenever you have an international war crimes case involving a former leader, and his strategy is to try to disrupt and derail the trial, it presents enormous obstacles and challenges for the judges."

Saddam's assault on the court's legitimacy is just part of its woes, says Northwestern University law professor David Scheffer. He says the trial has also been plagued by questions of jurisdiction, and whether some judges have a conflict-of-interest.

"These are issues that just keep coming up. They never die. And so if the court would just handle those and deliver very professional written judgments with respect to those issues, I think that would settle the court down a little bit and certainly impress upon the defendants that this is a process that's here to stay, and that it's going to be completed."

Completing the process include a challenge from Saddam's defense

"What Saddam Hussein is going to do in the second half of the trial is try to argue that what he did to the town of Dujail is the same thing that the United States has been doing to towns across Iraq and Afghanistan when faced with terrorism and insurgents, says Professor Scharf. “(He) will raise the defense that he did the same thing against insurgents and terrorists that the United States is doing in Iraq and the issue that the United States and the prosecutor is going to have to prove is that the two cases are distinct."

Security is another big challenge facing the Iraqi Special Tribunal, says David Scheffer. "It doesn't matter whether or not the courtroom is the most secure room in the world. I think what matters is what's happening outside the courtroom doors. And if Iraq is, in fact, descending into civil war, that has a tremendous impact on the ability of this trial to proceed smoothly."

If Saddam is found guilty in the Dujail case, Iraqi law calls for quick execution, thus preventing him from being tried for other alleged war crimes. Leila Sadat says that would be a mistake: "If it's solely (about) retribution and punishment of Saddam, it doesn't set Iraq on to a new path of justice and the rule of law. And that's really the ultimate legacy, you want a trial to be kind of the defining moment for a country, where the new political elite see themselves as bound by the norms established by the trial. "

Iraq may face other defining moments in the coming weeks as it tries to create a functioning government and resolve sectarian conflict. But legal scholars are still hoping that the Saddam trial will prove to be a milestone event - and not the circus sideshow it has sometimes appeared to be.