The trial of Saddam Hussein and his seven co-defendants who are accused for crimes against humanity concerns human rights lawyers and human rights groups whether the defendants will have a fair trial under current conditions in Iraq. The trial began on the 19^th of October 2005 and it was adjourned for 40 days to give the defence more time to prepare. On November 28, the trial resumed but it was adjourned until December 5 to allow one of Hussein's co-defendants to obtain a replacement for his lawyer who was murdered. In the same day a former U.S attorney general and a former Qatari minister inducted as advisers to the defence team. On December 5, the defence team walked out of the court because the Presiding judge refused to let the two foreign advisers to speak at the trial. Finally, after an adjournment of the session for 90 minutes the trial resumed.

It should be noted that since October 19 two defence lawyers were murdered, others were wounded and one fled the country after death threats. There was also a collusion to kill the chief investigator, and witnesses were threatened.

The United Nations human rights chief in Iraq said that the UN are anxious about the tribunal and that its legitimacy has to be examined because it has been seriously challenged[1]. Hussein and his co-defendants are tried by the Supreme Iraqi Criminal Tribunal. This, according to Human Rights Watch is an Iraqi court mandated to try former government officials and has the authority to prosecute Iraqi nationals for the crimes of genocide, war crimes and crimes against the humanity. Five Iraqi judges make up a trial chamber[2].

It should be mentioned that Hussein faces death by hanging if convicted. This, as Human Rights Watch points out, is of grave concern because there is a requirement to execute a convicted person within 30 days of the final decision.

Further, the right to a fair trial provided in Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights (ICCPR) will be undermined. The right to a fair trial requires that the court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused[3].

 In other words, the charge should be proved beyond reasonable doubt in order for the accused to be found guilty. This rule is applied by the International Criminal Court[4], which tries crimes against humanity, war crimes, the crime of genocide and the crime of aggression[5]However as Human Rights Watch notes the Iraqi Criminal law provides that an accused can be found guilty on the satisfaction of the judge[6]. This is highly problematic because in a criminal trial where the right to life of the defendants is at stake the establishment of each of the elements of the crime against humanity will be based on the satisfaction of the judges. The comment of the Human Rights Watch is illustratively of the situation: This standard of proof is insufficient to assure a fair trial, particularly given the large evidentiary base and the multi-faceted elements of the crime that must be proved in trials for genocide, war crimes and crimes against humanity. A conviction must be based on a reasoned judgment that demonstrates the establishment of each of the elements of the crime beyond reasonable doubt[7].

Having described the general situation regarding Hussein's trial with particular reference to the right of fair trial as this is provided in International Human Rights Convention and applied by Courts and Tribunals it can be said that the defendants are under great danger to be sentenced to death without their fair trial rights been respected. No one is, of course, supporter of alleged war crimes but on the other hand every defendant should have his rights respected. Only if these rights are respected the possibility of miscarriage of justice will be eliminated. Concluding this report a suggestion will be made: it is safer from a human rights perspective if the trial moves to the International Criminal Court based in The Hague.

[1] See the Sydney Morning Herald 06/12/2005 at http://www.smh.com.au/news/world/un-not-satisfied-with-trial-of-saddam/2005/12/05/1133631200987.html.

[2] See http://www.hrw.org/.

[3] See Barberá, Messegué and Jabardo v Spain, European Court of Human Rights, Judgment of 6 December 1988, para.77

[4] See Rome Statute of the International Criminal Court Article 66(3)

[5] Ibid Article 1.

[6] See Human Rights Watch Briefing Paper part IV.16 October 2005. Found at http://hrw.org/backgrounder/mena/iraq1005/index.htm

[7] See Human Rights Watch Briefing Paper part IV.16 October 2005. Found at http://hrw.org/backgrounder/mena/iraq1005/index.htm