David Hirsh examines the trial of Saddam Hussein

Why would someone want to shoot a judge who is working on the trial of Saddam Hussein? ‘Barwez Marwan and his close relative - who was also working at the tribunal - were gunned down outside their home on Tuesday, police said.’

Was the Iraqi ‘resistance’ angered by the slowness of the tribunal to build a case against the old dictator? Were the gunmen disgusted at the secrecy that surrounds the Iraqi tribunal? Were they incredulous that the Americans had refused to recognise the global significance of Saddam’s crimes against humanity by allowing an international court to organise the trial?

No. It would seem not. Some elements of the ‘resistance’, it would appear, are nostalgic for the Saddam regime. Some, no doubt, even now, would wish to salute the courage, strength and indefatigability of the man who oversaw the wholesale gassing of Kurdish villages, the killing of hundreds of thousands of Shia’s and the torturing to death of the enemies of the regime and their families. The murder of Barwez Marwan was an act of solidarity with Saddam Hussein.

Following the Second World War, an international tribunal was set up at Nuremberg to prosecute the Nazi leadership for crimes committed during the war. At Nuremberg two principles were recognised and enacted. Firstly, that individuals are responsible for what they do, even when they are part of a state machine, whether they are only obeying orders or whether they are only giving orders. Secondly, with the formulation of the new charge of ‘crimes against humanity’, that mass killing is understood as the business of humanity as a whole rather than as just the business of particular nations or states. Such crimes are, as Edgar Faure called them, criminal enterprises against the human condition. Or as Hannah Arendt said, “an attack upon human diversity as such, that is, upon a characteristic of the ‘human status’ without which the very words ‘mankind’ or ‘humanity’ would be devoid of meaning.” These principles have been further entrenched by the more genuinely international tribunals that were responsible for prosecuting crimes committed in the Former Yugoslavia and in Rwanda.

After the capture of Saddam, the UN Security Council could have set up an ad hoc tribunal for Iraq to try the leading figures of the Saddam regime in an international court. An ad hoc tribunal would have been best placed to organise the trials, both from a practical point of view and also from the point of view of strengthening the principle that heads of state are subject to international humanitarian law. Practically, an international tribunal could have drawn on the significant experience, expertise and personnel that have been building the institutions of international criminal justice with modest but significant success; issues of the openness of the court and its security, as well as the safety of witnesses could have best been addressed by an international tribunal. And the principle of international justice would also have been best strengthened by that course of action.

Instead the Bush regime insisted on an Iraqi tribunal. Saddam’s initial public hearing as a prisoner, on 1 July 2004, was amateurishly organised. Saddam was allowed to make speeches from the dock; the hearing was not public; television footage was controlled by American forces and the hearing appeared to be timed for the American evening news; only American journalists were allowed into the court room.

President Bush announced the end of major combat in the Iraq war on 1 May 2003. Twenty-two months later, the only hint of an actual tribunal for anyone involved in the Saddam regime was one short formal preliminary hearing of Saddam himself. In contrast, Germany formally surrendered in May 1945, to allied powers that were serious about holding the Nazi regime legally and publicly to account for its crimes. Five months later the main trial started at Nuremberg, in a city that was still in ruins, and it was completed Seventeen months after the end of the war in Europe. The Bush regime has also been waging an explicit battle to prevent the new International Criminal Court from functioning.

Given that the opportunity to try Saddam and his leadership in an international court has already been lost, there can be no principled objection to Saddam going on trial in an Iraqi court. The crimes against humanity trials of Adolf Eichmann and Klaus Barbie, for example, were successfully held in Israel and in France. Belgium has convicted people for genocide in Rwanda.

The trial must be public. The trial must be based on the principles of international humanitarian law and generally accepted legal norms of due process. Saddam must have the right to, and the resources for, a proper legal defence. The tribunal must rely, at least in part, on the experience and expertise that has been gathered together by the Yugoslavia and Rwanda tribunals and the new ICC. Saddam should not be subjected to the death penalty.

Why? Why should Saddam be afforded so many rights that he denied to so many people? Because a trial is about justice. Because this trial is about drawing a line under the old regime and promising something better in the future for Iraq. Because a trial is about finding and publicising the truth of what happened, and proving it ‘beyond reasonable doubt’. Because Saddam is a criminal and should be treated as one. There is no better way to strip an individual of his aura of satanic greatness than by subjecting him to the passionless and daily rigours of a criminal trial. He will be forced to hear the case against him, to face witnesses, to undergo cross-examination, in a context in which he is no longer the boss. He should be treated politely but firmly by the judge, and forced to answer for his crimes.