Saddam still spreads terror

Andrew Gilligan on the fear and confusion surrounding the trial of the former Iraqi dictator

He lives in miserable confinement, his location a closely guarded secret, constantly shifted from place to place. He is deliberately kept isolated from the outside world. He knows that when all is said and done, he will probably be killed. Such is the lot of Salem Chalabi, the Iraqi lawyer in charge of setting up the court which will try Saddam Hussein.

Salem is sometimes known as the 'Good Chalabi' to distinguish him from his naughty Uncle Ahmed, the former favourite of the neocons who has tragically fallen out with Washington over fraudulent WMD intelligence. But at the moment Salem is encountering as many problems as his uncle with his personal career goals. Judges are refusing to work for his Iraqi special tribunal after five potential candidates were murdered by insurgents. For the safety of the staff who have been hired, none except Mr Chalabi is being identified publicly. In an interview this week with the Associated Press, Mr Chalabi spoke poignantly of how he feared for his life, worked from a secret office and seldom slept two nights in the same bed.

Saddam, by contrast, seems to be enjoying a rare period of personal stability in what Hello! magazine might not call his lovely cell, believed to be at Camp Cropper, the US prison for 'high-value detainees' at Baghdad airport. According to US officials, the former Ace of Spades has air-condition

ing, an hour's exercise a day and the use of a private bathroom. He is not, the officials insist, being sexually humiliated, attacked with dogs or held naked on a lead.

To be sure, Camp Cropper does not make the ideal retirement spot for members of the ex-dictating classes. The cells are tiny and windowless, made of concrete blocks inside a fortified aircraft hangar. Saddam is on 24-hour suicide watch — so the lights are always on. The famous leaked Red Cross report about detainee abuse, known mainly for its revelations of the horrors of Abu Ghraib, also condemns conditions at Cropper as 'a serious violation of the Third and Fourth Geneva Conventions'. Most of the high-value inmates, the report said, were kept in permanent solitary confinement, never allowed to mix with others and denied access to their families.

Yet it is hard to avoid the strictly interim finding that so far has got the better of the judicial process. According to US and British officials, not only has the monster refused to give his interrogators much helpful information; he seems to have retained the power to scare others into silence too. One US source admits that the case against Saddam and the top leaders of the former regime is being handicapped by the refusal of important witnesses to testify against them. 'We have a great deal of evidence about what was done,' he says. 'Survivors, disinterred bodies, written orders from commanders. What we need more of is evidence to link it to the leadership. But people know that if they talk to us there may be reprisals against their families.' Saddam may be entombed, but his claws can still reach through the concrete walls, the 24-hour light and the barbed wire to control at least a part of Iraqis' minds.

For the White House, the trial of Saddam Hussein was supposed to be the culmination of George Bush's first term, the 'signature event' which would remind US voters of America's achievements in Iraq. As an earlier piece of presidential choreography, last spring's 'Mission Accomplished' photocall on the deck of the USS Abraham Lincoln looked ever more ill-judged, American officials put their faith in Saddam. His capture would, they predicted, 'significantly reduce' the insurgency as heartbroken Baathist remnants lost hope. Never mind the missing WMD; a Saddam

trial would lay out the horrors from which Iraq had been delivered and remake the humanitarian case for the dictator's forced removal, just in time for polling day.

In discussions with journalists during the euphoric 'we got him' phase after Saddam was captured late last year, Coalition officials unabashedly anticipated a televised trial between the Republican national convention in August and the election in November. Even as late as March this year, the US ambassador-at-large for war crimes, Pierre-Richard Prosper, was predicting a trial 'this year'. Then came Fallujah, and Najaf, and Abu Ghraib. The timetable is still theoretically in place. But, not for the first time, American plans have been exposed as wishful thinking.

Far from diminishing, the insurgency has, of course, ballooned to a point where it is seriously impeding the Iraqi war crimes court. In his AP interview this week, Mr Chalabi explicitly stated that even transferring the approximately one hundred alleged regime criminals now in American hands to the custody of his court would be 'premature'. The court, he said, was 'not ready', despite the optimistic predictions from Britain, among others, that the transfer of sovereignty would also include Iraqi control of high-value prisoners. Judge Richard Goldstone, the first prosecutor at the UN tribunal for the former Yugoslavia, says, 'I simply don't see how you can contemplate putting Saddam on trial if there is no security. There needs to be security for the defence, judges and witnesses.'

A more fundamental question concerns the court's credibility and effectiveness. Iraq's pre-war judicial system was a travesty, and Iraqi judges have no experience in trying cases like this. Even the most conservative international jurists agree that there must be at least some international involvement in the Special Tribunal. Unfortunately, however, its apparent determination to give itself the option of the death penalty essentially rules out front-line involvement from the United Nations, Britain or any other EU country. All have stated explicitly that they can play no part in a body which retains the ultimate punishment. With Arab states — except Kuwait — also reluctant to take part, the court may be insufficiently immunised against critics who will claim that it is dispensing Guantanamo justice.

Human Rights Watch, in a stinging report, described the court as 'fundamentally flawed' because suspects' guilt will not have to be proved 'beyond reasonable doubt', the normal Western standard, but only 'in accordance with the law'. Iraqi law, that is.

Yet will any of this controversy really make any difference to Saddam's fate? Clearly not as far as President Bush is concerned. 'We'll see what penalty he gets. But I think he ought to receive the ultimate penalty,' said Dubya, within days of the exdictator's capture. It was the kind of political, jury-influencing intervention that traditionally gets trials halted in namby-pamby jurisdictions like Britain — and the US. Yet, like so much that Mr Bush says, it may be nasty, but it is at least honest.

In whichever judicial robes we choose to dress it up, there really cannot be much doubt what will happen to Saddam Hussein. It is impossible, and arguably intolerable, that security worries, lack of testimony, failure to secure UN support or any other factor can save him from the inevitable verdict of guilty. The issue is not what happens, it's how it happens. It would clearly be preferable for it to happen in a way that allows Iraq, and the world, to feel good about the process. But if it cannot happen in that way, it will happen in another way. Saddam may be ahead on points at the moment, but there is no doubt who will have the last laugh.

Andrew Gilligan is the defence and diplomatic editor of The Spectator.