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Twice in his life Abdullah Mohammed Hussein, a 57-year-old Kurdish far­mer, found himself face to face with Saddam Hussein – and the circumstances of the two encounters could hardly have been more different.

The first came in 1988 when – following the genocidal “Anfal” campaign by the Iraqi army that is held to have killed 180,000 Kurds in the north of the country – he was given a short audience with the dictator to plead for the release of nine missing relatives. The Saddam response was curt, according to the farmer: “Shut up. Your family are gone.”

It was 18 years later that the Kurd relived that meeting, both in memory and in the flesh. On September 14, deep in the bowels of a former Ba’ath party headquarters building in Baghdad’s fortified Green Zone, he was the star witness for a day in the trial of his family’s alleged murderer.

Since October last year, when the trial of Mr Hussein started, many Iraqis have had similar opportunities to testify against the deposed president at the Iraqi High Tribunal – originally established by the US-led occupation authorities in December 2003 to try senior regime officials for war crimes, crimes against humanity and genocide, then reconstituted in August 2005 by Iraq’s new Shia-dominated parliament.

With that mixed parentage, the trial has taken place as a courtroom drama played out largely according to the improvisational abilities of the various presiding judges on one hand and those of Mr Hussein on the other.

Beamed to television screens across Iraq, the defendant has been given every opportunity to grandstand, dispute with judges and question the court’s legitimacy. This has been a spectacular success at generating publicity but appears to be an equally spectacular failure in its original concept: as an attempt to meld international norms of justice with Iraqi claims to sovereignty.

In the process, fissures between Sunni, Shia, and Kurd that run through Iraqi society have only deepened since the beginning of a trial that was intended to help heal them.

Given the importance of the trial to Iraq’s new rulers, and their willingness to exert political pressure on the court, it seemed inconceivable that the outcome could have been anything other than a sentence of death. Yet somehow, this knowledge has not detracted from the suspense, which lay not in the outcome but in the ad-hoc way in which the proceedings redefine a new era in Iraq. Many Iraqis still expect the wily dictator to cheat the hangman anyway, as he always has in the past.

In a courtroom already known for drama, however, the September meeting between the two Mr Husseins and the judge, Abdullah al-Amiri, crystallised the controversy surrounding the trial: is the court beholden to the Iraqi state or to higher principles of human justice? And if the former, what authority does it possess to judge the man who embodied that state for three decades? With the farmer on the witness stand, the bearded ex-leader tried to dispute the Kurd’s testimony, retorting: “I wonder why this man wanted to meet with me, if I am a dictator?”

Mr Amiri broke in, with a somewhat cryptic response. “You are not a dictator. You were not a dictator. However, the people or the individuals and officials surrounding you created a dictator [out of you]. It was not you in particular. It happens all over the world.”

It has never been fully clear what the judge meant: was he genuinely sympathetic with Mr Hussein, expounding a personal theory of how autocratic regimes work, or merely wanting to change the subject and get on with the trial?

Either way, his remarks unleashed a storm of criticism. How could anyone say that the man charged with murdering tens of thousands of his compatriots was not a “dictator”? Shia and Kurds – who suffered the most at the hands of Mr Hussein – demanded that Mr Amiri be ousted, and the Iraqi government obliged. Using a previously little-noticed clause in the 2004 statute establishing the court, the authorities ordered that he should step down.

For western legal observers, the cabinet decision to oust the presiding judge represented clear-cut interference of the executive branch in a judicial case. The New York-based Human Rights Watch said the removal of Mr Amiri reflected a grave failure of the tribunal’s requirement to protect judges from interference and a “complete lack of respect for judicial independence on the part of the Iraqi government”.

But for many Iraqis, the incident was an indictment of the trial for the opposite reason. It was bad enough that the tyrant was allowed to speak freely, but to have the judge then express sympathy with the defendant was too much to bear. “How could Saddam have been put on trial at all?” demanded one resident of Chamchamal, a town located in the heart of the Anfal campaign zone, who 20 years ago watched men, women and children being led in handcuffs to trucks to be driven up into the hills, never to be heard from again. “He should have been hanged immediately.”

The failings of the trial may lie in an attempt to reconcile two competing imperatives that probably could never have been reconciled: justice and vengeance.

Legal observers worldwide wanted the Saddam hearing to meet the standards of international war crimes trials – not only to prove that terrible crimes had occurred but to provide evidence that the defendants bore personal responsibility. The need for strict standards of proof was lost on many Iraqis, however. What was there to prove? Everyone knew that Mr Hussein had ordered the crimes for which he was charged.

Furthermore, from the first day of the trial, Mr Hussein had made it clear who his intended target audience was, as he strode into the courtroom and motioned to the press gallery by putting his thumb to his finger tips, the Arabic gesture meaning “be patient for just a little longer”. Then he proceeded to declare the court “invalid” and stated he was still president of Iraq – the first salvo in what would become a year-long parade of theatrics.

Putting the trial on television had been conceived as a way to bolster the transparency of the proceedings. But this has largely backfired. Few in Iraq and the Arab world in general have seen televised trials, and few Iraqis outside the legal profession would have seen a criminal court in progress. Many imagined the defendants humbled before the majesty of the judge.

But the court turned out rather differently. Until his shaken reaction to yesterday’s verdict, Mr Hussein and his fellow defendants appeared to be having the time of their lives. They have sniped at the legitimacy of the court. They have delivered old-style speeches, invoking the greatness of Iraq and issuing threats against traitors (in a recent session, Mr Hussein told the prosecutor he was “a collaborator for the Zionists, and we will crush the heads of all Zionists and their collaborators”).

The defendants took to saluting each other in military fashion and addressing one other by their old military ranks. The trial thus appeared not so much as final judgment on the Ba’ath regime but a reunion of old party comrades, once again the centre of attention.

Throughout, Mr Hussein and his legal team seemed to have no interest in methodically disputing the evidence against them, choosing instead to challenge the court’s legitimacy and play to public opinion. Comments by his lawyers suggest that Mr Hussein’s courtroom strategy may have been intended to inflame events, to force the Americans to recognise his ability to whip up the insurgents or calm them.

Some legal scholars have suggested that the causes of the courtroom confusion may lie in its statutes, influenced by US legal advisers who injected a heavy dose of Anglo-American procedures into the European-style system used by Iraq and most other Arab countries.

Judges, prosecutors, and defence attorneys may not be “familiar with the adversarial, accusatorial practice of the American system which has been foisted upon them by the American drafters of the statute and [other legal advisers and] have reverted to the practices they know best under the 1971 Iraqi code of criminal procedure,” says Cherif Bassiouni, professor of law at DePaul University in the US. “In other words, the drafters have so botched the statute it would be very difficult for anyone to follow a straight path that satisfies at once the two models which have been intertwined.”

Certainly, the prosecution presented a parade of witnesses who testified both to vicious repression against the Shia village of Dujail – the charge on which yesterday’s sentence was based – and the allegedly genocidal counter-­insurgency campaign in northern Iraq in the 1980s.

If the judges set out their reasons in a written document, clarity might be brought to an otherwise murky and chaotic process. But in the battle of perceptions this may be irrelevant. The victims of the former regime receive revenge but loyalists are unconvinced justice was done. The chances that this trial will be a model for the future or aid national reconciliation are slight.

Copyright The Financial Times Limited 2017. All rights reserved.
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