Opinion: A Fair Trial for Saddam?

With the transfer of power -- or what is designated as "power" -- to the Iraqi interim government on Monday the United States officially ceased to be an occupier in Iraq. Now Washington must fulfill obligations that arise from international conventions, particularly from the Geneva Conventions: The United States may no longer hold prisoners of war in Iraq. They must release them or -- if they are suspected criminals -- they must transfer them to the Iraqi authorities.

Without a doubt, at the top of the list of such people is former President Saddam Hussein, who since his arrest in December has been held in a U.S. prison in Iraq. Saddam was handed over to Iraq already on Wednesday -- and probably soon after a good dozen of his closest associates will be as well.

Initially, the event merely has a rather symbolic significance, for, as long as the government lacks appropriate prisons, the United States will keep Saddam in custody -- by proxy for the Iraqi government. The ex-dictator will only enter a state prison when adequate provisions have been made.

Indeed, when he will go on trial has not yet been determined. According to the predictions made so far, it will still take months. Similarly, the trial's outcome is still open to questions: The recently departed U.S. administrator for Iraq, Paul Bremer, had abolished the death penalty. But leading members of the interim government -- among them Iyad Allawi -- have already spoken out in favor of the death penalty.

Occurrences like that cast doubt both on the manner and the constitutionality of the trial. They also highlight the dilemma the authorities are faced with: Iraq is not a constitutional state. Not yet. Nor was it ever, and no one knows whether or when it will be. But one may not go as far as the Jordanian head of Saddam's defense, who simply denies the crimes the former dictator is accused of and speaks of an "illegal trial." The crimes have been documented, and it is certainly "legal" to put a man like Saddam on trial.

But the question is how? If the United States had taken Saddam to court, the trial would have gone down in history as an example of justice of the victors and would have further aggravated anti-American feelings in the Arab and Islamic worlds, even though Saddam Hussein musters little sympathy there. An international trial like the one against former Yugoslavian dictator Slobodan Milosevic in The Hague would have been an alternative, but for that both a tribunal and the international disposition are lacking.

What remains is the transfer to the Iraqis and a trial before an Iraqi court -- with all the aforementioned weaknesses, misgivings and dangers. It must be clear to the United States that handing over Saddam Hussein doesn’t release them from their responsibility -- responsibility that justice be done and neither an arbitrary verdict laid down nor short shrift made of the proceedings -- even if, in the course of a long and sound trial, unsavory information about the earlier close cooperation between Saddam and Washington is disclosed.