Saddam Hussein accuses the US of staging a show tria

The trial of Saddam will be remembered either as the greatest trial in recent history (to paraphrase Norman Birkett's description of Nuremberg) or as a show trial that discredited the new Iraqi authorities, and the US invasion and occupation, as well as jeopardising the prospects for peace and the rule of law in Iraq.

I do not respond to this so-called court... what is built on illegitimacy is illegitimate Saddam Hussein 20 October, 2005

It is possible for war crimes trials to achieve great things. The Nuremberg trials 60 years ago laid the foundation for a new German society, placed the persecution of the Jews and other minorities on the historical record, and punished the perpetrators of some of humanity's worst crimes.

And, for all their faults, the trials by the United Nations of Balkan and Rwandan war criminals in The Hague and Arusha today have provided at least some satisfaction for victims and developed the laws of humanity in profound ways.

How will Saddam's trial match up to these monumental trials? There are several potential problems.

Domestic justice

First, unlike the trials mentioned above, the trial of the former Iraqi dictator (and his associates) is not an international war crimes trial.

At Nuremberg, in Chief Prosecutor Robert Jackson's words, "four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their enemy to the judgement of the law".

The Nuremberg trials set a judicial precedent

Nuremberg was very much an international effort. In the Balkans, the Security Council came together to establish an international court with international judges applying international law.

In Saddam's case, the trial is being held under Iraqi law before Iraqi judges. There are potential costs to doing it this way.

The impartiality of the judges (many of them victims of the old regime) will remain in doubt, the level of expertise available is somewhat diminished, and the legitimating force of international law will be absent.

This is not to say that local courts cannot do a decent job, though. In 1961, Adolf Eichmann was tried in Jerusalem before Israeli judges who are widely thought to have acted with dignity and objectivity.

Violence infectious

However, the circumstances in Iraq in 2005 are very different to that of Jerusalem in 1961, and here we come to the second major problem.

Is it possible to achieve justice in the context of an ongoing civil war and foreign occupation? War crimes trials usually occur at the end of a period of trauma when whole societies are ready to face a period of reckoning in the absence of violence and extra-judicial retribution.

Iraq is not in this position.

It is a country suffering great strife, and this has begun to infect the proceedings themselves. The killing of two defence lawyers and the pervading sense of chaos inside the courtroom augurs badly for the success of the trial.

Of course, Saddam himself is contributing to this chaos.

He is what makes this trial special. But he will argue that he, a former president of Iraq, shouldn't even be on trial.

There is nothing new, though, in prosecuting a former head of state. Each of the proceedings I have talked about already included the prosecution of a former head of state (Kambanda in Rwanda, Milosevic in the Balkans, and Doentiz at Nurmberg).

And, indeed, there were unrealised plans to prosecute Napoleon and the German emperor Kaiser Wilhelm II, too, in previous times. I doubt therefore that Saddam's claims of immunity will carry much weight in the technical part of the proceedings.

Slobodan Milosevic's trial began back in July 2001

Saddam may well want it to, of course.

This has been Slobodan Milosevic's tactic - his defence submissions are far too long - and if Saddam plans to convert the proceedings into a show trial he will want to extend the run as long as possible.

Saddam has already alluded to the dramatic potential of the trial, saying in his initial appearance in July 2005: "I do not want to make you feel uneasy, but you know this is all theatre by Bush."

The former Iraqi president seems well-equipped to play a starring role in this theatre, and the court will have work hard to avoid this.

Show trial?

But Saddam's comments go the heart of another objection to the legitimacy of the trial. What if it is a show trial - but one conducted not by Saddam, but by Bush?

Certainly, the Americans have played a large role in setting up the trial and in ensuring security.

The US Regime Crimes Liaison Office has influenced the shape of the proceedings, and the Statute was drafted in close co-operation with the US-led Coalition Provisional Authority, now defunct.

Regardless of specific American influences, though, the whole trial is tainted in some eyes by the illegality of the initial invasion. And Saddam may well play this card at some point in the trial, along with his other powerful card: the history of collaboration between the West and his regime throughout the period under investigation.

Indeed, it is this fear that may well explain why the initial charges are so narrow.

The specific charges thus far brought against Saddam relate to only a single incident in the town of Dujail in 1981, where Saddam's security men are alleged to have carried out a series of murders after the Iraqi president had been the object of an assassination attempt in the town.

In other words, the indictment has yet to encompass the gassing of the Kurds at Halabja (as well as other atrocities associated with the Anfal Campaign), the murder of leading Shia clerics, the torture by Saddam's security networks of inmates at Abu Ghraib or the violations of human rights committed by Iraqi troops in Kuwait during their brief occupation in 1990-1991.

By narrowing the charges, perhaps the prosecution hopes to avoid the politicisation of the trial. Saddam will be trying to achieve the opposite.

As Austen Chamberlain said of the plan to prosecute the Kaiser in 1919: "His defence might be our trial."