Late last month, I participated in a seminar on justice in the Southern Mediterranean that was held in Rabat by the Euro-Mediterranean Human Rights Network under the auspices of the European Union and the Swedish International development Corporation. In this seminar, delegates from eight Arab and eight European countries agreed that an independent and fair justice system is indispensable for the rule of law and democracy. The delegates also found unanimously that, in the Arab region, there is no independent justice system and no fair trials, and that the region is characterized by extra-ordinary laws and exceptional tribunals such as special security and military courts.

It is clear, then, that tyranny is characterized with judges who, lacking independence and integrity, become instruments of the regime like other public servants. It is equally clear that one of the most basic conditions of democracy is the rule of law that requires the existence of a justice system characterized with independence and integrity and no tolerance for extra-ordinary laws or exceptional tribunals. It is indisputable that the Arab world is mostly ruled by Tyrants.

The trial of Saddam Hussain is being anxiously awaited by Arab tyrants and masses, and certainly the world at large, as the best indicator of what will be the future for democracy in Iraq and the region. How the trial will unfold will deeply influence the future of tyranny and the fortunes of democracy in the Arab region. How the trial will unfold will determine whether the current and would-be tyrants will watch it with deep apprehension or with great amusement. It will either make them fear, or will set their minds at ease.

Let the tyrants fear!

What will make the tyrants fear, and possibly tremble, in this case is the ability of the Iraqi judges to convincingly demonstrate their independence and integrity, and to conduct a fair trial in accordance with the due process of law with strong safeguards for individual and human rights. Otherwise, the court, and the trial, will lack legitimacy and validity, and will be no different from countless unfair trials conducted throughout the Arab world, including old Iraq.

Such an unfortunate outcome must be avoided with great determination. Here is the way.

1. The court that will try Saddam should not be a special or extra-ordinary court, but the regular Iraqi court with proper jurisdiction and competence in accordance with the previously existing Iraqi law and the general rules of criminal procedure. Any thing else will mean an exceptional court characteristic of the failed Arab justice systems.

2. The judges who will sit on the court should come from the ranks of the regular Iraqi judiciary and shall be subject to challenge, and consequently recusal, based on the lack of independence and integrity such as in the event of conflict of interest or proven impartiality. The higher court that will rule on the challenges should be an example of independence and integrity. Lawyers for the accused should not fear making such challenges in the exercise of the rights of defense.

3. The trial should be open to the general public in silence and respect. Disruption from the audience should be prevented. Famous past political trials in Iraq, such as the ones presided upon by Col. Mahdawi in the late 1950s, were a farce and took place in circus atmosphere.

4. The court shall recognize and apply the most cardinal principles of the due process of law in penal justice, namely:

(A) The presumption that the accused is innocent until proven guilty.
(B) The principle of legality, beginning with the rule that no crime shall be recognized, and no penalty shall be imposed, that the law had not provided at the time of the offensive act.
(C) Representation by lawyers of the free choosing of the accused and the right of the accused and his lawyers to communicate freely.
(D) The defense and the prosecution shall have equal arms, especially in equal and prior access to evidence.
(E) The accused shall have the right to be duly heard and to controvert, by proof or otherwise, every accusation or material facts that bear on his guilt or innocence.

Finally, attendance of the trial by neutral observers, such as international human rights organizations, shall be encouraged and respected.

The success in turning the trial of Saddam Hussain into a model of legitimacy, fairness, due process and respect for the rule of law shall constitute a milestone in the long and difficult march to democracy in the Arab world and will signal the sure demise of tyranny. Anything less should not be acceptable. The failure of the trial to conform to this model will constitute, regardless of the verdict, an astounding exoneration of Saddam Hussain and his regime, and a triumph for Tyranny in the Arab region.