If the world -- and Iraqi citizens -- view the trial of deposed Iraqi leader Saddam Hussein as illegitimate, the trial is unlikely either to improve the immediate situation in Iraq or to establish an unimpeachable historical record of atrocities committed during his regime, says UC Davis international criminal law expert Diane Marie Amann.

"The purpose of a criminal justice system is to put a barrier between accused persons and victims' understandable impulse to wreak revenge," Amann says. "Once a government chooses to subject an accused person to criminal process, it has a duty to proceed fairly."

Amann, a law professor who focuses on human rights and constitutional law as well as international criminal law, harbors serious questions about the fairness of the ongoing trial of Hussein and his co-defendants, a doubt shared by the United Nations and others watching the trial.

The trial of Hussein on charges relating to a 1982 massacre already has been marred by the murders of tribunal personnel -- among them, two defense counsel -- and continued threats against judges, lawyers and witnesses.

Amann, who commended the tribunal for its decision to hear defendants' challenge to its jurisdiction, gives several reasons why the tribunal may not be seen as legitimate:

• The automatic exclusion of any jurist who was a member of Hussein's Baath party helps to fuel Sunni concerns that the tribunal may not represent all the peoples of Iraq.
• The inability to guarantee the security of participants -- not just defense attorneys, but also ordinary people called to appear as witnesses for either side -- threatens the fairness and reliability of the proceedings.
• Defense attorneys did not appear at first to receive adequate time and resources to prepare a robust defense.
• The likelihood that the defendants will be executed if convicted has prompted many international experts, from Europe and other regions that categorically oppose the death penalty, to decline to assist the tribunal.

"The trial of Saddam Hussein represents a rare opportunity to hold accountable someone who is accused of the world's worst crimes," Amann concludes. "But because of the manner in which the tribunal was established and implemented, there is reason to fear that the opportunity may have been squandered."