The most unwanted man in the world

But capturing Saddam Hussein could be just the start of their problems, as Nick Morrison reports.

IT will not go down as one of the most profound of statements, and hardly matched the significance of the news it imparted, but with "Ladies and Gentlemen - we got him", Paul Bremer, President Bush's representative in Iraq, revealed the sense of relief among the coalition forces at the capture of Saddam.

After eight months of searching for the Iraqi dictator, and as the number of US troops coming home in body bags continued to rise, support for the American occupation, both at home and abroad, was on the slide. Bush was in the extraordinary position of being a victorious war leader with falling poll ratings. Memories of his father's defeat after the first Gulf War may have been coming through, as he saw a seemingly unassailable lead evaporate, leaving him distinctly vulnerable ahead of next year's election.

A major breakthrough was becoming a matter of urgency. Winning the war against terrorism was never a possibility; finding weapons of mass destruction never of interest. Unlike Tony Blair, the US never staked its credibility on finding nuclear, chemical or biological weapons. For Bush, capturing Saddam was the only thing which could both encourage peace in Iraq, and subdue the doubters at home.

But in some ways the President's problems are only just beginning. Now, he has to wrestle with the thorny issue of where Saddam should face trial. Should it be in Iraq, even though it does not yet have a government? Or should it be an international tribunal, similar to the one trying former Serb leader Slobodan Milosevic at The Hague? And, although it may be an issue more for his allies than for Bush himself, there is also the question of whether the former Iraqi president should face the death penalty.

Early indications are that a trial in Iraq is the favoured option. Last week, the Iraqi Governing Council announced that a special tribunal would be set up to try former members of Saddam's Ba'athist regime. But this is not as straightforward as all that, according to Professor Colin Warbrick of Durham University, an expert in international law.

'There has got to be some sort of Iraqi legal system under which he can be tried, and at the moment there isn't, because there is no government in Iraq. Until there is an Iraqi legal system, this isn't a feasible alternative," he says.

An interim government is due to take over in Iraq at the end of June, but until then a domestic trial is impossible. One option would be for the US-led coalition to try Saddam, but it is unclear that he could be held to have committed any offences against the coalition. His crimes, enormous as they were, were largely committed against the Iraqi people.

A third option would be an international tribunal, but this is fraught with dangers for the Americans, not least of which is that only the United Nations Security Council has the authority to set up such a tribunal, and to do this would require none of the five Permanent Members to exercise its veto. Given Russian and Chinese opposition to military action, this seems unlikely.

But perhaps the most likely wielder of the veto would be the US itself. America is reluctant to embrace the idea of international justice, and has opposed the creation of the International Criminal Court, fearing it could be used to try US servicemen for actions carried out during overseas conflicts. But an international court is still an option, according to Prof Warbrick.

"The two main advantages of an international court are that no questions of immunity arise, and the trial would have to take place according to international standards," he says.

But perhaps a key consideration for President Bush is that an international court is unlikely to sanction the death penalty, whereas no such considerations would apply to a trial in Iraq. While his main coalition partner, the British Government, opposes the death penalty, few protests will be made if it is imposed by an Iraqi court. According to Foreign Secretary Jack Straw, sentencing is a matter for sovereign states.

There is also the option that the Americans would try Saddam themselves, perhaps in Iraq, in the same way that the alleged Lockerbie bombers were tried in a Scottish court sitting in the Netherlands. But this exposes them to the charge of undermining any new Iraqi government, as well as raising the question of whether whatever offences Saddam committed against the Americans compare with what he did to his own people.

And whichever option is taken, the trial of Milosevic has shown that bringing former dictators to justice can take a long time.

"If we really were going to go through the Iran-Iraq war, the attack on the Kurds, as well as on opposition to his own party, we would have a catalogue of offences which would be quite enormous," says Prof Warbrick. "If it is going to take four years to deal with Milosevic, just think how long this could take."

For Bush, executing Saddam appears to be the favoured option, with the risk of creating a martyr outweighed by the President's own support for the death penalty and the danger of having a living focus of opposition to the US in Iraq. A trial in Iraq would help ensure this will not become a source of tension with Blair.

But there is already some disquiet at the way Saddam has been treated since his arrest, even ahead of any debate over the death penalty. Peter Smith, chairman of Teesside Against the War, says the images of the dishevelled Iraqi dictator may undermine prosecution of the case against him.

'By exposing him on television, they are opening themselves up for possible grounds for appeal," he says. "We're seeing this guy accused of murder getting his DNA swabbed, and you should not do that on television, it is outrageous, although there isn't going to be much sympathy for him."

Although the US seems keen on a trial in Iraq, this is in stark contrast to its treatment of the suspected terrorists held at Guantanamo Bay in Cuba, or to Britain's continued detention without trial of 13 alleged al Qaida members at high security jails in London.

"Here we have a man who has tens, if not hundreds, of thousands of deaths on his record, but there are other British people who are languishing in jail without access to lawyers," says Mr Smith.

"They're saying an Iraqi court can try him, but there isn't any legitimate Iraqi government in place, or an Iraqi judiciary of any quality. Anyone with any backbone has either left the country or been persecuted. An Iraqi tribunal sounds good, but who is going to be on it?"

Apart from opposition to the death penalty on moral grounds, there are also practical reasons for questioning whether it is the right course of action. Executing Saddam could turn him into something of a martyr for extremists, including many who previously saw him as a traitor to Islam.

But there is another danger, and one that has certainly already occurred to President Bush and his advisors. For the first 20 years of his reign, the Iraqi dictator was seen as a friend to the West, a secular bulwark against the creeping menace of Islamic fundamentalism. When he comes to trial, his defence may refer to the support he received from his Western backers, even while he was gassing 12,000 Kurds.

"If you are going to have Saddam sitting in a court talking about all the deals in the first years of his rule, it would be very embarrassing," says Mr Smith. "He was their man originally. I imagine there is some sweating in high places as to how to handle this problem."

When Saddam crawled out of his spider hole and handed his unused gun over to his American captors, there was much satisfaction at the fact he had not put up a struggle. In the months to come, there may be some regret that he did not follow the example of his sons Qusay and Uday and die fighting.