COMMENTARY The missing charge at Saddam's trial
By Kaveh L Afrasiabi
Saddam Hussein's trial has finally begun, yet his most flagrant crime of
committing mass atrocities against the Iranian people has not been included in
the criminal complaint, for a rather obvious reason.
This, in turn, has not only made the trial a sham, at least through the prism
of international law and the rights of his Iranian (civilian and military)
victims, it has also made the case against him legally complicated.
For a start, Saddam is presently being prosecuted for his role in the massacre
of about 200 Shi'ites in 1982 in the mainly Shi'ite
town of Dujail following a failed 1982 assassination attempt on him in the
town.
But the trouble with this case is that short of questioning Saddam's decision
to go to war with Iran in 1980, his war-time decision to use the state of
emergency to clamp down on dissidents is not easily prosecutable.
In modern history, governments, including the US government during both the
Civil War and World War I, have suppressed dissent and trampled on civil rights
in the name of national security. So, without the benefit of condemning
Saddam's brutal invasion of Iran under pretextual reasons, ie, a maritime
border dispute, Saddam's attorneys can have a field day with respect to his
persecution of pro-Iran "seditious" Shi'ites in the middle of that war.
Lest we forget, President George W Bush and various top US officials, including
former secretary of state Colin Powell and the current Secretary of State
Condoleezza Rice, have repeatedly gone on record blaming Saddam for "invading
his neighbors".
Yet, somehow, this crucial accusation has been treated with legal amnesia,
principally as a result of the twin factors tantamount to opening a Pandora's
box: (a) Saddam's forced annexation of Kuwait in 1990 was connected to the post
World War I "divide and conquer" neo-colonialism of Western governments,
thereby denying Iraq a fair share of the Persian Gulf coastline, and (b) the
Iran-Iraq war raises the taboo of US and European governments' complicity with
the Ba'athist regime.
In this regard, recall the much-publicized photo of Saddam's famous handshake
with Secretary of Defense Donald Rumsfeld in 1983 - back then, Rumsfeld was a
private citizen acting as president Ronald Reagan's special envoy on Iraq.
Regardless, the invasion of Iran, when some half a million Iraqi soldiers
poured into the country across a 500-mile front to "liberate Khuzestan", is
still too recent to be left to future history's verdict. Already, the United
Nations is on record condemning Saddam for the invasion: a UN secretary general
report dated December 9, 1991 explicitly mentions "Iraq's aggression against
Iran" in starting the war and breaching international security and peace. The
UN's explicit designation of Saddam as the aggressor in the Iran-Iraq war
should be taken seriously. [1]
Today, there are still some 60,000 victims of Iraq's chemical warfare, many of
them afflicted with burns and serious respiratory illnesses, treated at special
hospitals and special wings of ordinary hospitals set up exclusively for them.
Surely, these living examples of Saddam's use of weapons of mass destruction,
not to mention the millions of internal refugees and the families of the dead,
have a right, and logically speaking, a legitimate grievance and expectation of
compensation that should be addressed by the people running the Saddam
tribunal.
The Iranian government has reportedly submitted a comprehensive report to this
tribunal about Saddam's invasion and the astronomical financial and human toll
that it inflicted, and yet as a result of the current hostility between Iran
and the US government, this has been cast aside by the judges and the
prosecutors.
There is, however, another court, the court of public opinion, that the
traumatized Iranian people can resort to, irrespective of the lingering
thoughts, particularly in certain Arab corners, that Iran shared the blame for
the invasion and/or the war's continuation once Iraq had been expelled from
Iranian territory by 1983.
Concerning the latter, Nicos Poulantzas has authored an important book on the
right of hot pursuit in international law, which leaves no doubt that Iran had
the legal right to engage in hot pursuit of the invading enemy inside their
territory, just as Russia did to Germany in World War II.
Of course, the fact that Iran's incursions into Iraq during 1983-88 were
interlaced with Islamist revolutionary slogans somewhat muddied the picture and
clearly contributed to the world misperception of an Iranian "expansionism".
But, strictly through the prism of international law, Iran's action was at
bottom consistent with the UN purpose. [2]
Another complicating point about the trial of Saddam is the illegal, US-led
invasion of Iraq in 2003, casting the legitimacy of the whole legal order in
the present, still-occupied Iraq, under scrutiny, at least from the point of
view of international law.
Said otherwise, the trial, and the whole court, has a legitimacy deficit that
can only benefit the Iraqi insurgents and pro-Saddam diehards. Justice cannot
be properly served in a legally questionable forum and, no doubt, this has the
potential of turning around and haunting the occupying forces down the road.
For the moment, however, even the Iranian victims of Saddam's aggression may
take a timely respite from the feeling that all is lost, for after all the man
who was solely responsible for their generational traumatization is behind the
bars and being tried for crimes against humanity.
Notes
[1] See the opinion of the International Court of Justice (ICJ), in the Namibia
Advisory Opinion (1971), ICJ Reports 15, 53, that "the language of a UN
resolution should be carefully analyzed ... having regard to the terms of the
resolution to be interpreted, the decision leading to it, the charter provision
invoked and, in general, all circumstances that might assist in determining the
legal consequences".
[2] Article 51 states: "Nothing in the present charter shall impair the
inherent right of individual or collective self-defense if an armed attack
occurs." According to the ICJ in the case of Nicaragua vs United States (1986),
ICJ Reports 14, 1, 19, "In the case of individual self-defense, the exercise of
this right is subject to the state concerned having been the victim of an armed
attack."
Kaveh L Afrasiabi, PhD, is the author of After Khomeini: New
Directions in Iran's Foreign Policy (Westview Press) and co-authored
"Negotiating Iran's Nuclear Populism", The Brown Journal of World Affairs,
Volume X11, issue 2, Summer 2005, with Mustafa Kibaroglu.
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