SPEAKING FREELY Victor's justice: The trial of Saddam
By Paul Wolf
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The Iraqi high tribunal has just announced the death sentence of Saddam
Hussein. This should surprise no one. In fact, no other outcome was ever
possible. From the moment he was captured in his underground hideout, Saddam's
fate was sealed.
Saddam and the others were convicted for crimes that happened almost 25 years
ago. One hundred forty-eight members of the pro-Iranian Da'wa Party were
executed for attempting to assassinate
Saddam during the Iran-Iraq war in the 1980s. The executions followed a
two-year investigation, involving the torture and imprisonment of entire
families, and judicial findings that 148 people were guilty of sedition for
supporting Iran in the war and plotting to kill their own president.
While none of us would condone the mass execution of 148 people, we know little
about what actually happened. Anonymous witnesses were brought forth, and in
some cases the witnesses did not even appear, but submitted affidavits instead.
These people testified to the terrible experiences they and their loved ones
had in prison.
But whether they received fair trials, or were summarily executed, no one
really knows. The transcripts of the 1982 proceedings, and the evidence used to
convict the defendants, were excluded from the trial. It's ironic that Saddam
will be executed, in essence, for the unfair way in which these people were
dealt with, yet his own trial was so unfair that the earlier proceedings and
evidence were inadmissible.
Many have commented on the unfairness of Saddam's trial. Some have remarked
that the trial was a political circus, searching for reasons to justify the
Iraq war and the ongoing occupation by US-led forces. Yet few see the larger
issue, which is that the court itself is illegal under international law,
setting a terrible precedent that overshadows the need to avenge crimes of the
Iran-Iraq War.
Let's recall what happened. First, there was a lot of hysteria about Iraq's
development of weapons of mass destruction and support of al-Qaeda. Of course,
none of it was true. By 2003, Iraq had been blockaded for 13 years and couldn't
threaten the United States or anyone else.
Nevertheless, the United Nations was maneuvered into putting more and more
pressure on Iraq, with weapons inspectors crawling all over the country,
frustrated and blamed for their failure to find anything. This culminated in
the passage of Security Council Resolution 1441, which threatened Iraq with
"serious consequences" if it did not fully cooperate with the inspections. The
equivocal Hans Blix could never give Iraq a clean bill of health, and his
reports were read to insinuate that Iraq did indeed have something to hide.
Yet Resolution 1441 contained no enforcement provision. It had been understood
that the Security Council would have to pass further resolutions on sanctions
if Iraq remained in non-compliance. Even John Negroponte, then the US
ambassador to the UN, said that Resolution 1441 contained no "hidden triggers"
and no "automaticity".
Washington's threats to attack Iraq unilaterally were not well received
internationally. Russia, China and France, three of the permanent members of
the Security Council, were opposed to a preemptive US attack. On March 5, 2003,
France, Germany and Russia issued a joint statement vowing to block any
resolution authorizing the use of force. Just two weeks later, the US began the
invasion.
Under Chapter VII of the UN Charter, only the Security Council can authorize
military attacks to enforce resolutions. Otherwise, the use of military force
is only permitted in self-defense. The Security Council did not authorize the
US war in Iraq. The International Court of Justice has held that preemptive
attacks violate customary international law as well as the UN Charter.
To make matters worse, at the end of the Gulf War in 1991, the United States
and Iraq had agreed to a ceasefire, the terms of which were set forth in UN
Resolution 687. That ceasefire was still in force when the US attacked Iraq. By
any measure, the US attack on Iraq was illegal.
Then the United States invaded and occupied Iraq, set up a new government and
put the old government on trial. Not for weapons of mass destruction. Not for
violating the nuclear Non-Proliferation Treaty. Not for violating any Security
Council resolution. In fact, the president of Iraq was held for two and a half
years before he was even charged with a crime.
To charge him, the occupying power had to set up a special court and create
special new laws. The process violated so many principles of international law
that UN Secretary General Kofi Annan asked jurists around the world not to
participate in it.
Unlike the ad hoc tribunals on Yugoslavia, Rwanda and Sierra Leone, the trial
of Saddam Hussein has been the justice of a military victor in war. If we look
back in history, the last example of that was at Nuremberg. That's how far the
clock has been rolled back.
The Americans argue, of course, that the US did not put Saddam Hussein on trial
- the Iraqi people did so themselves. They did so, however, under the thumb of
the US military, which controls every aspect of the trial, including what is
broadcast on television.
Michael Sharf, a law professor at Case Western University involved in training
the Iraqi judges, last month referred to a "300-or-so-page judgment" of the
court that is supposed to sort out all the legal problems when it's released.
There's little doubt that the judgment is still being translated into Arabic.
In fact, the legitimacy of the government of Iraq is itself questionable,
because the elections were rigged by the US. The United States determined which
candidates were permitted on the ballot, and funded the campaigns of its
favorites. Saddam Hussein, of course, was disqualified from running. Nuri
al-Maliki, an old member of the Da'wa Party of Iran, won the election and is
now prime minister of Iraq. Victor's justice, all around.
Paul Wolf is a lawyer in Washington, DC, who has worked on the defense of
Saddam Hussein. Documents from the case can be found at
www.international-lawyers.org and at www.law.case.edu/saddamtrial.
(Copyright 2006 Paul Wolf.)
Speaking Freely is an Asia Times Online feature that allows guest writers to have
their say.
Please click hereif you are interested in contributing.
