November 2006 
Year 13    No.120

War on terror

American Burlesque

The Saddam Hussein trial: an exercise in sophistry


To the historical debate on crime and punishment, the Saddam Hussein trial has added a farcical footnote bearing the attributes of a burlesque rather than the serious question of a dictator charged with many deaths during nearly 30 years of rule. Indeed, it is difficult to understand American moves in bringing Saddam on trial except in the fantasy world of the Iraq they have built for themselves after their invasion and occupation of the country.

If Slobodan Milosevic’s trial before the special international criminal court in The Hague was decried by Serbs – and not Serbs alone – as an example of victor’s justice, the Baghdad trial of Saddam, entirely choreographed by Americans, in a country that remains under their occupation, is no longer a trial, if it ever was. It is an exercise in sophistry. Presumably, the American motive was to demonstrate to Iraqis and Arabs that the evil are punished by the virtuous and the good.

But that was a seemingly long time ago when the world was divided between the axis of evil and a gallant and powerful rescuer. One hundred US troops were not dying in one month nor were 100 Iraqis every day. Long after Saddam was captured in an underground hideout, Iraq teeters on the precipice of a civil war, President George W. Bush’s popularity ratings have plunged, Vietnam has returned to haunt America and the US establishment is wrestling with how to extract its troops out of the Iraq morass.

And as the trial has spluttered and resumed, defence lawyers have been murdered, two judges removed and prosecution witnesses tutored to reveal a web of lies on all sides, including those on the defence side. Americans conducted much of the evidence gathered against Saddam, their attorneys tutored the judges, an American company provided the television link blocking segments of inconvenient proceedings and there was not much suspense in taking the nine month long trial in the first case to a climax. The death sentence handed out to Saddam and others conveniently came two days before important US Congressional elections. The second case in the Anfal trial against Kurds has yet to be completed.

The Bush administration has been living on illusions: their troops being greeted as liberators in Iraq, building Iraq as a modern democracy in the Arab world, "mission accomplished" long before the heartaches and travails began in earnest and the hope that Saddam’s capture and trial would bring an end to the then budding emergency. If the Americans believe that a Saddam verdict will bring a sense of closure to the distressingly painful chapters in Iraqis’ lives, they are mistaken.

A central American concern in the trial has been to guard against Saddam using it as a pulpit to gather support in the fashion of Milosevic at The Hague. Despite the US-choreographed cuts to the supposedly live coverage – the telecasts were broadcast 20 minutes late – Saddam did use the trial as his pulpit, describing himself as the President of Iraq, deriding the judges as puppets of the occupation regime and even offering a homily on reconciling Shias and Sunnis. But the American hand was no longer as hidden as it was believed to be and the Iraqi government of the day got into the act by Prime Minister Nuri Al Maliki declaring before the verdict that he wished to see Saddam executed. For his part, Saddam declared that he would rather die at the hands of a firing squad, as behoves a military man, than by hanging, the traditional Iraqi execution.

What happens to a trial that is so patently flawed, reduced to an apparition of prosecution and defence witnesses, of judges who remain in their posts at the pleasure of the government, of the American-crafted cage in which Saddam and his co-defendants sit (when they are not thrown out), of the world’s press watching the strange proceedings from a distance? The reaction of the Iraqi public is not hard to divine. Sunnis are by and large suffering another humiliation, after being deprived of primacy in governance. The Shias and Kurds are ostensibly celebrating the process of "justice" although there is no sense of closure for them.

Americans themselves have become listless over the trial proceedings. There is no sense of triumph, as briefly captured by President George W. Bush’s "mission accomplished" declaration on the deck of a US aircraft carrier. Wars of choice are a serious business; they do not lend themselves to a Hollywood setting – until afterwards. The Iraq war will remain President Bush’s legacy in ways he did not envisage. That will remain a modern American tragedy.

What lessons does the Saddam trial hold for Iraq, the United States and the wider world? The debate on crime and punishment remains inconclusive. America compromised itself and its values by making a political point through the judicial process and its own troops’ excesses at Abu Ghraib and Guantanamo further compromised US conduct in relation to Iraq. On the face of it, it is absurd to believe that a court guided by an occupying power to try the country’s leader dethroned by an invasion can carry conviction. The Bush administration thought it fit to trade symbols for substance and justice by bringing Saddam to trial as it did.

To compound the Bush administration’s problems, it went on piling up problems for itself in how it conducted itself as an occupying power. To sack the whole of Saddam’s army and gifting it to the insurgency has few parallels for its idiocy. But then President Bush and his neo-conservative advisers were making an ideological point. They were primed to act as a modern day version of the Roman empire, enlightened imperialists spreading democracy and light as long as it was understood that their country was the perennial numero uno.

The American plot began to go wrong because one nation, obscenely powerful as it is, cannot rule the modern world as the Romans did. The nation state was a European invention even as Europe today is seeking to subsume attributes of national sovereignty into a larger whole. Nor has the United States learnt any lesson from the Ottoman empire, which ruled its diverse subjects efficiently through enfranchising its subject races through the military route not only to help the central authority but also to acquire status. The nearest America got to it was by speeding foreigners’ access to green cards if they would fight for America in its new wars, particularly in Iraq.

(S. Nihal Singh is a well-known journalist and commentator and the author of several books on current affairs.)

(Courtesy The Asian Age.)



Opportunity missed: Amnesty International

Amnesty International

Press Release, November 5, 2006

Amnesty International deplores the decision of the Supreme Iraqi Criminal Tribunal (SICT) to impose the death sentence on Saddam Hussein and two of his seven co-accused after a trial which was deeply flawed and unfair. The former Iraqi dictator was sentenced today in connection with the killing of 148 people from al-Dujail village after an attempt to assassinate him there in 1982. The trial, which began in October 2005 almost two years after Saddam Hussein was captured by US forces, ended last July. The verdict was originally due to be announced on October 16 but was delayed because the court said it needed more time to review testimony.

The case is now expected to go for appeal before the SICT’s Cassation Panel following which, if the verdict were to be upheld, those sentenced to death are to be executed within 30 days.

"This trial should have been a major contribution towards establishing justice and the rule of law in Iraq, and in ensuring truth and accountability for the massive human rights violations perpetrated by Saddam Hussein’s rule," said Malcolm Smart, director of the Middle East and North Africa programme. "In practice, it has been a shabby affair, marred by serious flaws that call into question the capacity of the tribunal, as currently established, to administer justice fairly in conformity with international standards."

In particular, political interference undermined the independence and impartiality of the court, causing the first presiding judge to resign and blocking the appointment of another, and the court failed to take adequate measures to ensure the protection of witnesses and defence lawyers, three of whom were assassinated during the course of the trial. Saddam Hussein was also denied access to legal counsel for the first year after his arrest and complaints by his lawyers throughout the trial relating to the proceedings do not appear to have been adequately answered by the tribunal.

"Every accused has a right to a fair trial, whatever the magnitude of the charge against them. This plain fact was routinely ignored through the decades of Saddam Hussein’s tyranny. His overthrow opened the opportunity to restore this basic right and, at the same time, to ensure, fairly, accountability for the crimes of the past. It is an opportunity missed," said Malcolm Smart, "and made worse by the imposition of the death penalty."

Amnesty International will now follow closely the appeal stage, where the evidence as well as the application of the law can be reviewed, and the SICT has therefore an opportunity to redress the flaws of the previous proceedings. However, given the grave nature of these flaws and the fact that many of them continue to afflict the current trial before the SICT, Amnesty International urges the Iraqi government to seriously consider other options. These could include adding international judges to the tribunal or referring the case to an international tribunal – an option indicated by the UN Working Group on Arbitrary Detention last September.

Saddam Hussein is currently being tried by the SICT, together with six others, on separate charges arising from the so-called Anfal campaign, when thousands of people belonging to Iraq’s Kurdish minority were subject to mass killings, torture and other gross abuses in 1988.

Amnesty International

1 Easton St., London WC1X 0DW.



Doubtful legitimacy and credibility: UN

United Nations

Press Release, November 6, 2006

Leandro Despouy, special rapporteur on the independence of judges and lawyers, issued the following statement today:
A day after the Iraqi High Tribunal ended its first trial of Saddam Hussein and sentenced him to death by hanging, the special rapporteur on the independence of judges and lawyers, Leandro Despouy reiterates his strong objections regarding the conduct of the trial and expresses his concern about the consequences this judgement may have over the situation in Iraq and in the region.

The following are among the main objections of the special rapporteur:

Ř The restricted personal jurisdiction of the tribunal, which enables it only to try Iraqis.

Ř Its limited temporal jurisdiction. The competence of the tribunal does include neither the war crimes committed by foreign troops during the first Gulf war (1990) nor the war crimes committed after May 1, 2003, date of the beginning of the occupation.

Ř Its doubtful legitimacy and credibility. The tribunal has been established during an occupation considered by many as illegal, is composed of judges who have been selected during this occupation, including non-Iraqi citizens, and has been mainly financed by the United States.

Ř The fact that the statute of December 10, 2003 contains advanced provisions of international criminal law which are to be applied in combination with an outdated Iraqi legislation, which allows the death penalty.

Ř The negative impact of the violence and the insecurity prevailing in the course of the trial and in the country. Since its beginning, one of the judges, five candidate judges, three defence lawyers and an employee of the tribunal have been killed. Moreover, another employee of the tribunal has been seriously injured.

Ř Finally, and most importantly, the lack of observance of a legal framework that conforms to international human rights principles and standards, in particular the right to be tried by an independent and impartial tribunal which upholds the right to a defence.

The special rapporteur welcomes the determination of the Iraqi government to sanction the main authors of the atrocities committed during three decades in the country and its will to see the trial take place in Iraq. At the same time, he deems it essential that this will be expressed through a trial conducted by an independent tribunal, legitimately established, acting in absolute transparency and providing all guarantees for a fair trial, in accordance with international human rights standards. If those conditions are not fulfilled, the verdict of the Iraqi High Tribunal, far from contributing to the institutional credibility of Iraq and the rule of law, risks being seen as the expression of the verdict of the winners over the losers.

The special rapporteur urges the Iraqi authorities not to carry out the death sentences imposed, as their application would represent a serious legal setback for the country and would be in open contradiction to the growing international tendency to abolish the death penalty, as demonstrated by the increasing number of ratifications of the Second Optional Protocol to the International Covenant of Civil and Political Rights.

It is clear that the verdict and its possible application will contribute to deepen the armed violence and the political and religious polarisation in Iraq, bringing with it the almost certain risk that the crisis will spread to the entire region.

The trial of Saddam Hussein has a particular significance not only for the thousands of victims in Iraq but also for its symbolism in the fight against impunity throughout the world. In this context, the special rapporteur reiterates the proposal for the establishment of an independent, impartial and international tribunal with all the necessary guarantees to enable it to receive the support of the United Nations and which will take advantage of the rich experience acquired by other international tribunals. Since the present verdict is subject to appeal, it opens the possibility to consider the establishment of such an international tribunal, which can guarantee a fair trial, either by reopening the present trial or by dealing with the appellate stage. This should be done with urgency, to attenuate the negative impact this verdict has already started to produce in Iraq and the proliferation of violence in the region. Another reason for the establishment of such a tribunal is that the current trial is only a stage in a larger judicial process, since it only examines seven charges, which include genocide and crime against humanity, amongst the numerous ones attributed to Saddam Hussein and his close collaborators.


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