Victor's Justice: The Trial Of Saddam
By Paul Wolf
08 November, 2006
Asia Times OnlineThe 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.
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