January 23, 2004 Inquiry & Analysis Series No. 159

The Trial of Saddam Hussein

January 23, 2004 | By Dr. Nimrod Raphaeli*
Iraq | Inquiry & Analysis Series No. 159

The pending trial of Iraq's former president Saddam Hussein has aroused much interest and controversy among Iraqis and the Arab community at large. This is to be expected, given the emotions that Saddam evokes among both his supporters and his detractors. His recent capture by the coalition forces has only intensified the debate about his trial and raised many questions about the manner in which the trial should be conducted. The United States, which has recently declared Saddam a prisoner of war, has made no public statement on where and how he should be tried. Regardless of the many safeguards that will be taken to ensure that it be fair, the trial is bound to generate vast media coverage. The event was aptly characterized by a Kuwaiti journalist Khalid Al-Mutairi as the "the mother of all crimes in the mother of all courts." [1]

There are a number of legal and practical issues that will have to be resolved before the actual trial can take place. Decisions must be made about the type of court before which Saddam should be tried, as well as its venue; the manner in which the trial should be conducted – in public or on camera ; and the best way to ensure Saddam's safety during the trial.

There is an enormous body of evidence that must be collected. The Kuwaitis alone, victims of Saddam's aggression, have prepared about 200 indictments. In the words of one Iraqi legal scholar, any one of the major crimes of which Saddam is accused is sufficient to send him to the gallows or, at minimum, to prison for life. These crimes include using chemical weapons against Kurdish civilians, cutting off the ears of army deserters, and committing genocide against the Shi'a.

Court Options

The Governing Council has established a special criminal court comprised of five Iraqi jurists to try Saddam and those members of his government accused of committing capital offenses and major crimes. Wa'il Abd Al-Latif, a member of the Governing Council and a candidate to preside over the court, said in an interview with the London daily Al-Sharq Al-Awsat, that Saddam will be given an open and fair trial. As to the imposition of the death penalty, Abd Al-Latif was careful not to prejudge the case. As a matter of record, the civil administrator for Iraq, Ambassador L. Paul Bremer, has suspended the death penalty in Iraq. However, Al-Latif said Iraq is a Muslim country where the death penalty is permissible under Shari'a (Islamic law). [2] He notes that while the death penalty was suspended by Bremer, it was not abolished. [3]

Other options for trying Saddam have been suggested, but all of them appear unacceptable to the Iraqis. One option is a trial at the International Criminal Court in The Hague. However, this court does not consider cases of war crimes committed before its establishment in July 2002. Moreover, it can deal only with cases brought before it by citizens of countries which are signatories to the Rome Agreement, which created the court. Since neither the United States nor Iraq has ratified the agreement, the option to go before the court in The Hague is not valid.

A second option is the establishment of a special court of international jurists similar to the one assembled by the United Nations to try those who committed war crimes in Yugoslavia and Rwanda. The main problem with these courts is that they are expensive, distant from the scene of the alleged crimes, and their proceedings are slow and often understood only by a few. Also, these courts cannot impose the death penalty.

A third option is the establishment of a special court comprised of international and Iraqi jurists, also supported by the United Nations. Such courts were established to try officials accused of war crimes in Cambodia and Sierra Leone. They could provide a useful precedent for the trials of Iraqi officials, including Saddam, accused of war crimes. [4]

For the majority of the Iraqis, as evidenced by editorials in most Iraqi dailies, the trial of Saddam must be conduced in Iraq and before Iraqi judges. A poll conducted by the Iraqi Center for Strategic Studies shows that sixty percent of Iraqis want Saddam to be tried by Iraqi judges. [5]

The Defenders of Saddam

While questions about the method, timing, and venue for trying Saddam are still being debated, many lawyers, particularly from outside Iraq and for reasons to do more with nationalism than with the search for justice, have volunteered their services to defend Saddam.

The Arab Bar Association organized a symposium of Arab lawyers from Egypt, Jordan, Syria, and Morocco in an attempt to reach a consensus on the method of trying Saddam. The views were divided between those who considered Saddam "a nationalist hero and a prisoner in the hands of colonialism" and those who view him as a war criminal who committed crimes against humanity which deserve the death penalty. [6]

Leading the group of Saddam defenders is the president of the Jordanian Bar Association, Hussein Al-Majali who claims that 600 Jordanian lawyers have so far registered to defend Saddam. He is seeking to put together the largest panel of defense lawyers ever assembled to defend one individual. But Al-Majali is not satisfied merely with defending Saddam; he believes that his lawyers should consider prosecuting President George W. Bush and Prime Minister Tony Blair as war criminals. [7]

Commentaries on the Enthusiasm to Defend Saddam

Writing a column in Al-Sharq Al-Awsat, Loui Abd Al-Ilah invites the Jordanian lawyers to watch the film that shows Saddam, immediately upon his ascendancy to the presidency of Iraq, meeting with the leadership of the Ba'ath Party and calling individuals by name to be taken out for execution. He invites them to come and see the mass graves or talk to the families of the victims. The position of these lawyers, writes Abd Al-Ilah, reflects "total disregard of the pains and disasters of a people who need someone to listen to their voice after 25 years of absolute prison of silence." The columnist sadly concludes that the Iraqi people are in a position similar to that of the coachman in Chekhov's book who has lost his son and, unable to find anyone willing to listen to his story, ends up telling his personal tragedy to his horse. [8]

A columnist in the London daily Al-Hayat, Abdallah Iskandar, considers the enthusiasm of Arab lawyers to defend Saddam as rooted in Arab nationalism. For these lawyers, Saddam is not the head of a regime that committed crimes, but the principal enemy of the United States and Israel. It is this enmity which justifies treating him as "innocent." Thus, if Saddam were to be asked during his trial about the use of chemical weapons against the Kurds in Halabja, the defense lawyers would argue that Saddam was a combatant against Zionism so much so that he threatened to destroy Israel, and that absolves him from the crime of burning his own people. And if he were asked about the mass graves, his defense lawyers would say that Saddam stood as a hero in the face of vicious American attacks on the Arabs and Muslims, and such graves do not diminish his heroic stands. [9]

Also writing in Al-Hayat, Nabil Yassin suggests that Saddam be tried for treason toward the Arab people for violating his promises that he would not surrender, that he would fight alone if necessary, and that he would fire the last bullet on himself.

Against those who would volunteer en masse to defend Saddam, there are those who have threatened to take action against any lawyer who would do so. Loyalists of Shi'a cleric Muqtada Al-Sadr warned that those who defend Saddam will be the target of arrests. "Any lawyer who tries to defend him," preached Ra'd Al-Sa'di in his Friday sermon, "would ruin his career, and expose himself to God's punishment." [10] The Kurdish Bar Association challenged the Jordanian lawyers, asking their whereabouts when Saddam was spilling the blood of his people. [11]

Saddam - A Prisoner of War

In what seems like a sudden move uncoordinated with members of the Iraqi governing council, the U.S. Defense Department declared Saddam Hussein a prisoner of war (POW) subject to the provisions of the Fourth Geneva Convention governing prisoners of war. The International Red Cross Committee welcomed the decision as "acceptable from a legal standpoint." As a prisoner of war, Saddam will be protected by Article 18 of the Geneva Convention from "physical or mental torture" should he refuse to answer questions. [12] He will also be entitled to regular visits by the Red Cross; ironically, the organization's offices in Baghdad were blown up by Saddam's supporters.

Members of the governing council expressed their surprise and dismay at the decision because they believe that Saddam is a war criminal who should be tried in Iraq for crimes committed against the Iraqi people. [13]

Most Iraqi papers have reacted angrily to the designation of Saddam as a prisoner of war because of the concern, as one daily has put it, that he will thus escape the gallows. As is common in events of this kind, conspiracy theories abound. It is said that Saddam was not captured; rather, as part of a secret deal between the coalition forces and emissaries from Saddam, he surrendered to the Americans to avoid facing the wrath of the Iraqi people. [14]

The daily Al-Mu'tamar of the Iraqi Congress Party, whose leader is Ahmad Chalabi, refers to "a secret deal" between the United States and Britain according to which Saddam will be tried secretly and sentenced to a few years in prison to prevent him from revealing in public details regarding the role of the United States in the war between Iraq and Iran in the 1980s. [15] The Iraqi daily Al-Watan says that classifying Saddam as a prisoner of war confirms the existence of a deal. Then the paper goes further, calling on the nationalist movements in Iraq to challenge this classification and to prevent its being implemented. [16] Another Iraqi daily, which is closely associated with the Coalition Provisional Authority (CPA), expressed the dismay of the members of the Governing Council at the prisoner of war classification. The President of the Iraqi Bar Association, Malek Duhan Al-Hassan, is quoted as saying that Saddam can be treated neither as a prisoner of war nor a war criminal because the crimes he committed against the Iraqi people were not crimes that he committed during the war with the Americans; therefore he should be tried in an Iraqi court. [17]

* Dr. Nimrod Raphaeli is Senior Analyst of MEMRI's Middle East Economic Studies Program.

[1] Al-Siyassah (Kuwait), December 20, 2003.

[2] Al-Zaman (Iraq), December 21, 2003.

[3] Al-Sharq Al-Awsat (London), January 4, 2004.

[4] Al-Sharq Al-Awsat (London), January 11, 2004.

[5] Al-Zaman (Iraq), December 27, 2003.

[6] Al-Sharq Al-Awsat (London), January 3, 2004.

[7] Al-Sharq (Qatar), December 30, 2003.

[8] Al-Sharq Al-Awsat (London), January 9, 2004.

[9] Al-Hayat (London), December 30, 2003.

[10] Al-Mashriq (Baghdad), December 20, 2003.

[11] Al-Sharq Al-Awsat (London), December 31, 2003.

[12] Al-Sharq Al-Awsat (London), January 11, 2004.

[13] Al-Adala (Baghdad), January 12, 2004.

[14] Al-Mashriq (Baghdad), January 11, 2004.

[15] Al-Mu'tamar (Baghdad), January 12, 2004.

[16] Al-Watan (Baghdad), January 13, 2004.

[17] Al-Sabah (Baghdad), January 11, 2004.

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