Saddam Hussein was hanged early this morning in Baghdad. (He was hanged, not hung—big difference there.)
President Bush said he was “executed after receiving a fair trial.”
Fair trial, my ass.
Hussein was found guilty of crimes against 148 Iraqis from al-Dujail who were accused of trying to assassinate him in 1982. The people were convicted, sentenced to execution, and then executed. Hussein admitted that he ordering the trial of the 148 individuals, but argued that he was entitled to do so under the laws of Iraq. Apparently, Hussein’s crime was to use his powers as dictator to deny justice to these individuals. The 149 people were convicted by a court that likely failed judicial independence—in short, a kangaroo court.
Don’t get me wrong. I’m not defending Saddam for any of his crimes. Hussein had a well-deserved reputation as a murderous and brutal dictator. It seems likely that he committed numerous crimes that warrant execution.
My problem with Hussein’s conviction and execution is that he was tried in a kangaroo court. The judicial process that Hussein was tried and executed under was highly flawed—essentially, little better than the kangaroo court Hussein used to execute other people.
Let me take a moment here for a preemptive strike against our treasured Wingnut readers. My arguments here involve complex issues of international law and the Iraq legal system. If you are not willing to read this essay carefully, just shut the fuck up and go smoke your little green footballs or whatever it is you do to maintain a postmodern haze over reality. If you read carefully, you will learn that this essay isn’t about Hussein. Rather, it is about flaws in the process used to convict him—a process ill conceived by the arrogance and stupidity of the Bush administration. They fucked up another opportunity to offer Iraq some semblance of legitimacy.
All Americans have common ground in wishing for a peaceful, legitimate Iraq. It would solve our collective needs to get the hell out of Iraq and stop hemorrhaging money and American lives in support of the Bush administration’s past mistakes. Until late 2006, the Neocons wanted to pretend that Iraq was stabilizing, that the government was achieving legitimacy within and outside of Iraq, and that the U.S. had made the right decisions for post invasion Iraq. No more.
Last July when Bush held a joint press conference with Putin, he said (video):
I talked about my desire to promote institutional change in parts of the world, like Iraq where there’s a free press and free religion, and I told him that a lot of people in our country would hope that Russia would do the same.
To which an incredulous Putin sniped back:
We certainly would not want to have the same kind of democracy that they have in Iraq…quite honestly.
Free press and free religion is a joke for a nation under the grip of violence and chaos. (That Bush would even suggest something so idiotic to Putin is beyond belief!)
The Supreme Iraqi Criminal Tribunal (SICT or Tribunal), likewise, has caused harm to any semblance of legitimacy that the Iraqi government may have had. There are many reasons for this. Some reasons result from the execution of the Tribunal itself, but ultimately the problems boil down to (1) uninformed decisions made under the rule of the Coalition Provisional Authority (i.e. while the U.S. occupied Iraq), (2) prior “issues” the Bush administration had with the International Criminal Court (ICC), and (3) rotten decisions made under the fog of wingnuttery.
The realization of the Tribunal was a debacle from the get-go. We all cringed in embarrassment as Hussein managed to make a mockery of the court’s early proceedings. The whole world squirmed as events unfolded. We squirmed as two defense lawyers were killed—not just because the murder of a defense lawyer is unconscionable (although “spraying” one in the face with bird shot can be pretty darned entertaining), but because replacement of a defense lawyer threatens the integrity of the defense. Didn’t we all want to take the high-road by convicting Hussein through an unimpeachable process? We squirmed when one judge was killed. Finally, we flinched in embarrassment as the Iraqi government removed the chief judge in a second Tribunal for making minor statements that appeared sympathetic to Hussein. What integrity remains knowing that the government removed a judge for some minor statements? Can we really believe that judges in the first trial were completely free to weigh the evidence for and against Hussein with judicial disinterest?
In fact, the SICT was established outside the normal Iraqi judicial system. It was enacted on 10 Dec 2003 as the Iraqi Special Tribunal (IST) under Order No. 48 of the Coalition Provisional Authority (CPA). The Iraqi government later abolished the IST and reestablished it, nearly wholesale, as the SICT under Law No. 10 on 9 Oct 2005.
The IST is at the root of the court’s kangarooness. The laws under which Hussein was tried were, largely, a U.S. concoction that fails standards of international law, Iraqi law, and even U.S. law.
You may recall an awkward period following the capture of Hussein when the Coalition had no idea what to do with their prized prisoner. Would there be an international tribunal in The Hague (a la Bosnia)? Would there be an Iraqi tribunal with assistance of the International Criminal Court (a la
Rwanda Sierra Leone)?
In fact, neither of these happened. The Coalition (i.e. the U.S.) could not accept oversight by an international court for a number of political reasons, like the fact that the Bush administration had been openly hostile to and attempted to undermine the ICC, and eventually withdrew from the treaty. Perhaps the most important political consideration, though, was that any oversight by the ICC would exclude the death penalty for Saddam Hussein. That was “unacceptable to the Iraqi people,” as the Bush administration told us. But more importantly it was unacceptable to the Bush administration.
Instead of relying on the ICC, BushCo decided to “roll their own” and they established a Tribunal that took an unprecedented, and legally questionable, track: they established an Iraqi national extra-judicial process to prosecute Hussein and others for international crimes. This had never been done before. In fact, such special additions to a national judicial system by an occupying power are explicitly prohibited by article 23 of the Hague Regulations of 1907 and Convention IV of the Fourth Geneva conventions of 1949. The short story is that these binding international conventions prohibit occupying powers (i.e. the U.S. at the time) from changing the legal system, changing the status of judges, changing the penal system, changing any tribunals, or even prosecuting anyone for acts committed prior to occupation. In legal parlance, the construction of the IST effectively made it an instrument of victor’s justice, the very thing that international laws attempt to prohibit.
Finally, the Tribunal violates the International Covenant on Civil and Political Rights that requires fairness, openness, and competence in trials, requires independent and impartial justice, that is conducted by established applicable law (i.e. it explicitly prohibits special tribunals). As I explain below, the Tribunal bore no real resemblance to Iraqi law.
The Tribunal’s difficulties began immediately. Salem Chalabi, nephew of the infamous Ahmed Chalabi, was appointed General Director of the IST upon its establishment in May of 2004. He, in turn, created the structure for the IST, and appointed the initial panel of seven judges and prosecutors. Whether or not Salem Chalabi was qualified for the position (he is a U.S. educated lawyer), his appointment by the Executive branch, and the nepotism, certainly gave the appearance that the U.S. was running the show. This was confounded by serious conflicts of interest in his U.S. business and ties to “Neocon Central”—The Project for a New American Century. In August, 2004, an arrest warrant for suspicion murder was issued against Salem Chalabi while he was in London. The charges were later dropped, but Chalabi resigned as the IST General Director. The U.S. took over administration for the duration of the IST, a clear violation of judicial independence that further undermined any sense of legitimacy.
With much fanfare, Paul Bremer announced that the IST would be funded by $75 million from the U.S., a figure that was to double. The U.S. Department of Justice subsequently provided teams of investigators and prosecutors to collect evidence and develop legal strategies. The U.S. trained all the Iraqi judges and prosecutors.
In 2005, the Iraqi government took the IST decree and passed it legislatively as the Iraqi Special Criminal Tribunal, thus lending the Tribunal some legitimacy. The damage was done, however. A Tribunal initiated in violation of international and domestic law is a pariah, and can, at best, achieve bastard status in the eyes of Iraqis and the international community after being patched. Unfortunately, the ISCT was not changed to be consistent with the Iraqi system of laws. Nor did it correct other legal problems as they existed in the IST. As the courtroom drama played out, there was nothing to dispel the perception that the victor’s justice was being served.
An immediate concern with the Tribunal law was that Iraqi law had no prior provisions for crimes against humanity, war crimes, or some other crimes that the Tribunal was charged with investigating. Thus, the Tribunal violates the nullum crimen principle that is fundamental to every modern legal system. This principle prevents retroactive application of criminal laws against a defendant. If the laws were not on the books prior to 2003, Hussein and his henchmen cannot be prosecuted for violations of a law decreed (by the occupying power) in 2003 and passed legislatively in 2005. Note that if the ICC had prosecuted the case, this would not be an issue, since these laws were established internationally. But, international prosecution would have excluded a capital sentence. Here is a clear example where a Bush administration political requirement undermined the integrity of the process.
A huge difficulty with the Tribunal is that its procedures bear no resemblance to the Iraqi legal system. Rather, it is based on the U.S. legal system. Iraq’s laws are based on the Egyptian legal system which, in turn, is modeled after the French legal system. Under the French inquisitorial system, the judge acts as an investigator, using evidence provided by prosecutors prior to trial. The U.S. legal system is an adversary-accusatorial system complete with introduction of new evidence and cross-examination occurring during the trial. The roles of judge, prosecutor, and defense lawyer differ significantly under the two systems.
It can hardly be surprising then that the Tribunal started off with an air of incompetence. None of the participants had any experience with the American-style legal system. And it showed. As one scholar described it:
The proceedings were choreographed as an American hearing where an investigative judge read an indictment and asked the defendant to plead guilty or not guilty, and was thus more American than Iraqi. There is no such procedure in the Iraqi criminal justice system. The investigative judge, sitting behind a table facing Saddam, was obviously uncomfortable. On the table where he sat facing Saddam Hussein was a copy of the 1971 Iraqi Code of Criminal Procedure, which does not provide for such an American-style arraignment procedure. The investigative judge asked Saddam to enter a plea, something unknown in the Iraqi system, and Saddam, who has a law degree, realized this.
As a result, Hussein not only succeeded in disrupting the proceedings, but he succeeded in undermining the court’s credibility. Imposing a system so foreign enforced the idea that this was a kangaroo court. When the arraignment took place on 1 Jul 2004, both supporters and detractors saw an illegal concoction, created by an occupying power, and designed simply to convict and execute Hussein and other Ba’ath party officials.
This view was reinforced by numerous anomalies in this case. For example, the indictment against Hussein was apparently not handed down until 15 May 2006, almost two years after the arraignment and seven months into the trial. This violates all legal principles (including International and Iraq domestic law). Due process demands that a defendant be promptly notified of the charges brought against him prior to the start of trail.
It is easy to say that Saddam Hussein got what he had coming to him. However, the Tribunal, to be successful, had to administer real justice in a way that lent credibility to the fledgling (but now failing) Iraqi government. Instead, Saddam Hussein was convicted and executed under a cloud of illegitimacy not unlike that he used to execute 147 residents of al-Dujail in 1982. Sadly, his execution will make him a martyr to some and will deepen the civil war.
What bothers me about this is that it could have been done correctly. An international court exists and has the experience and mandate to prosecute crimes against humanity and war crimes. A conviction in that court (with the likely outcome of permanent incarceration) would have avoided making Hussein a martyr and likely would have been far less disruptive of the Iraqi government. Now it’s too late.
Chalk it up to another massive fuck-up by a Bush administration driven by incompetence and ideological extremism.