On Saturday I documented some ways that the Special Iraqi Criminal Tribunal—the extra-judicial Tribunal under which Saddam Hussein was convicted—was a sham. The root of the problem is that the U.S., while acting as an occupying power, needed to create the Tribunal for ideological reasons: to avoid the International Criminal Court so despised by Bush, and to ensure that capital punishment would be on the menu. The Tribunal was a sham in numerous ways:
- The Tribunal was created by an occupying power, which is prohibited by long-standing treaties and conventions
- The Tribunal’s process was an American style adversary-accusatorial system rather than an Iraqi style inquisitorial system (modeled after French law)
- The Tribunal’s charges were in violation of the nullum crimen legal principle (and Article 19 of the Iraqi Constitution)
- The implementation of the tribunal included numerous procedural flaws like an indictment issued seven months into the trial
My point wasn’t to defend Hussein. Rather, I argued that the U.S. and Iraqis, in prosecuting a dictator for his abuse of judicial power, should have taken the moral and legal high ground, and set an example for the world of good democracy. The prosecution of Hussein should have been unimpeachable—not for Hussein’s sake, but for the sake of restoring some credibility for American democracy (you know, after illegally invading a sovereign nation under false pretenses) and to empirically establish legitimacy for the new Iraqi government.
So, we missed that badly needed opportunity.
Today’s New York Times further documents illegitimacy in carrying out the sentence:
The American role extended beyond providing the helicopter that carried Mr. Hussein home. Iraqi and American officials who have discussed the intrigue and confusion that preceded the decision late on Friday to rush Mr. Hussein to the gallows have said that it was the Americans who questioned the political wisdom—and justice—of expediting the execution, in ways that required Prime Minister Nuri Kamal al-Maliki to override constitutional and religious precepts that might have assured Mr. Hussein a more dignified passage to his end.
Uh-huh. The U.S. government had concerns and questions about what was going on. But, in the end, they handed over Hussein anyway.
That works for me about as well as the excuse “but…but…but, Your Honor, I really did have concerns and questions about the legitimacy of robbing that bank….”
One political concern was realized during the execution. A video of the hanging showed an…
…unruly, mocking atmosphere in the execution chamber.
This continued, on the video, through the actual hanging itself, with a shout of “The tyrant has fallen! May God curse him!” as Mr. Hussein hung lifeless, his neck snapped back and his glassy eyes open.
The cacophony from those gathered before the gallows included a shout of “Go to hell!” as the former ruler stood with the noose around his neck in the final moments, and his riposte, barely audible above the bedlam, which included the words “gallows of shame.” It continued despite appeals from an official-sounding voice, possibly Munir Haddad, the judge who presided at the hanging, saying, “Please no! The man is about to die.”
The Shiites who predominated at the hanging began a refrain at one point of “Moktada! Moktada! Moktada!”— the name of a volatile cleric whose private militia has spawned death squads that have made an indiscriminate industry of killing Sunnis — appending it to a Muslim imprecation for blessings on the Prophet Muhammad. “Moktada,” Mr. Hussein replied, smiling contemptuously. “Is this how real men behave?”
Of course, the issue isn’t about dignity for Hussein. The concern was that by coming off as a Shi’ite lynch mob, the execution further contributes to the sectarian divide in Iraq. It will fuel the civil war. It will translate into more dead and maimed Iraqis and U.S. soldiers. And that Hussein came off as dignified in the face of a lynch mob is a symbolic failure for the U.S. in “fostering democracy” in the Mideast.
The U.S. was correct when it…
…counseled caution in the way the Iraqis carried out the hanging. The issues uppermost in the Americans’ minds, these officials said, were a provision in Iraq’s new Constitution that required the three-man presidency council to approve hangings, and a stipulation in a longstanding Iraqi law that no executions can be carried out during the Id al-Adha holiday, which began for Iraqi Sunnis on Saturday and Shiites on Sunday.
It was Prime Minister Nuri Kamal al-Maliki who pushed for an immediate execution. The largest snag for Maliki was that, by the Iraq constitution, he needed
…a decree from President Jalal Talabani, signed jointly by his two vice presidents, upholding the death sentence, and a letter from the chief judge of the Iraqi High Tribunal, the court that tried Mr. Hussein, certifying the verdict. But Mr. Talabani, a Kurd, made it known that he objected to the death penalty on principle.
Rather than adhering to the Iraqi constitution and law, Maliki developed a work-around.
The Maliki government spent much of Friday working on legal mechanisms to meet the American demands. From Mr. Talabani, they obtained a letter saying that while he would not sign a decree approving the hanging, he had no objections. The Iraqi official said Mr. Talabani first asked the tribunal’s judges for an opinion on whether the constitutional requirement for presidential approval applied to a death sentence handed down by the tribunal, a special court operating outside Iraq’s main judicial system. The judges said the requirement was void.
Apparently, everyone was willing to be convinced by the Tribunal judges who opined that the legislation creating the Tribunal (Law No. 10, passed on 9 Oct 2005) took precedence over Article 70 of the Iraqi constitution that requires the President to “[r]atify death sentences issued by the competent courts.” But, the Tribunal cannot override the Constitution; Article 92 prohibits “Special or exceptional courts.”
Without presidential ratification, the hanging violated the clear rule of law (as codified in the Iraqi constitution). It really was a lynching.
The fact that Iraqi law prohibits executions on holidays was never fully addressed. Instead, the Iraqis used simple psychological tricks on us to secure Hussein:
‘Who is going to execute him, anyway, you or us?’ The Americans replied by saying that obviously, it was the Iraqis who would carry out the hanging. So the Iraqis said, ‘This is our problem and we will handle the consequences. If there is any damage done, it is we who will be damaged, not you.’”
To this, the Iraqis added what has often been their trump card in tricky political situations: they telephoned officials of the marjaiya, the supreme religious body in Iraqi Shiism, composed of ayatollahs in the holy city of Najaf. The ayatollahs approved.
It is untrue that there would be no damage to the U.S. The U.S. needed the trial and execution of Hussein to be above reproach. There is only one way that the U.S. can achieve something resembling a “victory” in Iraq, and that would be to leave behind a functioning democracy.
Instead, we have replaced a lawless Sunni dictator with a lawless Shi’ite theocracy. And Iraq is led by a Prime Minister who has now committed one of the crimes that Hussein was guilty of: a lawless execution.
And to what end? What difference would it have made if Hussein’s execution had to wait for a week or wait for several years until a new President was elected?
None of the Iraqi officials were able to explain why Mr. Maliki had been unwilling to allow the execution to wait.
But the explanation may have lain in something that Bassam al-Husseini, a Maliki aide closely involved in arrangements for the hanging, said to the BBC later. Mr. Husseini, who has American citizenship, described the hanging as “an Id gift to the Iraqi people.”
Hey, well, you know…whatever it takes for Happy Holidays.