Judgment in the Green Zone: Will Saddam's Trial be Remembered as Victors' Justice or Just Deserts?

By DEAN FALVY

Wednesday, Jan. 03, 2007

With his execution just before dawn on December 30, 2006, former Iraqi President Saddam Hussein moved abruptly from the front pages, to the pages of history. There is little reason to believe he will be esteemed more highly by the latter than the former.

Saddam ruthlessly persecuted, tortured, and killed his domestic opponents. He launched unprovoked attacks on his neighbors Iran, Kuwait and Israel, ultimately bringing death to hundreds of thousands, while uniting the world against his country in the 1990-91 Gulf War. Rather than bow to his enemies after a crushing defeat, he let his people suffer through a decade of debilitating sanctions and finally through a second hopeless war against the U.S. Even the spiraling consequences of that war--and the struggles of Saddam's successors to maintain any sort of order--have done little to burnish his reputation.

Given this record, few who accept capital punishment in any possible scenario would argue that Saddam Hussein did not earn his appointment with the hangman's noose. His crimes were massive, premeditated atrocities for which he expressed no remorse.

Yet history's verdict will likely be far from unanimous regarding the process that got him to the execution chamber. Saddam was tried for real crimes, but putting a former head of state on trial is always a political as well as a legal act. Like previous efforts to bring a prior regime to justice, Saddam's trial will be remembered as much for what it showed about those sitting in judgment, as for what it proved about the accused.

An Unexpected Dilemma

By launching its March 2003 invasion of Iraq with a series of airstrikes on reputed Saddam hideouts, the United States unmistakably intended to kill the Iraqi president without further ado. Even when Saddam Hussein went into hiding after the fall of Baghdad, he was expected to fight to the death rather than surrender. So when soldiers of the 4th Infantry Division dug the bedraggled dictator out of a "spider hole" on December 13, 2003, the U.S. authorities faced a difficult question: what to do with him.

They could try Saddam for international war crimes, or they could turn him over to his own people for judgment. (At least in theory, they could have dealt him rough justice without any formality. Though this was always the least likely of scenarios, it was apparently Saddam's expectation.)

The Historical Precedents

The spectacle of a vengeful people disposing of a tyrant is as old as history itself. In most cases, no judicial process of any kind was considered necessary. The trials that were afforded to monarchs who lost their heads in revolutions (for example Louis XVI and Charles I) are rarely remembered as models of fairness. Meanwhile, very few complain that an injustice was done to the brutal dictators who were summarily executed without trial (for example, Mussolini and Ceausescu).

The Twentieth Century brought a new innovation, with higher aspirations to justice: the international war crimes trial. Rather than demand that the defeated nations try their own war criminals (as had been attempted, with little success, after the First World War), the Allies decided to take on the job themselves after winning the Second. Even this decision was not obvious. British Prime Minister Winston Churchill's preferred method of dealing with captured Nazi leaders was a firing squad on the spot. He dismissed an international tribunal as a "mock trial" and "a farce," but ultimately agreed to one at the insistence of his American and Soviet allies.

Tribunals were convened at Nuremberg and Tokyo to render judgment on the German and Japanese political, economic, and military leaders who planned and executed "aggressive war," as well as those who committed atrocities while fighting it. In the 1990s, renewed interest in the Nuremberg precedent led to the establishment of special international tribunals for war crimes in the former Yugoslavia and Rwanda. These were followed by the creation of a permanent International Criminal Court (ICC) at The Hague in 2002.

These international tribunals brought the weight of authority (multinational panels of distinguished judges, carefully-drafted charges) and the solemnity of bureaucratic procedure (blizzards of documents, simultaneous translations for the accused) to the previously chaotic process of meting out punishments to one's foes. The defendants were granted the right to counsel and to cross-examine witnesses; they could even contest the legal basis for the charges themselves (albeit with little chance of success).

How the Nuremberg Trial Succeeded

The Nuremberg trials remain the most famous and significant episode in the history of international law. The trials' subject matter is so compelling--the unprecedented evil of the Nazi regime, the gruesome resumes of the defendants (led by Hermann Göring)--that we would surely remember the trials even if their legal innovations had not been so revolutionary.

The prosecutors at Nuremberg (representing the U.S, Britain, the Soviet Union and France) brought four groups of charges: (1) conspiracy for the accomplishment of crimes against peace; (2) planning, initiating and waging wars of aggression; (3) war crimes; and (4) crimes against humanity (that is, genocide). Of these, only "war crimes" (that is, violation of the agreed rules of war, such as by shooting prisoners) had much prior precedent. The charges relating to crimes against peace and crimes against humanity were almost entirely novel. Although various international treaties had ostensibly banned "aggressive war," no criminal penalties for violating this concept had ever been specified for individuals, until the creation of the tribunal. Similarly, though the idea of "crimes against humanity" had never been tested before in a court of any kind, the prosecutors did not shy away from bringing charges related to the Holocaust and other genocidal acts.

To prove this vast case, the prosecutors compiled a staggering mass of evidence, just months after the end of the war. The tribunal's records include over a million pages of documents. The transcripts of the proceedings fill 22 volumes. This weight of proof proved fatal to many of the defendants, but provided a boon to historians. Any attempt to dispute the enormity of Nazi crimes or excuse any of those charged must first contend with this impressive evidentiary edifice.

The judgments rendered at Nuremberg were stern, but not devoid of nuance. Although the tribunal firmly rejected the famed "Nuremberg Defense" ("I was just following orders"), it did recognize varying degrees of knowledge and culpability among the defendants. Of the 23 leading Nazi figures charged at the 1945-46 Nuremberg trial, 12 were sentenced to death by hanging, three to life imprisonment, and four to shorter prison terms. Three were acquitted and one was found medically incompetent to stand trial.

Expressions of surprise and remorse regarding the scale of Nazi horrors may have saved a few co-conspirators (such as Albert Speer) from the gallows. Even those defendants who steadfastly refused to acknowledge the Nazi regime's criminality, or the Allies' right to try them, were forced to confront the prosecutors' relentless barrage of evidence, hour after hour, day after day. Other than Göring (who sparred energetically with the prosecutors, and eluded the hangman with a hidden cyanide pill), few had much defiance left by the end of the trial.

Criticisms of Nuremberg

In spite of this apparent success, the Nuremberg trials were sharply criticized by some at the time. The defendants and their supporters predictably decried "victors' justice." Even some who had no sympathy for the Nazis, such as Supreme Court Justice William O. Douglas, were troubled by the lack of precedent and complained that "law was created ex post facto to suit the passion and clamor of the time." In the European civil law tradition, this concept was expressed as a violation of the nullum crimen principle (that is, the principle that no crime can be punished in the absence of a previous penal law), which further rejects the Anglo-American notion of common-law crimes.

Others pointed out the incongruity of Soviet prosecutors and judges condemning Germans to die based on charges many of which could have easily been brought against Stalin and his henchman. And there was no equivalent forum to examine tactics of the Allies (such as area bombing of civilian populations and unrestricted submarine warfare) that were included in the indictments as war crimes when practiced by the Axis powers.

Yet history has been kind to the Nuremberg judgments. From a distance of sixty years, the trials look less like an act of vengeance than one of restraint. Whatever shakiness might have existed in their original legal foundation was shored up by the dignity and moderation with which the proceedings were conducted. Since then, the creation of subsequent international tribunals and the adoption of positive law (such as the United Nations Charter and the Genocide Convention) have essentially ratified the trials' most contentious innovations.

Politically, the triumph of the Nuremberg trial has been even more complete. The legitimacy of the tribunal and its judgments is widely accepted not only by the victorious Allies, but gradually and increasingly among the German people as well. (The verdict of the Tokyo trials remains less enthusiastically received in Japan.)

Opting for an Iraqi Court

Upon taking office in 2001, the George W. Bush Administration proved to be an ironic redoubt of opposition to many of the principles established at Nuremberg. Even before the invasion of Iraq, the administration reversed U.S. support for the permanent International Criminal Court (ICC), insisting that U.S. policymakers and military personnel should be answerable only to American courts for their conduct in war. Since then, the U.S. has waged a vigorous diplomatic campaign against the ICC, and even passed a statute authorizing the use of military force to free U.S. service members held by an international tribunal.

The Yugoslav and Rwandan war crimes tribunals were largely shaped by European sensibilities, including opposition to capital punishment. Referral of Saddam Hussein's case to the ICC or a similar tribunal would have ruled out the death penalty--an incomprehensible step from the point of view of the Bush Administration, given the gravity of Saddam's crimes.

Referral of Saddam's case to the Iraqi people and their new government also served a political purpose: defusing the charge of "victors' justice." By having Iraqis hold Saddam accountable for violations of Iraqi law, tricky questions of international jurisdiction and ex post facto laws could be dodged. An Iraqi trial would also make it harder for Saddam's defense to put the U.S. invasion on trial, even symbolically.

Yet despite the Bush Administration's insistence, Saddam's trials never existed in a purely Iraqi context. Until the very hour of his execution, the former dictator remained in the custody of the U.S. military. His trials took place in the heavily guarded Green Zone, a compound in Central Baghdad under direct U.S. control. The prosecution and the court relied heavily on U.S. financing and advisors. When actions of the Iraqi court seemed to conveniently mesh with the Administration's political priorities (as when it sentenced Saddam to death two days before the 2006 U.S. midterm elections), it was hard to avoid the notion that the U.S. was guiding the proceedings behind the scenes, even if this was not universally the case.

Criticisms of the Iraqi Process

Beyond the apparent preponderance of U.S. influence, international observers have faulted Saddam's trials on several grounds. After 30 years of dictatorship, the lack of a well-trained and experienced Iraqi legal establishment made a trial of this magnitude a daunting task. The impartiality and independence of the trial judges (one of whom was abruptly removed after making a remark in court that was seen as sympathetic to the former dictator) has been strongly questioned. Three of Saddam's defense lawyers were murdered during the trial, and several others subsequently resorted to defending him from the safe distance of Amman, Jordan. The remaining defense attorneys complained of numerous irregularities, from the admission of hearsay evidence to the failure to disclose evidence to the defense.

The circus-like atmosphere was assisted by Saddam himself, who proclaimed himself the legally elected Iraqi president, enjoying immunity from prosecution. Perhaps emulating the former Serbian President Slobodan Milosevic (who died midway though his own interminable war crimes trial at The Hague), Saddam delivered blistering diatribes against the court's legitimacy at every opportunity.

The perceived procedural defects of Saddam's trial will cost it the admiration of international legal scholars and human rights groups. However, these defects will not, in themselves, cast much doubt upon the verdict or make it politically unpopular, either in Iraq or abroad. Rather, it is the selective approach to prosecution and the unseemly haste with which the sentence was carried out that are likely to divide Iraqis and disquiet foreigners for some time to come.

Two Trials, but Only One Verdict

Saddam faced two trials before the Iraqi Special Tribunal (IST). The first alleged crimes against humanity in connection with the indiscriminate reprisal killings of 143 men and boys after an assassination attempt against Saddam in the Shiite village of Dujail in 1982. The second related to Saddam's use of poison gas and other atrocities in the genocidal "Anfal" campaign against Iraq's Kurdish population during the late 1980s, resulting in up to 200,000 deaths.

Unlike the Nuremberg process, where all the charges against the major defendants were brought together in one sweeping indictment and trial, the Iraqi charges against Saddam represented only a sampling of the crimes for which he could have been tried.

Moreover, the two trials proceeded on totally independent timelines, with the Anfal trial barely underway at the time when the death sentence in the Dujail process was handed down. After Saddam's appeal was rejected, the Iraqi authorities quickly concluded that the ongoing Anfal trial was no reason to delay the dictator's hanging. His name will simply be struck from the list of defendants, and the Anfal trial will proceed without him, though one wonders how responsibility for the crime can be properly apportioned if its chief architect is not there to answer for it. Imagine if the Allies had captured Adolf Hitler before he could commit suicide, only to execute him quickly for a crime like the 1934 Reichstag fire and subsequent purges, leaving his underlings to answer for World War II and the Holocaust. Relatively speaking, that is what the new Iraqi government has done.

Thus, Saddam Hussein will never be judged for the Anfal campaign against the Kurds, or for the attacks he launched on Iran, Kuwait and Israel. He will never be called to account for his bloody purges within the Iraqi leadership, or for campaigns of repression against the Sunni population from which he came. He will not even stand trial for his other bloody assaults against the Shiites, many of which dwarfed the death toll from Dujail.

Why the Charges Matter More than the Verdict

Does it matter? Can't Saddam's death penalty for the Dujail reprisals simply stand as a proxy for all his other crimes? Perhaps the prosecutors simply took it on first because it was a relatively simple, discrete, provable case. After all, to put Saddam on trial for literally all his crimes would have been impossible--either it would have taken too long, or the process would have been too cursory to be credible.

That answer did not prevent much more ambitious prosecutions at Nuremberg, Tokyo and The Hague. Nor is it likely to satisfy an Iraqi public that is badly split on sectarian lines. Wouldn't it have been wiser to try Saddam for some of the crimes that he committed against all sectors of Iraqi society, not just the now-dominant Shiites? For the future health of Iraq and its neighbors, shouldn't Saddam have been condemned for his wars of aggression? Couldn't there have been a way to wait at least until the Anfal case had been decided, so that the Kurds could see a measure of justice for an atrocious genocide? Instead, the historical record will remain incomplete, and Saddam will have answered only for his crimes against one sectarian group.

A Rush to Execute Judgment

The sudden push to hang Saddam before the process of legal accountability was even remotely complete suggested two things: political expediency and sectarian revenge. An Iraqi government with surer footing could have afforded to wait. The bizarre and ghastly scene of Saddam's appearance at the gallows, exchanging taunts with his vocally Shiite executioners while onlookers recorded the moment for posterity on their mobile phones, did not inspire much confidence in the dignity of the new Iraqi state. That Saddam and his hangmen felt compelled to continue their argument right up until the noose snapped demonstrated how little was settled in the courtroom.

President Bush, in the meantime, declared that "Saddam Hussein was executed after receiving a fair trial -- the kind of justice he denied the victims of his brutal regime."

True enough, to a point. The question lingers whether this kind of justice was really different enough.


Dean G. Falvy, a graduate of Yale University and Harvard Law School, is an attorney focusing on corporate and international law.

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