Saddam's Justice

By JOANNE MARINER

Wednesday, Jan. 03, 2007

President Bush's statement in reaction to Saddam Hussein's execution was categorical: "Saddam Hussein was executed after receiving a fair trial -- the kind of justice he denied the victims of his brutal regime."

But as with so many other claims Bush has made in recent years, this one stretches the facts. While it is true that Hussein's prosecution was far better than the justice he provided his victims -- who rarely got any legal process at all -- that does not mean that it was fair.

Saddam Hussein's trial was deeply flawed, and the court's precipitous review of his appeal was inexcusable. Perhaps worst of all was the way he was put to death, which seemed more like lynching than a legal execution.

Even those who feel no sorrow for Hussein may worry about what the proceedings mean for the future of Iraq. In retrospect, the prosecution will likely be viewed as a set-back for human rights and the rule of law. It was the showcase trial for the new Iraq, and it was a failure.

The Trial

Saddam Hussein was responsible for a massive series of atrocities, including the killing of more than 100,000 Kurds in northern Iraq as part of the 1998 Anfal campaign. Yet the crimes for which he was executed were of a much smaller scale and they took place much further in the past.

What made the 1982 killing of 148 men and boys from the town of Dujail so important was a single factor: the victims were Shiites.

The trial proceeding before the Iraqi High Tribunal were marred from the start, both in narrow procedural terms and as part of a broader context. Human Rights Watch, which published a 97-page report on the trial, documented a series of serious shortcomings in the government's conduct of the proceedings. They included:

  • government actions that undermined the independence and perceived impartiality of the court;
  • a failure to ensure adequately detailed notice of the charges against the defendants;
  • numerous shortcomings in the timely disclosure of incriminating evidence, exculpatory evidence and important court documents;
  • violations of the defendants' basic fair trial right to confront witnesses against them; and
  • demonstrations of bias on the part of the presiding judge.

In all, Human Rights Watch found that the court's conduct reflected a basic lack of understanding of fundamental fair trial principles, and of how to uphold them in carrying out a relatively complex trial. The result was a failure to meet key fair trial standards.

Given the flaws in the proceedings, Human Rights Watch found that the soundness of the verdict was questionable. It also concluded that to impose the death penalty--an inherently cruel and inhumane punishment--in the wake of such a trial was indefensible.

Yet on November 5 the Iraqi High Tribunal sentenced Saddam Hussein and two others to death.

The Appeal

Rather than address the trial's flaws, the appeal exacerbated the unfairness of the process. To begin with, contrary to international law, the tribunal's statute prohibits the possibility of commuting a death sentence. And underscoring the haste of the proceedings, the law requires that an execution take place within 30 days of the final appeal.

Hussein's defense lawyers were supposed to have 30 days to file an appeal of the verdict. Yet because the trial judgment was only made available to them on November 22, they ended up having just two weeks to respond.

They did not have to wait long to hear back from the court. On December 26, less than three weeks after the appeal was filed, the Appeals Chamber announced that it was confirming the verdict and the death sentence. There is no way that the Appeals Chamber could have given serious thought to its review of the 300-page judgment and the defense's written arguments in that amount of time.

Four days after the appeal was rejected, Hussein was dead.

The Prosecution's Impact

Besides the flaws in the trial and appeal, the swiftness of proceedings thwarted justice in another way. At the time he was put to death, Saddam Hussein was also on trial for genocide for the 1988 Anfal campaign against the Kurds. The victims, including women, children and the elderly, had been selected because they had remained on their traditional lands in northern Iraq, outside of areas controlled by Baghdad.

While other defendants are also being tried for these crimes, Hussein's execution closes the door on chances for holding the main perpetrator accountable. It sends a strong message to the Kurdish victims that their suffering is secondary to that of Iraqi Shiites.

Still, even if the way in which Saddam Hussein was prosecuted was bad for Iraq, it may yet have positive consequences for the world. Widespread revulsion with Hussein's hanging has led the Italian government to announce that it is launching a campaign at the United Nations for a global moratorium on the death penalty.

That Saddam Hussein could help bring an end to state-sponsored killing is ironic indeed.


Joanne Mariner is a New York-based human rights attorney. Her previous columns on the Saddam prosecution, the Milosevic prosecution, and the Pinochet prosecution may be found in FindLaw's archive. Her piece is based on a November 2006 Human Rights Watch report, "Judging Dujail: The First Trial Before the Iraqi High Tribunal." It was based on 10 months of observation and dozens of interviews with judges, prosecutors and defense lawyers.

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