More Than Saddam Is On Trial
More Than Saddam Is On Trial
By: Michael R. Marrus
Date: October 18, 2005
Source: Marrus, Michael R. "More Than Saddam Is On Trial." The Globe and Mail (October 18, 2005): A25.
About the Author: Michael Marrus is the dean of the University of Toronto's School of Graduate Studies. He holds graduate degrees from the University of California at Berkeley and has served as a fellow of the Royal Historical Society and the Royal Society of Canada. He is an internationally recognized historian for his work on the holocaust and has written five books on the subject. He also serves as a Vatican advisor.
In December 2004, following the U.S. led invasion of Iraq, American forces captured Saddam Hussein near his hometown of Tikrit. His incarceration marked the end to his rule of Iraq, which began in 1979 when he seized the presidency of the country. During his twenty-four-year rule, at least 280,000 Iraqis were allegedly killed under his orders, including the use of mustard and nerve gas to kill over 5,000 civilians on a single day in the town of Halabja. As a result, the government that replaced Saddam Hussein's regime plans to charge the former leader with a series of crimes, many deemed as crimes against humanity that carry the death penalty.
On July 1, 2004, the Supreme Iraqi Criminal Tribunal (originally known as the Iraqi Special Tribunal) brought seven preliminary charges against Saddam Hussein, advising that more precise charges would follow. The preliminary charges cover the duration of Hussein's rule and range from the killing of religions leaders to the gassing of civilians and the invasion of Kuwait.
Since his rise to the presidency, many allegations of crimes against humanity have been raised against Saddam Hussein. The preliminary charges initially brought against him span the years of his rule and include retaliation for uprisings and assassination attempts. According to the BBC, the United Nations High Commission for Refugees denounced Hussein's regime for "widespread, systematic torture and the maintaining of decrees prescribing cruel and inhuman punishment as a penalty for offenses." Many of the offenses relate to religious or ethnically motivated activities. Spanning thirty years, the initial charges include the July 1974 arrest and execution of Shia religious leaders. In addition, thousands of Shia Muslims who were arrested on suspicion of supporting the 1979 Iranian revolution have never been seen again. With evidence emerging of at least 270 mass graves throughout Iraq, many believe that these graves hold the remains of these religious dissidents. The Kurds also were targets for oppression under the Hussein regime. One of these operations, which appears in the preliminary charges against Saddam Hussein, occurred in 1983. Under Hussein's orders, Iraqi security forces entered the northern province of Arbil and arrested approximately 8,000 male members of the Brazani clan. The men were taken to southern Iraq and have yet to be accounted for.
Additional charges brought against Saddam Hussein relate to an organized effort to eradicate Kurds from Iraq in 1988. Between February and September 1988, Hussein initiated the Anfal campaign of ethnic cleansing against the Kurdish population of northern Iraq. Documentation secured following the 1991 Gulf War and eyewitness accounts gathered by international human rights organizations suggest that almost 182,000 Kurds were killed during the campaign. In August 1988, approximately 5,000 civilians, including women, children, and babies, were gassed in a single day. Under the orders of General Ali Hassan al-Majid, Saddam Hussein's cousin and the commander of the Anfal campaign, Iraqi forces bombarded the Kurdish town of Halabja with bombs made of mustard and nerve gases.
Other charges of crimes against humanity brought against Saddam Hussein relate to the events preceding to and following the Iraqi invasion of Kuwait in August 1990. In addition to the alleged torture and execution of Kuwaiti citizens after the invasion, Iraqi soldiers are said to have looted Kuwait City and kidnapped Kuwaiti citizens under the orders of Saddam Hussein. Also under orders, Iraqi soldiers set fire to more than 700 oil wells and opened pipelines so that the oil would pour into the Persian Gulf. Following the war, northern Kurds and southern Shia Muslims rebelled against the Hussein regime. Hussein took revenge for the uprisings by using massive military force and destroying southern marshlands and habitat, depopulating many indigenous Arabs.
The trial of Saddam Hussein for crimes against humanity begins tomorrow in Baghdad. Will this be, as some predict, "the trial of the century"? Will it advance global human rights? And will it, as some supporters of the Bush administration hope, lend legitimacy to the U.S.-promoted Iraqi regime and the American cause in Iraq, for which the humanitarian objective is perhaps the last credible justification for the original U.S. policy?
Proponents of the trial rightly advance the justice-seeking context of the proceedings against the former Iraqi dictator, who will be charged, to start, with the murder of more than 140 Shia Muslim inhabitants of the village of Dujail in 1982 in retaliation for a failed assassination attempt. Tomorrow's proceedings will initiate a series of made-in-Iraq trials of Mr. Hussein and senior members of his Baath Party. Champions of international law and the cause of human rights hope that the trial will focus on more than a dozen separate instances of grotesque atrocities as well as Mr. Hussein's naked aggression against Kuwait in 1990. They also hope Zimbabwe's Robert Mugabe, among others, will take note.
Unfortunately, a positive outcome in advancing global human rights is very much in doubt. The reason has to do with the nature of high-profile war crimes trials and the messages that emanate from them. "The purpose of a trial is to render justice, and nothing else," Hannah Arendt wrote in criticism of the Israeli prosecution of Adolf Eichmann in 1961, arguing that such trials should be narrowly confined to specific charges against the accused. Others maintain that successful prosecutions of those who have committed grave human-rights violations should serve wider purposes—to assert the international community's principled rejection of impunity for gross wrongdoing, and to set standards by which all powerful leaders must stand ready to be judged.
Robert Jackson, chief U.S. prosecutor at Nuremberg, put it famously at the International Military Tribunal in 1945: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."
How will the trial of Saddam Hussein commend itself to posterity? Much will depend on the procedures followed, including fairness to the accused—and on this we need to wait and see. But, as for the trial's wider pedagogic purposes, there are both worrying signs and serious structural defects.
The three-judge Iraqi panel that will decide Mr. Hussein's fate will certainly have difficulty establishing its credibility as an independent tribunal. According to The Associated Press this week, the Iraqi judges "received special training from American, British and Australian experts" (that is, from the leading countries in the invasion coalition). And although the Iraqi Special Tribunal's statute says costs will be borne by the Iraqis, AP notes that "the court and the training were financed by a $75-million U.S. budget allocation" in 2004. Quite unlike Nuremberg, then, where there was no doubt about the independence of those sitting in judgment, legitimate questions have been raised about whether the Iraqi panel meets international standards in this respect.
The Hussein trial also will face one of the gravest defects of Nuremberg—the complicity of one party to the trial, sitting in judgment, namely the Soviet Union, with Nazi Germany's criminal rampage against Europe in 1939. Charged with the massacre of Iraqis in 1982, the Iraqi dictator will surely point to how closely associated he was, immediately afterward, with the United States, now the leading voice, after the Iraqi government, in identifying Mr. Hussein's crimes against the Iraqi people. In the early 1980s, the Reagan administration reached out to Mr. Hussein, renewed ties broken off in 1967 and backed him in his fight against Iran—and this notwithstanding Mr. Hussein's notorious criminality at the time.
You can find photographs on the Internet showing Donald Rumsfeld, then a presidential envoy and now Secretary of Defence, shaking hands with the Iraqi dictator just when the latter was using chemical weapons against Iraqi Kurdish insurgents. If permitted, Mr. Hussein will give his side of this seemingly compromising relationship; if not, he will be seen to have been unfairly silenced. In either case, the intended didactic message will be severely qualified.
Critics of the Iraqi Special Tribunal—including Amnesty International and Human Rights Watch—also have pointed to the scope of the charges, which seem to have been narrowly cast in order to avoid another of Nuremberg's embarrassments: tu quoque arguments alleging that accusers share guilt with the accused for the kinds of crimes committed by those in the dock. According to the Special Tribunal's statute, its jurisdiction extends only to crimes committed up to May 1, 2003—the day when President George W. Bush announced the end of "major combat operations" associated with the invasion of Iraq. As with Nuremberg, when the accused denounced the Allies for their own criminality, Mr. Hussein's lawyers will almost certainly accuse coalition forces of war crimes and crimes against humanity. Undeserving though these arguments may be when compared with the scale of Mr. Hussein's atrocities, their exclusion via the tribunal's statute is likely to leave a very bad taste.
No one expects the Iraqi Special Tribunal to be perfect, and the history of international humanitarian law, including that defined at Nuremberg 60 years ago, shows that justice-seeking can rise above the imperfections in pioneering efforts. For all its flaws, the Nuremberg prosecution represented a historic effort to overcome its deficiencies. "That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law," Robert Jackson said, "is one of the most significant tributes that power has ever paid to reason." Saddam Hussein's trial will have difficulty meeting that standard.
The first trial date for Saddam Hussein was set for October 19, 2005. The charges against Hussein and seven other defendants relate to the 1982 execution of approximately 150 men and boys from the town of Dujail. These events are pursued as the first trial because the events are well documented, including video recordings of the massacre. The charges involve retaliation for an assassination attempt on Saddam Hussein by members of the Dawa religious party on July 8, 1982.
The Supreme Iraqi Criminal Tribunal is the court that will try Saddam Hussein. The court was created during the Coalition Provisional Authority and funded by the American Justice Department unit called Regime Crimes Liaison Office. The U.S. has provided $75 million for the court's formation. Unlike the U.S. court system, the defendants will appear before a lead judge who will possess complete knowledge of the findings of the investigative tribunal that referred the case. Defendants are allowed at least one counsel in the court and have access to an appellate system, if convicted. Also, unlike U.S. courts, if the defendant chooses to remain silent, this may be taken as a sign of guilt and the court holds no requirement to prove guilt beyond a reasonable doubt. Once the convicted defendant has exhausted the appeals, sentences are to be carried out within 30 days. Raid Juhi, the chief investigative judge for the Iraqi Special Tribunal, asserts that the "mass of evidence is consistent with the civilized international standards that have been set for the tribunal." Although many in the international community sought a trial similar to that of Slobodan Milosevic at the Hague, the Iraqi court has sought to establish itself with Iraqi judges trained in international criminal law by the U.S., the United Kingdom, the Netherlands, Italy, nongovernmental organizations, academics, and other legal experts. In addition to the training, the court has convened mock trials in the United Kingdom.
Legal custody of Saddam Hussein was transferred to the Iraqis on July 1, 2005, shortly after the interim government took office. The Iraqi government then reinstated the death penalty, which the U.S. had abolished. The Iraqi government has opted to try Saddam Hussein on twelve to fourteen individual charges, most of which carry the death penalty.
Burns, John F. "First Case Against Hussein, Involving killings in 1982 is Sent to a Trial Court." New York Times (July 18, 2005).
Burns, John F., and Neil A. Lewis Washington. "First Court Case of Saddam Stems from "2 Deaths." New York Times (June 6, 2005).
BBC News. "Charges Facing Saddam." 〈http://news.bbc.co.uk/2/hi/middle_east/3320293.stm〉 (accessed January 10, 2005).
Human Rights Watch. "Saddam's Day in Court: Fair Trial at Risk." 〈http://www.hrw.org/english/docs/2005/10/16/iraq11883.htm〉 (accessed January 10, 2005).