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Synthesis/Regeneration 48   (Winter 2008)

Was Justice Done in the Trial of Saddam Hussein?

review by John Quigley

The Trial of Saddam Hussein, by Abdul-Haq Al-Ani. Atlanta: Clarity Press, 2008, 421 pp. $21.95 ISBN 978-0932863-58-4 (paper)

The Trial of Saddam Hussein is an account by an Iraqi lawyer who was in some measure an insider in the judicial proceedings that led to the execution of Saddam Hussein in Iraq. Although an opponent of Saddam Hussein while the latter was in power, Abdul-Haq Al-Ani, living abroad in the United Kingdom, participated, at the request of Saddam Hussein's daughter, in the early stages of the proceedings. He decided, as did some other lawyers who were involved at that stage, not to participate in defending Saddam Hussein before the Iraqi special tribunal, to demonstrate, as he says, "non-recognition" of the tribunal. "The Tribunal," he writes, "was destined from its inception to convict Saddam Hussein, which made it a political rather than a judicial trial."

Al-Ani sees the trial as having served a number of purposes. He says that Saddam Hussein had to be killed because "he alone had all the secrets." Another purpose was to serve as a "reminder to all Arab and Third World leaders that a similar fate awaits each and every one of them who dares to defy imperialist designs for the Arab and developing world." A third was "to vindicate an aggression which all but erased Iraq as a political and social entity."

Saddam Hussein had to be killed because "he alone had all the secrets."

The third alleged purpose would indeed seem to have played a role. As Al-Ani writes, once the weapons of mass destruction rationale for the Iraqi invasion proved ephemeral, major stress was placed by the United States on how bad Saddam Hussein had been as a ruler. Trying him in a court of law would provide the proof.

Al-Ani thus views the trial as an effort to justify an invasion whose stated justification had proved empty. If there were no weapons of mass destruction in Iraq, then removing an evil dictator was the fall-back justification. Demonstrating the evils of the prior regime would make de-Baathification and reorientation of the Iraq economy seem more acceptable.

Trials of overthrown government leaders are rarely a model of legal propriety. Inevitably, those who assume power seek to demonstrate the evil of the overthrown leader in order to justify their own accession to power. It is difficult to try a person about whom nearly everyone in the country has strong opinions, either for or against. Particularly when there is a widespread negative opinion, as was true in Iraq for Saddam Hussein, it is difficult to maintain such principles as a presumption of innocence.

An international tribunal would not do to try Saddam Hussein, Al-Ani writes, because it would not have been subject to the control of the United States. The trial carried a risk of backfiring on the United States because of the close connection it had with Saddam Hussein in the 1980s, when Iran was the United States' main antagonist, and Washington sided with Iraq. Were too much latitude given to the defense in presenting evidence, embarrassing aspects of US cooperation, in particular in the supply of materials, might have come to light.

Al-Ani sees the trial as illegal for having flowed from an illegal invasion.

Al-Ani sees the trial as illegal for having flowed from an illegal invasion. On this analysis, the trial was a consequence of an illegal act, therefore itself illegal. Al-Ani views the trial as illegal because Saddam Hussein was the president of Iraq, thereby enjoying immunity from prosecution under Iraqi law. Under Iraqi law, immunity attached to the country's president. Saddam Hussein was, of course, no longer functioning as president, but only because of the invasion. Therefore, he reasons, the removal of Saddam Hussein was unlawful, leaving him still, in law, the president. As Al-Ani describes, the tribunal refused to respond to pleadings that identified Saddam Hussein as the president of Iraq, as their pleadings typically did.

Al-Ani points to the absence of any offense of "crime against humanity" in Iraqi penal law. The trial that led to Saddam Hussein's execution involved an allegation of his responsibility for the execution of approximately 150 residents of the town of Dujail. Those persons were convicted by an Iraqi court following an attempted assassination of Saddam Hussein during a visit he made to Dujail. The individuals in question were convicted of participating in the assassination plot. The indicting instrument at Saddam Hussein's trial viewed Saddam Hussein as responsible for having signed off on the executions, following the convictions.

Saddam Hussein was charged, convicted, and executed on the rationale that his role in regard to the deaths in Dujail constituted a crime against humanity. The Iraqi penal code specifies that no act is a crime unless defined as such in the code. The rationale for what appears to be a violation of this principle is that crimes against humanity were defined in international law. The statute creating the Iraqi tribunal gave it jurisdiction over crimes against humanity, but that statute is not the penal code and, moreover, was adopted long after the acts charged. Charging a crime against humanity in an Iraqi court does appear to violate the Iraqi penal code.

Saddam Hussein was the president of Iraq, thereby enjoying immunity from prosecution under Iraqi law.

Governments trying overthrown leaders often succumb to the temptation to file charges of crimes against humanity or genocide, rather than murder, out of a feeling that murder does not adequately describe what was done. Al-Ani points to a provision in the statute of the tribunal that allows the executive to transfer judges off the tribunal "for any reason." A basic principle of justice is that judges have reasonable tenure protecting them from the risk that they will be removed if by their decisions they offend the executive. In the Saddam Hussein trial, this possibility played itself out, as judges were removed.

The most experienced Iraqi jurists were not considered, because they had all had an affiliation with the Ba'ath party. That policy also meant that most of the law-trained Iraqis eligible to sit were individuals who had been in some fashion opposed to Saddam Hussein.

The assassination of defense lawyers was raised by the lawyers as an impediment to further proceedings, but the tribunal continued them. The defense lawyers could hardly function as they saw their colleagues being killed one by one. If minimum security is unattainable for a trial, proceedings need to be postponed or discontinued.

Al-Ani finds flaws in the way in which the death sentence was imposed. The Iraqi constitution requires ratification by the president for a death sentence. But the statute of the tribunal said that no authority, including the president, could grant a pardon or reduce a sentence. The tribunal took the statute provision to override the constitution, a questionable route since a constitution is superior in law to a statute. In the event, no clemency procedure was available, a fact seized upon by Louise Arbour, High Commissioner for Human Rights at the United Nations. Arbour, in the days preceding the execution, called on Iraq to make clemency available. Under international human rights standards, clemency must be available when capital punishment is imposed. Clemency need not be granted, but a procedure must exist to request clemency.

Al-Ani finds the US legally at fault for the execution since it turned Saddam Hussein over to be executed. The United States was in a tenuous position in regard to the proceedings. The Coalition Provisional Authority had initially drawn up a statute for the tribunal. That statute was re-adopted with amendments by the Iraqi government, once it was established. The CPA's version was drafted by US lawyers. The United States, of course, had physical custody of Saddam Hussein throughout. The US lawyers who advised throughout the proceedings did make efforts to improve the quality of justice. It was certainly in the interest of the United States that the proceedings be seen to be fair. However, at the end of the day, despite the flaws in the proceedings, the United States delivered Saddam Hussein to the hangman.

His book details many more flaws than can be recounted in this review. Al-Ani provides an extensive introduction on the history of Iraq in the years leading up to the 2003 invasion. That account is argumentative, providing strong opinion. Al-Ani on occasion makes references to events in ways that will make sense only to a reader already familiar in some detail with the history of Iraq. Nonetheless, his account is fascinating reading. One need not agree with, or even follow, each and every one of his assertions to find his book a penetrating analysis of Iraq's place in the world and of the Saddam Hussein trial in particular.

John Quigley teaches international law and human rights law at Ohio State University. He is author of The Genocide Convention: An International Law Analysis.

[12 dec 08]

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