http://jurist.law.pitt.edu/forumy/2006/11/...ond-justice.php

The Hussein Verdict: Beyond Justice

President Bush hailed the verdict condemning Saddam Hussein to death by hanging “as a milestone in the Iraqi people’s efforts to replace the rule of a tyrant with the rule of law.” Others have been less sanguine in their reactions. Amnesty International promptly condemned the verdict, decrying the trial as “deeply flawed and unfair.” Clearly the trial suffered from numerous and substantial flaws. Three members of the defense team representing Saddam and his co-defendants were assassinated. The tribunal was subjected to withering political pressure from the Iraqi government, resulting in the resignation of the first presiding judge and in the withdrawal of a possible replacement. The judge who finally took the reins of control, Raouf Rasheed Abdel-Rahman, frequently got into shouting matches with the defendants and openly favored the prosecution. Had the trial been removed to an international tribunal, as many human rights observers counseled, such defects would never have been tolerated.

All the same, the trial was not a complete sham. The prosecution was able to present strong evidence connecting Saddam to the killings in Dujail. The judges apparently struggled long to weigh the evidence brought against the various defendants (though their compendious written judgment has not yet been made public). The fact that one defendant was acquitted is a good sign. At the very least, the judges appeared to have learned the Nuremberg lesson that nothing legitimates the death sentence of an architect of atrocity better than the acquittal of a lackey. So if the Hussein trial failed to live up to the hopes of some that Iraqi jurists would quickly master the rules of the rule of law, it also disappointed the doomsday prognostications of others who foretold a legal catastrophe.

But in assessing the success of the trial, it won’t do simply to focus on the quality of the justice dispensed. For the trial had other goals, and we need to ask whether these were accomplished. Chief among these was the didactic purpose of the trial. Like the Nuremberg, Eichmann, and Papon trials, the Hussein proceeding meant to clarify the historical record; it sought to give an accounting to an Iraqi and international audience of the crimes perpetrated by Saddam’s regime. Here, however, the trial stumbled. In part, this was a result of the very focus of the trial. Eager to establish a manageable case, the prosecution focused on a relatively minor act – the reprisal killings of 148 Shiites in Dujail in 1982. While this narrow focus might have made prosecutorial sense, the crimes themselves pale in comparison to the violence that grips the Iraqi nation on a daily basis. This fact alone creates a strong case for delaying Saddam’s execution until the completion of his present trial for atrocities committed against Iraqi Kurds during the Anfal military campaign in the late 1980s. That trial at least promises to do fuller justice to the abominable crimes of Saddam’s regime.

The didactic value of the trial was also upset by Saddam’s showmanship. At no point in the proceeding did the exposure of horrific crimes subdue the former strongman or embarrass him into a moment of contrition. To the contrary. Stealing a page from the playbook of Slobodan Milosevic, whose death in March deprived the Hague Tribunal from ever passing judgment, Saddam demonstrated showed himself more than adept at disrupting proceedings. The photo that accompanied the New York Times’ headline, “Hussein Is Sentenced to Death by Hanging,” spoke volumes: absent are the five members of the Tribunal that pronounced judgment; instead, monopolizing the page is an image of the ever-defiant former ruler, brow knitted in anger, shouting and waving an admonishing finger at the court. (A disembodied hand, presumably belonging to a guard, grabs at Saddam’s wrist in a feeble attempt at restraint). CNN’s coverage of the verdict likewise focused not on the Tribunal but on Saddam; indeed, in the cacophony of angry voices that accompanied the reading of the verdict, only the former dictator’s prevailed. From the simultaneous interpreter, the viewer heard not the court’s words of condemnation but Saddam’s words of denunciation. It was as if the defendant sat in judgment on the Tribunal.

By upstaging the trial as a didactic exercise, Saddam also undermined its function as a tool of reconciliation. By conferring public recognition upon a suppressed history of victimization, and by providing an irrefutable accounting of wrongs, trials can establish a common history that serves the interests of reconciliation. But by interrupting the testimony of victims and haranguing the court with challenges to its legitimacy, Saddam only succeeded in further polarizing Iraqi society. This perhaps was unavoidable. After all, in a nation in which governmental officials cannot even agree to convene a national reconciliation conference, can we expect a trial to contribute greatly to this end?

Does this mean that the Hussein trial was a failure? It’s worth remembering that in the decades directly following the Nuremberg trial, the majority of Germans viewed the trial with contempt, as an exercise in victor’s justice. Now Nuremberg is generally viewed in Germany with respect – as an event that prodded Germans to a collective reckoning with their troubled past. This is not to say that history will be equally kind to the Hussein trial. In the short term, it is hard to imagine the verdict contributing anything to the stability of Iraq. Ironically, its greatest affects are likely to be felt not in that worn-torn state, but in America, where it might shore up flagging support for Republican candidates. I say “ironically,” because we are assured that the timing of the verdict, on the eve of the midterm elections, was entirely fortuitous.


Lawrence Douglas is Professor of Law, Jurisprudence & Social Thought at Amherst College

http://jurist.law.pitt.edu/forumy/2006/11/...ct-abuse-of.php

The Saddam Hussein Verdict: An Abuse of Justice


[I]We must never forget that the record on which we judge these defendants 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.[/I]
- Justice Robert Jackson at Nuremberg


The verdict of guilty and the trial of former Iraqi President Saddam Hussein has failed the Iraqi people and failed the rule of law. It is an abuse of justice.

Politically it sends a clear message to the Iraqi people: if they want to defend themselves they cannot look to law, they cannot look to the US government, they cannot look to the occupation government the US setup in Iraq … they must defend themselves using all necessary means by which national liberation movements are permitted to defend themselves.

The trial of the Iraqi President has been declared unfair by every independent expert who has reviewed it. It constitutes the worse form of "victors' injustice."

On 1 September 2006, the UN Working Group on Arbitrary Detention declared the trial unfair and a violation of international law [opinion, PDF]. The Working Group is the UN body of five experts of fair trial, including an Iranian. The Working Group issued its opinion after scrutinizing the trial proceedings for two years, reviewing hundreds of documents, and even issuing a preliminary decision telling the United States and its occupation government what it had to improve in a preliminary judgment a year earlier. The consideration of the proceedings before the Iraqi Special Tribunal by the Working Group, were more thorough than the Iraqi Special Tribunal's own review of the evidence in the cases before it.

The Iraqi Special Tribunal (IST) did not even review the most important evidence in the trial. This evidence is the records of the trial proceedings of the Dujail trials. First, the IST claimed that there were no records. Then the IST allowed the prosecution to introduce a few selected pages of the Dujail trial proceedings into evidence. Then the IST admitted the Dujail trial record existed, but refused to provide it.

Similarly the IST refused to allow defense lawyers go to Dujail to even see the site of the alleged crimes or to interview witnesses. When the defense lawyers found witnesses, the court ordered their beating and arrest and sent a person from the court to coach and threaten the defense witnesses.

But perhaps the IST thought the defense lawyers were just lucky to be alive. Four defense lawyers were killed, allegedly by Iraqi government agents, some with American soldiers nearby. No attacker has been arrested or punished; the attacks have not even been investigated. An American marshal also assaulted an American lawyer at the courthouse threatening him with further bodily harm; and the US government has refused to respond to a complaint about this treatment. Even on the day of the verdict the chief judge ordered 78-year-old former US Attorney-General Ramsey Clark accosted by bailiffs for seeking to submit arguments proving that the IST was unfair. The IST had refused to accept these submissions from the Iraqi lawyers for months despite repeated attempts to deliver them.

Indeed, when the defense lawyers submitted preliminary arguments challenging the legality of the IST in November 2005, the clerk, Mr. Hasan Riza, in January 2006, returned the papers saying the IST "did not want them" and would not decide them.

But despite their impotence in respect of their responsibility for security, the United States has trained the judges to act as they have. In addition the US has allegedly written the final decision as they wrote the closing statement for the defense after the judge forced the defense lawyers chosen by the defendants out of the courtroom.

While the verdict was alleged being written by the occupying powers thousands of Iraqis have died because these same people can't provide basic security in the country they illegally invaded and occupied.

This arrogant abuse of the law is part and parcel of the illegal invasion of Iraq. The trial was the direct result of multiple violations of international law, especially the illegal crime of aggression perpetrated against the Iraqi people. Actions that are the result of an illegal action must not be recognized by any state in the international community.

The trial was undertaken by a court set up and controlled by the United States, an occupying power. This violates the express provisions of international humanitarian law in the Fourth Geneva Convention.

The trial was plagued by insecurity that saw defense lawyers, judges, and witnesses killed or intimidated. When the defense lawyers complained they were told there was nothing more that could be done. They were told not to complain about the murder of four defense lawyers by person allegedly connected to the Iraqi government.

The defense was given no time and no facilities to prepare a defense, even the President' money was stolen from him when he was captured by the Americans. All exculpating evidence was withheld from the defense; defense witnesses were threatened by court officials; defense lawyers were assaulted by US officials; and the defendants we not given the charges against them until eight months after the prosecution had started presenting evidence and the day the defense was required to
start its case. The list of violations is long and undoubtedly the reason why every independent expert has found the trial unfair.

The Dujail trial is one of the worst abuses of justice in modern history. If Nüremberg was victors' justice under difficult circumstances, the trial of the Iraqi President Saddam Hussein was victors' injustice founded on George W. Bush's crime of aggression.


Curtis F.J. Doebbler is an international human rights lawyer and a member of the defense team for Saddam Hussein.

http://jurist.law.pitt.edu/forumy/2006/11/...nity-saddam.php

Facing Down the Beast of Impunity: The Saddam Trial in Context

It was rough justice, but it was justice nonetheless, and it reflects mankind’s early attempts to face down the beast of impunity. It wasn’t pretty to watch, but the trial of Saddam Hussein and his henchmen shows that we are at least doing something to account for mass atrocity. Its not always been this way, in fact in large measure, prior to the early 1990’s, there was only one other international attempt to use the rule of law to hold accountable those who would use murder and terror as a national policy. That early attempt at Nuremberg laid the cornerstone for today’s tribunals and mankind’s attempts to reign in the beast.

These tribunals range from the domestic court in Iraq that found Saddam Hussein guilty of crimes against humanity, to the ad hoc tribunals for Rwanda and Yugoslavia, to the various other hybrids and internationalized domestic courts, as well as the International Criminal Court. This modern system has been in existence for only thirteen years. It is just the beginning, but it is a beginning and we should take heart in the fact that in most instances we are doing something to face down the beast of impunity as it nibbles around the edges of civilization.

We should take this small moment of justice and resolve to move the concept of international justice forward in a consistent way that returns the respect of the law missing in areas where atrocity has happened. If we can show victims that the law is fair, that no one is above the law, and that the rule of law is more powerful than the rule of the gun, we will begin to develop a seedbed from which freedom and justice will grow. The system of tribunals and courts will greatly assist in this effort. The global community must remain focused.

So what are we to make of the judgment that took place in Iraq this past Sunday? In general we see that one of the most powerful leaders in the Middle East, and a mega-murderer, was humbled before the law. We see that justice provides the victims some type of reconciliation and a factual accounting for what took place to their families, friends, villages, and towns. We see that the rule of law can be used to seek justice in a part of the world where the concept of justice has been strained indeed. In short, a leader who controlled and influenced the lives of millions throughout the Middle East, whose policies caused the murder, rape, and torture of millions, and destabilized an entire region of the world was held accountable for those policies and criminal acts.

It is important to note that the domestic court that tried Hussein for the Dujail incident was born of controversy which will forever taint the result. One must ask the question, but for the United States would the trial itself have taken place? Depending how you view the question this could be a positive or a negative. Accountability had to take place in Iraq. Hussein had to be tried for what he had done along with his regime. The effort by the United States to set up the Iraqi High Tribunal, along with its Iraqi counterparts, and its hard work behind the scenes to ensure some stability in the court room, must be acknowledged. Yet it is that effort that has tainted the Iraqi High Tribunal. How so?

First, the United States has lately adopted a “go it alone policy” when it comes to international justice. Second, it's taken a “you are either with us or against us” approach to the ideological struggle in what should be mankind’s confronting of international terror. Third, the United States has used methods of combating terror such as torture and unaccounted-for detention, and has invoked a type of amnesty for war crimes that US citizens might have committed in this fight. Fourth, it has used a shoddy rationale to invade a sovereign state in what arguably was an aggressive act of war. Because the United States is so closely aligned with the Iraqi High Tribunal, its loss of the moral high ground has weakened the Tribunal's efforts to seek justice in Iraq.

In some ways the United States has used the very tactics for which we hold others accountable. This overshadows the result last Sunday and clouds the slow, awkward, but steady movement forward by the global community to establish a system of international justice for the 21st century and beyond. History will show that this effort in Iraq was a tragic sideshow by the world’s only superpower, a power that had lost its moral compass. Though some of the results sought in Iraq - the downfall of Hussein and his subsequent trial - are noteworthy, the debacle of the Iraq occupation will be marked as a low point in the history of the United States. Aggressive war under the guise of the rule of law is a dangerous path that distracts from attempts to hold accountable those who chose to commit atrocity. In many ways, the United States has moved the concept of international justice backwards to a time where the desire for some type of peace and political stability absolved those who committed crimes against humanity. This “get along to get along” approach so prevalent in the 20th century helped set the stage for atrocities that resulted in the deaths and ruin of millions. This cannot stand and what the United States is attempting to do with the concept of international justice only weakens this noble cause.

There has been an accounting in Iraq for what Saddam Hussein and his regime did to his own people, as well as others. We should take some small sense of pride that mankind now expects that those who commit atrocity will generally be held accountable, though politics will always play the determining role in whether the global community decides to act. It may be imperfect justice, but it is justice. Mankind needs to keep moving forward. Wherever the beast of impunity rears its ugly head, it must be faced down. We’re developing the legal tools to do so. Holding accountable Hussein, Milosevic, Taylor, and others shows that it is a new dawn, still a bit cloudy but the brightness of a new day under the rule of law is predicted.


David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the UN Special Court for Sierra Leone (2002-2005). He is a former paratrooper and judge advocate who helped develop and teach the US Department of Defense Law of War Program for almost 20 years

Yes, iteresting, no? I have mixed feeling about it, just because of the way it happened, and all the hypocricy of the situation... I just heard today that they must hang him by the end of January...

i heard it too , but i thing and i hope at
least the wont hang him.. we all no that inhuman things he did but its not the best for that region to hang him .....the irakis must learn the other way of justice is my opinion....



Regards

I agree Pegasus, this would be a perfect opportunity for the Iraqis to show that they are better than him. To show that they want a better way and justice system, and show it to their people. NTM life in prison is worse than death anyway IMO...

Great thread, Der Krieger, thank you very much for providing us with these articles!

:friendship: