Saddam’s Execution Likely, Fair Trial Less So - 06.27.2006

Brian Conley and Omar Abdullah*

BAGHDAD, Jun 26 (IPS) - The trial of Iraq’s former president Saddam Hussein has been wracked with controversy and spectacle. Now entering its final phase, the question for all Iraqis and the world is whether he will be executed for the deaths of 148 Shiites, killed in Dujail in 1982, as requested by prosecutors.

Perhaps the better question is how Saddam’s execution will help Iraq move forward.

In the past, “The rule of the gun was more powerful than the rule of law in Iraq,” wrote David Crane in ‘The Jurist,’ a web-based legal news service, earlier this year.

“Saddam’s trial could reverse this and begin a process whereby the Iraqi people will begin to respect the rule of law. Get it wrong and the fledgling democracy that is the new Iraq is in trouble,” he added.

In fact, many Iraqis see too many similarities between Saddam’s trial and that of other former Iraqi government officials: the allies of Prime Minister Nuri al-Said and Crown Prince Abdul-Ilah.

In 1958, after Abdul Karim Qasem’s forces overthrew the monarchy, he established a court to try ministers and members of the army who collaborated with Britain and the king. This court, known as the al-Mahdawi Court, essentially conducted show trials, say lawyers and historians.

“It was just a kind of comedy or theatre for these people. They judged the leaders of the regime, but at least it was a national, Iraqi court,” a member of the Iraqi Lawyers Association told IPS. This attorney, who refused to give his name out of fear for his family, met with IPS in Amman, Jordan.

Like the trials by the al-Mahdawi Court, Saddam’s trial, too, seems to reflect theatre more than jurisprudence, Muhammad Tareq, director of the Monitoring Human Rights in Iraq network, told IPS.

“These two courts were both established by the enemies of the previous regime. They are not independent. What is the difference? Mahdawi pushed for execution, the same with (this) new trial,” Tareq said. “We must establish an independent committee to bring all the evidence out and move toward a real democracy.”

The new Supreme Iraqi Criminal Tribunal (SICT) was established to try Saddam Hussein, and civil society groups have said it has some disturbing similarities to the al-Mahdawi Court, and it is difficult to perceive fairness due to these similarities.

“Two of the crimes listed in Article 16 appear to have their origins in the military tribunal after the 1958 revolution. This tribunal, known as the Mahdawi Court, conducted overtly political trials, more concerned with discrediting the monarchy than with establishing the guilt or innocence of the accused. It is troubling that these offences have been included in the substantive jurisdiction of the SICT,” says Human Rights Watch in an October 2005 briefing paper.

Saleh Mutlaq, head of the Iraqi Front for National Dialogue, the second largest Sunni party in Iraq’s parliament, also questioned the veracity of the court, suggesting that Saddam should have been tried in an international tribunal.

“We do not think this government is fair or this judge and this court are fair. The best thing is to take Saddam outside Iraq and question him in a respectable court, then he will get what he should get. Questioning Saddam in this way is an insult for the Iraqis and it is an insult to the law in Iraq,” he told IPS in Amman.

In addition, Mutlaq and others said the Iraqi governing council should have appointed non-Iraqi judges with experience in these types of tribunals, as allowed by Iraqi statutes.

It is difficult to understand why even this small concession was not made to provide the trial greater legitimacy in the international community, observers said. Were the trial to employ Iraqi prosecutors and investigators, as well as internationally recognised justices, its impartiality would be much harder to assail, Mutlaq said.

Throughout the trial, Iraqis and other Arabs throughout the Middle East have been glued to their televisions, radios, and even computers for the latest updates. Early on, Saddam and his half-brother Barzan Ibrahim made repeated outbursts, some of which made it to the international press.

Much of the excitement and spectacle in the trial has been reported only to the Arab world. When four defence witnesses testified that at least some of the 148 in question were still alive, for instance, judge Raouf Abdel-Rahman had them arrested.

Other, more sobering, news has made the world press. To date, three defence lawyers have been assassinated. The remaining jurists live in Amman and fly to Iraq only for the trial. The Iraqi government will not even provide the first name of the prosecuting attorney who presented its side of the closing arguments.

Non-governmental organisations and anti-death penalty activists have come out to oppose the capital punishment for Saddam, but have focused mainly on the egregious issues surrounding his trial.

An influential Vatican official, Cardinal Paul Poupard, has asked those sentencing Saddam Hussein to abstain from the death penalty. “No one can consider himself the proprietor of another’s life and death, except the Creator,” he told a Catholic web site.

Marco Cappato, a member of the European Parliament for Italy’s Rosa nel Pugno party, called on the Iraqi government not to kill Saddam.

“The crimes Saddam Hussein is charged with are extremely serious. The answer, though, lies not in capital punishment,” he said in a released statement.

“Those who, like Saddam Hussein and like Slobodan Milosevic and Charles Taylor, denied their own people the right to exist, still have a right to a fair trial, preferably one conducted under international jurisdiction: a trial that ‘brings to justice’ whilst fully respecting the rights of the accused and without resorting to the death penalty,” he said.

Saleh Mutlaq disagreed, saying that if Saddam is guilty of the charges, then he should be put to death. However, Mutlaq added he would only support such a sentence from a legitimate court.

On July 10, the defence will present its closing arguments, but the world now is preparing itself for the eventual outcome of Saddam’s trial.

If Saddam is condemned to die, the Kurds hope his sentence will be postponed until they can prosecute him for crimes committed in their region. If events up until now are any measure, Arabs can be expected to continue to tune into the trial in large numbers.

Iraqis such as Abu Salih, whose brother was killed by the Saddam government in 1992, are looking forward to the day when the former president is executed. “I want him to die just like he killed my brother, and I think this is justice because if a man kills anyone that man deserves to die.”

Perhaps many in the world hope for a third way, where justice will be served without adding Saddam to Iraq’s body count.


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