Sherwood Ross: Hanging Hussein Without Fair Trial

Hanging deposed dictator Saddam Hussein after a seriously flawed trial, one in which he was denied due process, could provoke an apocalyptic firestorm by his followers.

Above all else, the Iraqi High Tribunal(IHT) needed to conduct a trial that was a model of impartial jurisprudence. Instead, international observers found it riddled with errors. And IHT’s verdict of hanging with no appeal smacks more of revenge than justice.

Nehal Bhuta of Human Rights Watch(HRW), termed the proceedings “fundamentally unfair.” Asked why Washington chose to have Hussein tried in Iraq in the first place, Bhuta said the U.S. had “a real concern about embarrassing information” about USA’s “history and support for Hussein” that might have come to light before a world body.

There may be more to it than that, though. Trying Hussein before a world court could establish a precedent for trying President Bush before one. Some international legal scholars think that’s a pretty good idea.

Francis Boyle of the University of Illinois believes Bush’s policies “constitute ongoing criminal activity under well-recognized principles of both international law and U.S. domestic law, and in particular the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles.”

Hussein and two co-defendants were sentenced November 5th to death by hanging, four got stiff prison sentences, with one acquitted. The accused were charged with the reprisal executions of 148 men and boys in Dujail in 1982, after an alleged try on Hussein’s life.

When the verdict was announced, Miranda Sissons, of the International Center for Transitional Justice, told The New York Times: “This is not a sham trial. The judges are doing their best to try this case to an entirely new standard for Iraq.”

That may be, but HRW issued a 97-page report “Judging Dujail” exposing previously undocumented and “serious procedural flaws in the trial.” Among them:

# “Regular failure to disclose key evidence, including exculpatory evidence, to the defense in advance.”

# “Violations of the defendants’ basic fair trial right to confront witnesses against them.”

# “Lapses of judicial demeanor that undermined the apparent impartiality of the presiding judge.”

# “Important gaps in evidence that undermine the persuasiveness of the prosecution case, and put in doubt whether all the elements of the crimes charged were established.”
HRW blasted the lack of “the right to be presumed innocent;” the right to be promptly informed of charges; the right to adequate time and facilities to prepare a defense; and “the right to examine witnesses against the accused.”

The HRW report also faulted IHT and the U.S. occupation authorities for not providing adequate security. At least five persons working for the court, including an investigative judge and the chief of security, were killed even before the trial opened.

“Up until the assassination (Oct. 20, 2005) of (Sa’doun) al-Janabi, the lawyer for defendant Awwad al-Bandar, neither the court administration nor the (U.S. Embassy) appears to have developed specific proposals to ensure the security of defense counsel,” HRW said.

Defense lawyers complained the salaries of the armed guards hired to protect them were never paid. But when they tried to buy gun licenses, they were given a hard time.

HRW said given the deficient state of justice under the Hussein regime, it was doubtful legal machinery could be established to provide a fair trial. HRW claimed the five-member judicial panel was under substantial pressure from political figures to convict.

As for the mandatory application of the death penalty without any opportunity for clemency, pardon, or commutation, HRW said this violates international legal statutes.

What’s more, since the Iraqi constitution requires the President to ratify death sentences, the court’s prohibition of amnesty “appears to infringe upon the constitutional authority of the president,” HRW said.

Given the escalating, bloody civil war in Iraq, the last thing needed was a flawed trial of the deposed head of state liable to inflame his partisans. In the ever lengthening list of crimes and sorrows perpetrated by George Bush, the unjust trial of Saddam Hussein before an ill-prepared panel subject to intense political pressure to convict will rank among his most strategic blunders.

(Sherwood Ross is an American reporter. Contact him at sherwoodr1 @ yahoo.com)

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