The Trial of Saddam Hussein
The New York Times on Saddam's trial:
One of the best ways to repair such a damaged society is a systematic judicial investigation of the old regime's crimes. That should be followed by a scrupulously fair trial ... In the case of Iraq, where legal training and appointments had been bent for decades ... that should have called for enlisting help from international legal experts and using relevant precedents in international criminal law. The Bush administration and its Iraqi allies strongly opposed that step because it would have excluded the death penalty.
... this prosecution would have been conducted differently if it were a serious attempt to uncover the murky lines of authority and responsibility within the Baathist regime and establish Mr. Hussein's clear personal responsibility for at least some of the roughly 300,000 murders committed in his name. It would have built up its case methodically, from the field operatives carrying out the killings to the officials who gave them their orders and on up the chain of command to Mr. Hussein himself.
Human Rights Watch on Saddam's trial:
The “Iraqi Special Tribunal for Crimes Against Humanity” (Iraqi Special Tribunal) was created by the Iraqi Governing Council in December 2003. It is fundamentally different than the Special Court for Sierra Leone, discussed above. The SCSL was established by joint agreement between the government of Sierra Leone and the United Nations, while the Iraqi Governing Council established the Iraqi Special Tribunal under an occupation and without participation by the United Nations.
The Iraqi Special Tribunal does not provide for Iraqi and international judges and prosecutors to work together to try cases. Instead, all prosecutors and investigative judges are required to be Iraqi nationals. The law allows for the possibility of appointing non-Iraqi trial and appeals chamber judges, but only if the Iraqi Governing Council approves. The Iraqi Special Tribunal law also provides for some international advisors and monitors, but this is not comparable to appointing international judges and prosecutors with relevant expertise to work alongside Iraqi jurists.
The procedures for trials provided for in the Iraqi Special Tribunal law also have numerous problems. There is no requirement of proof beyond a reasonable doubt and the death penalty is permitted. The 1971 Iraqi criminal procedure law could be used, permitting the tribunal to use confessions obtained through “physical coercion” and to hold closed trials. ...
Iraqi jurists and international specialists should work together to recommend the most appropriate form of a tribunal to try the most serious past crimes committed in Iraq. Human Rights Watch has recommended that the Iraqi Governing Council partner with the United Nations to form a mixed Iraqi-international Group of Experts. A mixed Group of Experts would allow Iraqi jurists to use existing international experience to develop a tribunal that will operate fairly and effectively.
The World Socialist Website on Saddam's trial:
The decision announced July 17 to file the first charges against deposed Iraqi president Saddam Hussein has set the stage for what can only be called a political show trial later in the year. Confronting deep popular hostility and fierce armed resistance, US authorities and the puppet regime headed by Prime Minister Ibrahim al-Jafaari have decided to put Hussein on trial in a bid to both cow public opposition and garner support from sections of the Shiite and Kurdish communities that suffered most under the Baathist dictatorship.
So blatant are the political machinations that the New York Times reported: “The tribunal officials said they had faced a swirl of pressures that have been more overtly political. Some government officials, they say, have been insistent that Mr. Hussein face trial before elections scheduled for December in which Iraqis are to vote for a full, five-year government. Their assumption, the tribunal officials say, has been that a detailed recounting of Mr. Hussein’s atrocities in court will consolidate popular support behind the Shiite and Kurdish leaders, and isolate Sunni Arab hardliners.”
Raeed Juhi, the 35-year-old judge handpicked for the task, told the media that Hussein would be tried over the 1982 massacre of more than 150 people in the Shiite village of Dujail. Juhi is the chief investigative judge for the Iraqi Special Tribunal established in December 2003 by US occupation authorities following the capture of the former Iraqi president. If found guilty, Hussein faces the death penalty.
(Speculation alert) The problem, of course, is that it is not just Saddam who is on trial. An historical background on the Nuremberg Trials describes the approach taken by the principal investigator with respect to the Nazi offenses, which were no ordinary crimes, even though individual criminals were before the court. Lt. Colonel Murray C. Bernays emphasized that the Nazi offenses were fundamentally a conspiracy; a conspiracy based on a perverted ideology. He was determined to put not only the surviving Nazi leadership, but their entire Party; its words and its actions on trial.
In July, 1944, with evidence of Nazi atrocities, not only against European Jews but also against Allied prisoners of war, the U.S. Office of the Chief of Staff appointed Lt. Colonel Murray C. Bernays to head up the investigation on Nazi war crimes against U.S. servicemen. Bernays, a naturalized American Jew of Lithuanian origin, and a graduate of Harvard Law School, was practicing law in New York at the time of his appointment. A brilliant lawyer and meticulous investigator, he began the task of collecting information.
Very early in the process, it became evident to Bernays that it would not be enough to try specific individuals for specific offenses. In his view, it would be a travesty of justice to try individual Nazis and leave the Nazi movement out of which they emerged unpunished. Accordingly, Bernays began looking for a philosophical and theoretical rationale for unmasking the bestiality of the Nazi plan and program as well as its implementation through the instrumentality of accused war criminals. ... Lemkin had argued that organizations like the SS were criminal conspiracies. In that context, the murder of 6 million Jews and nearly 6 million additional civilians by the Nazi government could be viewed as a monstrous conspiracy against humanity -- a conspiracy based upon the doctrine of racial purity.
There may be valid technical criticisms of Saddam's coming trial. But attitudes toward the trial are colored by the extent to which parties feel themselves philosophically in the dock with him. Some in the direct sense, as his accomplices; others as his hirelings; still others implicated indirectly as the Men of Munich were, the enablers of evil by omission. For too many Saddam's trial must never be the day of judgment.
It's not widely remembered that there two plans for de-Nazifying Germany. Both approaches were intended to "send a message". The first was the so-called Morgenthau Plan, named after American Treasury Secretary Henry Morgenthau, Jr., which involved neutering Germany for decades. (It's ironic how Germans were once regarded as incapable of democratic self-government.)
Roosevelt's motivations for agreeing to Morgenthau's proposal may be attributed to his desire to be on good terms with Stalin and to a personal conviction that Germany must be treated harshly. In an August 26, 1944 letter to Wilhelmina of the Netherlands, Roosevelt wrote that "There are two schools of thought, those who would be altruistic in regard to the Germans, hoping by loving kindness to make them Christians again - and those who would adopt a much 'tougher' attitude. Most decidedly I belong to the latter school, for though I am not bloodthirsty, I want the Germans to know that this time at least they have definitely lost the war." ... At the Tehran Conference in late 1943 Stalin had proposed that at least 50,000 and perhaps 100,000 German officers should be liquidated. ... (US Department of State, The Conference at Cairo and Tehran, 1943 (Washington: 1961) p. 602).
The plan was eventually rejected, in part through the opposition of Anthony Eden, and after considering the humanitarian disaster it would cause. The fallback method for de-Nazification were the Nuremberg Trials.
The demise of the Morgenthau Plan created the need for an alternative method of dealing with the Nazi leadership. The plan for the “Trial of European War Criminals” was drafted by Secretary of War Henry L. Stimson and his War Department. When Roosevelt died in 1945, Harry S. Truman gained the presidency and gave strong approval for a judicial process. After a series of negotiations with the Soviet Union, Britain, and France, details of the trial were worked out. The trials were set to commence on November 20th, 1945, in the city of Nuremberg.
Many faint echoes of that earlier debate will be present with Saddam in the courtroom.