SADDAM'S VERDICT: NO MINOR VICTORY
by Hassan Mneimneh
Benador Associates
November 5, 2006

With its guilty verdict and death sentence for the former Iraqi dictator Saddam Husayn, the Iraqi Special Tribunal has set a crucial legal precedent. Its international implications go far beyond Iraq: No absolute power and no manipulation of the legal and judiciary structures exempt a ruler from the responsibility of safeguarding the life and dignity of the innocent.

The Dujayl case, for which the recent guilty verdict was issued, may appear to be an odd choice for a first judiciary condemnation of the Saddam regime. The allegations, proven to the satisfaction of the five-judge panel, were that Saddam had authorized, without due process, the execution of 148 Iraqi citizens in the aftermath of an assassination attempt against him. This number pales in comparison with daily count of casualties suffered by Iraqi society during Saddam's regime. Against the background of the inability of both Iraqi and American authorities to stop the bloodletting, the Special Tribunal has affirmed the principle that government, and officials in government, are accountable for every life.

As the dictator of Iraq, Saddam Husayn had endowed himself with absolute powers over state and society, reserving to himself and to his "Revolutionary Command Council" all legislative, executive, and judiciary authority, and further endowing himself with absolute immunity in the exercise of these powers. It is in this context that Saddam and his defense team have attempted to dismiss the competence of the Special Tribunal, denouncing its application of a hybrid set of legal principles in the trial of the dictator and his associates. However, by carrying the proceedings to their conclusion, the Special Tribunal has affirmed the supremacy of international norms in human rights over schemes to bypass and/or subvert them by a government in power.

The Dujayl case trial has been marred with serious flaws, including procedural irregularities and political intervention. Furthermore, adequate protection was not provided to the defense team; three defense lawyers were assassinated. These flaws need to be addressed and redressed in the subsequent trials that Saddam and his associates are slated to face. Even in this first exercise, however, these flaws do not affect the merits of the case.

At the onset of the judicial action taken against him, it was expected that five defense lines would be available to Saddam: his lawyers were expected to (1) question the legitimacy, competence, and jurisdiction of the court, (2) contest the fairness of the procedural arrangements, (3) challenge the veracity of the facts and the validity of the charges, (4) dispute Saddam's responsibility in their commission, and, if forced to concede, (5) argue that his actions were justified by law and/or national interest. The unfolding of the Dujayl trial has forced a successive retreat on the part of the Saddam defense team: with the documentary and testimonial evidence presented, including Saddam's signed confirmation of the execution order of the 148 citizens, the basic facts were no longer in dispute. The blatant nature of the brutal repression denied Saddam and his team any effective use of arguments of "national interest".

For the sake of unblemished justice, it is imperative to demand that any and all procedural issues be resolved. However, it should also be recognized that the Special Tribunal is performing in the midst of a conflict, and against the backdrop of more than three decades of subversion of the judiciary. It is to the credit of the Iraqi officers of this court that they have succeeded in carrying through this difficult trial.

Unlike his Romanian counterpart Nikolai Ceausescu, and unlike his many opponents and challengers caught by his regime, Saddam Husayn was not subjected to the swift "justice" of a revolutionary court. Instead, he was offered, and will further be offered, the opportunity to face his accusers, and face up to his alleged crimes. This is an opportunity for Iraqi society to develop a renewed respect for the rule of law, after more than a generation of witnessing it being ignored by Saddam and his regime. It is also an opportunity for Iraqi society to explore the depth of its tragedy, as well as individual and collective responsibility in it.

Some in Iraq and beyond may consider the death penalty a well-deserved punishment for the brutal crimes endured by Iraqis under the Saddam regime. Others may argue that a break with the oppressive past might necessitate an indefinite moratorium on capital punishment. Iraqi society will also have to tackle the potential spills from this verdict into sectarian strife. In the midst of the daily accounts of horror stemming from Iraq, what the Special Tribunal has accomplished in holding the dictator and his regime responsible is no minor success for Iraq and the world.

Hassan Mneimneh is the Washington DC Director of the Iraq Memory Foundation, an organization dedicated to reflection on Iraq's totalitarian past. He is a member of Benador Associates.

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