[R-G] Occupier’s “Justice”: The Trial of Saddam Hussein

[Anthony Fenton]

http://www.dissidentvoice.org/2008/12/occupiers-justice/

Occupier’s “Justice”: The Trial of Saddam Hussein

by Kim Petersen / December 17th, 2008

The Trial of Saddam Hussein
By Dr. Abdul-Haq Al-Ani
Paperback: 421 pages
Publisher: Clarity Press (May 1, 2008)
ISBN-10: 0932863582
ISBN-13: 978-0932863584

Spurred by his abhorrence of imperialism and to better equip himself,  
Abdul-Haq Al-Ani studied law in Britain. The barrister then applied  
his knowledge to become, temporarily, part of Saddam Hussein’s  
defense team and to write The Trial of Saddam Hussein, and even though  
the book profoundly, cogently, and — on its face — irrefutably  
exposes the injustice of the trial of Iraqi President Saddam Hussein  
and his co-defendants, it exposes much, much more.

Al-Ani’s analysis of the trial of Hussein is based in a system of  
entrenched injustice imposed by the imperialist, occidental world. For  
the imperialist system, with collaborationist Iraqis, was not conjured  
into existence to “try” and condemn Hussein. Al-Ani describes an  
extant, hypocritical system wherein law applies to the victims of  
imperialists, but imperialists hold themselves above the law. “A  
state cannot operate internationally and rely on international law and  
the UN, but still be able to excuse itself from being bound by  
whatever it chooses to reject. This is an unsustainable argument,”  
reasons Al-Ani.

The United States is a testament to how preponderent prowess in  
violence sets a “nation” beyond the reach of the law.1 The United  
States of America is built upon the denationalization of the Original  
Peoples and a subsequent colonization by the genocidaires. Yet the US  
government has never apologized to its victims, recompensed them, or  
atoned for its malevolence.2 This is the historical baggage carried by  
the US.

So, historically, any claim to moral authority by the US (that is,  
being a self-proclaimed beacon on the hill, a human rights leader, or  
a leader of the free world, etc.), in an effort to bolster or garner  
legitimacy for its “adventurism” abroad, is preposterous and  
nugatory.

Al-Ani details the illegality that underlies the invasion of Iraq — a  
prima facie “supreme international crime” so reprehensible that the  
Nuremburg Tribunal said it differs from other war crimes in that “it  
contains within itself the accumulated evil of the whole.”

The barrister accuses the US-UK of genocide. The genocide dates back  
to at least 1991 when the US formed a coalition to oust Hussein’s  
invasion force from Kuwait, a state whose borders are an imperialist  
creation and, therefore, according to Al-Ani, violable. Ergo, the  
invasion of Kuwait was caused by British imperialists.

Al-Ani gives an Arab perspective on the Ba’ath Party (divulging that  
he is a former member) and its importance to the citizens of Iraq and  
wider afield in the Middle East. The party captured the nationalist  
aspirations of the people and attracted those people opposed to the  
imperialist-Zionist usurpation of Palestine.

As for life under the rule of Saddam Hussein, Al-Ani asserts that  
Iraqis were safe as long as they did not cross the “red line”; that  
is, they did not act or conspire against the Ba’ath Party or state.

Al-Ani does not focus on whether Hussein was a good man or bad man. He  
is focused on adherence to the norms of law and justice. Hussein does  
receive criticism, however, especially for his “calamitous  
miscalculation” to attack Iran — a “gift to imperialism.” I  
wonder what Al-Ani would say if someone wrote that same words to  
describe the attack of Iraq?

Al-Ani situates in time. He presents a picture of a thriving Iraq in  
1991: a surfeit of electricity; clean, well, equipped hospitals and  
clinics free to all Iraqis; clean water; no illiteracy; free education  
from elementary school right through graduate school; home-based  
industries; a good highway system; and a real estate bank to provide  
low-interest loans for low-income families (wiped out by Paul Bremer).  
Compare this to Iraq today where the electric grid still has not been  
fully restored.3

What permits such carnage and destruction? Al-Ani sees an inability to  
recognize and embrace diversity. Eurocentrism,4 he posits, holds sway;  
law that thwarts imperialists can be swatted aside while the same law  
can be bent to damn the defiers of imperialists. The Trial of Saddam  
Hussein gives poignant examples of Eurocentrism: from the United  
Nations Charter and delegation of powers between the General Assembly  
and the Security Council, drawing of international borders,  
international law and its application, to the arrogation of the right  
to breach the borders of sovereign nations. What gives Westerners the  
right to disarm Iraq? Al-Ani compares, “Equally perplexing for the  
Muslim jurist is that Isreal is rewarded with new weapons and  
financial backing following the invasion of Lebanon [in 2006] while  
Iraq is decimated following its invasion of Kuwait.”

Militaristically inclined types proffer that a so-called humanitarian  
intervention can justify the violation of national sovereignty. Here  
Al-Ani sides with law professor Francis Boyle who described  
humanitarian intervention as “a joke and a fraud.” Obviously, for  
humanitarian interventions to have any moral or legal legitimacy, they  
must not be capricious nor unilateral; otherwise, they can function  
criminally as pretexts for imperialism.

Surely no one would suggest there was anything humanitarian in the  
annihilation of Fallujah. Here again Eurocentrism is exposed. After  
all, how would Occidentals respond if a Christian or Jewish town in  
the West were obliterated?

International Law

Al-Ani sees two legitimate sources of international law: the United  
Nations General Assembly and treaties. He has scorn for the  
International Criminal Court (ICC) for reasons such as its Article 16,  
which defers to the Security Council, undermining ICC independence and  
making it a “judicial tool of imperialism” as well as its inability  
to agree on a definition for the crime of aggression. Al-Ani does not  
mince words when he notes “the great silence of the jurists of the  
Anglo-Saxon world, which almost amounts to an acquiescence in the  
crimes” of aggression.

The invasion was illegal under the UN Charter. Al-Ani argues that  
since Iraq was not a threat to peace, it would have been impossible to  
invoke a resolution of attack against it. It violates the raison  
d’être of the organization. Nevertheless, the UN Security Council  
passed Resolution 1472 which instead of condemning the attack remained  
seized of the matter — pointing, according to Al-Ani, to the futility  
and incompetence of the UN, an understandable view given what has  
transpired.

Arresting Saddam Hussein

Al-Ani notes, “It is ironic that the US/UK intended to try top Iraqi  
officials for crimes of stipulated Iraqi laws while at the same  
refusing to accept the jurisdiction of the prevailing Iraqi law.”

He observes that Article 131 of the 2005 Iraqi Constitution calling  
for the continuation of the Tribunal was without legitimate legal  
force since it was implemented under occupation. Consequently, there  
was no legal jurisdiction for trying Saddam Hussein. Among the  
problems with the arrest of Saddam Hussein:

     * a head-of-state does not lose authority at hands of occupier;
     * a head-of-state has legal immunity; and
     * Hussein could not be classified as a POW.

The Iraqi High Tribunal

Among the problems Al-Ani finds with the Iraqi High Tribunal:

     * De-Ba’athication (an act which constitutes a crime against  
humanity according to the ICC’s Article 7) removed all Ba’athist  
judges in Iraq, yet Article 43 of the Hague Convention forbids this.
     * What process was used to select judges? Who were the judges?  
The anonymous judges were secretly trained in Britain. Al-Ani asks,  
“[W]hy should an Iraqi tribunal with allegedly Iraqi judges and  
operating under Iraqi law be trained by private contractors who have  
no knowledge of Iraqi law?”
     * Judicial independence: the Iraqi Special Tribunal, later  
renamed the Iraqi High Tribunal (IHT), was clearly set up by the  
occupiers. Al-Ani argues that the trial was completely controlled by  
the US through the Regime Crimes Liaison Office (RCLO) set up by the  
US Department of Justice and funded by the US Congress.
     * Preventing international lawyers to aid Hussein’s defense —  
a violation of the legal concept Equality of Arms: “The right of the  
accused to legal counsel is so universal that it is difficult to see  
how a court would admit evidence secured when the accused was not in  
receipt of legal advice.”
     * Security for the defense: defense lawyers were murdered, forced  
to flee Iraq, and intimidated; so-called Human Rights Watch (HRW)  
admitted as much.
     * Defense and witnesses faced the possibility of civil suits for  
actions and words in court.
     * The collapse in security made finding willing defense witnesses  
difficult: “The inequality between the blanket anonymity granted to  
the prosecution witnesses and the exposure of the identity of one  
potential defense witness clearly demonstrates the inequality of  
arms.”
     * Defendants were prevented the right to private and confidential  
legal counsel.
     * Switching chief justices; the International Center for  
Transitional Justice (ICTJ) charged that this was a “blatant attack  
on the independence of the judiciary.”
     * The court-appointed defense’s performance was “poor”; they  
turned down right to cross examine witnesses often or were denied  
cross-examination by the court.
     * Important evidence was withheld from the trial and defense.
     * It was seven months into trial before charges were formally  
laid against Hussein and co-defendants.
     * Overt judicial bias: hearsay admitted; court relied on witness  
testimony when documentary evidence was available; transmission of  
defendant’s spoken words was cut off during trial; the court refused  
to respond to defense requests.
     * Closing the defense’s case summarily.
     * The appeal process was a mockery: 30 days to present an appeal,  
and no right to challenge the legality of the IHT whose statute Al-Ani  
finds riddled with errors and flagrant grammatical mistakes,  
indicating that it was a translation from English. Al-Ani wonders why  
HRW and the ICTJ did not complain.

Why Dujail?

The Tribunal made events occuring in the town of Dujail, a stronghold  
of the Iranian-backed Da’wah Party, the first case to be tried  
against Saddam Hussein and his top officials. In 1982, assassins from  
Dujail ambushed Hussein’s motorcade. Hussein was accused afterwards  
of ordering a crackdown in which 148 of the town’s men were sentenced  
and executed. It is not the most heinous crime alleged of Hussein, yet  
that is where the Tribunal began and ended.

Al-Ani writes that the perpetrators involved in the assassination  
admitted to acting on orders from Iran, a treasonous act during war,  
which then raged between Iraq and Iran. He sees no relevance of Geneva  
Conventions to the Dujail case. Yet, even some western-based  
progressivist writers and corporate media critics were quick to share  
the corporate media line on Hussein’s guilt over events at Dujail.5

Even though during the trial, Hussein had accepted sole responsibility  
for the killings at Dujail, the IHT was hard-pressed to support its  
verdict. The ICTJ wrote, “The Dujail verdict was delivered in a 40- 
minute session that gave little indication of the judgment’s detail  
and reasoning.”6

Nonetheless, “Even if Saddam Hussein accepted responsibilty and knew  
of the punishments the culprits were likely to and did incur,  
including death by hanging, it does not make him anymore of a criminal  
than Governor George Bush signing the death warrants of criminals in  
Texas, some of whom turned out to be innocent…” Also, an admission  
itself was insufficient to convict since, Al-Ani argues, evidence of  
the wrongdoing by the Revolutionary Guard and demonstrating Hussein’s  
knowledge of this was a necessary condition.

Al-Ani concludes that the Tribunal failed to establish that Hussein  
was criminally responsible for Dujail. Of the judgment, Al-Ani finds,  
“It is difficult to resist the conclusion that the judgment was  
written in English by the US/UK legal advisors in the RCLO in exactly  
the same way the defense was written by an appointee of the RCLO and  
translated into Arabic.”

He criticizes HRW, which “after spending months observing the trial,  
did not arrive at the only conclusion possible, namely that the  
Tribunal and those who served in it had been chosen because they were  
convinced of the guilt of the accused …”

“The most bizarre thing about this trial is that the accused were  
sentenced to death before the court argued the reasons for it in its  
judgment.” An appeal by the defense was rejected.

Of the appeal judgment, Al-Ani says, “[T]he lack of a single piece of  
evidence being identified to support its judgment, the  
misunderstanding of the principles of international law and the total  
indifference to the principles of justice that transcend all laws,  
international and domestic. These all demonstrate the incompetence of  
the IHT and a total failure of justice.” Thus had the US-UK obtained  
a “victor’s justice by proxy.”

Saddam Hussein was sentenced to hanging. Al-Ani objects that the basis  
for carrying out a death sentence was flimsy and illegitimate;  
moreover, it was disrespectfully pushed through on a Sunni holy day  
“with the connivance of an illegal occupying entity.”

Al-Ani finds “the sole contribution of the Tribunal is that it sets a  
precedent for trying other heads of state who challenge US  
supremacy…” He considers George W. Bush and Tony Blair the most  
obvious candidates to be tried under this precedent. Instead the ICC  
is pursuing prosecution of a sitting head-of-state in Sudan, which has  
aggressed no other country.7 Eurocentrism?

The Trial of Saddam Hussein is densely packed with legal arguments  
(though eminently readable and comprehensible) and fastidious  
conclusions, and a simple book review cannot do justice to the  
plethora of rationales that Al-Ani provides. At this time of year, if  
Christmas means anything about peace on Earth and good will towards  
fellow humans, then read The Trial of Saddam Hussein by Al-Ani, and  
become active in the antiwar and social justice movements.

    1. See International Justice and Impunity: The Case of the United  
States Edited by Nils Andersson, Daniel Iagolnitzer, and Diana G.  
Collier (Clarity Press, 2008). Review. [↩]
    2. The same holds true for colonialist governments throughout the  
western hemisphere. [↩]
    3. “Still no electricity surge,” Realnews.com, 15 December  
2008. [↩]
    4. Applied loosely, the rationale being that Americans and other  
Westerners stem from European colonial stock. [↩]
    5. E.g., see Norman Solomon, “Rumsfeld’s Handshake Deal With  
Saddam: History Out of Media Bounds,” Dissident Voice, 10 December  
2005. [↩]
    6. Briefing paper, Dujail: Trial and Error?” International Center  
for Transitional Justice, November 2006. [↩]
    7. Davion C. Ford, “Is the ICC jeopardizing peace in Sudan?”  
Radio Netherlands Worldwide, 19 November 2008. [↩]

Kim Petersen is co-editor of Dissident Voice. He can be reached at: kim at dissidentvoice.org 
. Read other articles by Kim.