The Illegal Trial of Saddam Hussein

By. E. G. Mueller. On Sunday, November 5th and Monday, November 6th many Iraqi cities were swept by demonstrations and protests against the death sentence pronounced against Iraqi President Saddam Hussein by an ostensibly Iraqi court in the so-called ad-Dujayl case.

The US and more broadly western liberal media havebeen so full of distortion and misinformation regarding Iraq and Saddam Hussein the first war against Iraq in 1990 that it’s difficult now for readers to separate fact from fiction, concrete reality from the fog of war propaganda.

The Iraqi President has been accused of all kinds of abuse, cruelty, and crime over the years. To be sure the Iraqi regime under Saddam Hussein, and indeed before Saddam Hussein, was brutally repressive of opposition and absolutely intolerant of any alternative political power bases that might arise, whether among religious leaders or political forces. It should be remembered that succession in Iraq after the Revolution in 1958 was almost always by the violent overthrow of the regime.

Indeed this has generally been the case throughout the region, except where kings, princes, and even presidents have handed authority peacefully to their sons. What was unique about Saddam Hussein was not that he brutally repressed opposition; what was unique was that he was willing to stand up to the Zionists and their alter-egos in Washington even if that meant the loss of his position – the one thing that the dictatorial kings, princes, and presidents who rule the countries in the region absolutely will not do.

It is worth noting that the acts of brutality of which Saddam Hussein has been accused have been treated by the mainstream media in different ways at different times depending on the alignment of political forces. This fact in itself reveals the political character of those accusations.

Since its invasion of Iraq, the US has ruled that country with unprecedented brutality as evidenced by the atrocities committed at Abu Ghuraib and the many other, less reported profile prison camps that dot the country. Saddam Hussein is denounced as a bloody dictator yet the United States is in fact engaged in a major program of building still more prisons because the facilities left by his regime are too few and inadequate to contain all those being arrested and detained by the US occupation authorities. Newspaper reports in May of 2005 indicated that the American occupation regime was building a facility in the southern Iraqi province of Dhi Qar that was to be the largest prison in the entire Middle East. If the Iraqi President is to stand trial for being repressive, it would appear that the US President who is not only in charge of the occupation of Iraq but presides over a word-wide network of secret prisons and torture chambers is even more culpable.

Since the Gulf War of 1990-91, the US media and US Presidents have accused Saddam Hussein of massacring the Kurdish population in Iraq with poisoned gas in the 1980s. Yet at the time the US government was sympathetic with Iraq in its war with Iran and it was the US, in fact, that supplied gas and other war materiel to the Iraqis.

On the issue of the gassing of the Kurds, Stephen C. Pelletiere, the US Central Intelligence Agency’s senior political analyst on Iraq during the Iran-Iraq war, and a professor at the Army War College from 1988 to 2000, wrote in The New York Times on January 31, 2003 that in the celebrated case at Halabjah – which was a battle between the Iraqi and Iranian armies in a largely Kurdish area of Iraq – both sides used poison gas. Pelletiere wrote: “The condition of the dead Kurds’ bodies, however, indicated they had been killed with a blood agent – that is, a cyanide-based gas – which Iran was known to use. The Iraqis, who are thought to have used mustard gas in the battle, are not known to have possessed blood agents at the time.”

Iraq is the “Cradle of Civilization” with the longest history of any country on earth. Volumes could be written on the social, cultural, religious, and political situation in Iraq and the background and circumstances of the US war there, but it’s important for us at this moment to take a look at what kind of “trial” it was that has gone so far as to sentence a head of state to death.

One of the first and most pertinent facts about the trial of Saddam Hussein is that it was held while the country is under foreign occupation. Articles 54 and 64 of the Fourth Geneva Convention stipulate that an occupying power may not “alter the status of public officials or judges in the occupied territories,” that “the penal laws of the occupied territories shall remain in force,” and that “no new penal laws may be issued.”

But after the US occupied Iraq in 2003, an act that was carried out without any United Nations authorization and consequently is also an illegal act of aggression, the US occupation authorities drew up an entirely new “constitution for Iraq” and enacted new laws, including the laws under which Saddam Hussein, still the legal President of Iraq under international law, was put on trial

Iraq, of course, had a constitution when the US, invaded but that was swept away by the American occupation authorities who brought in Noah Feldman, an otherwise obscure American Jewish Constitutional scholar, who also had a Ph.D. in Islamic studies, to draw up a new Constitution for Iraq – an act, as we’ve seen, itself in violation of international law.

What commended Feldman to the US occupation authorities such that they would empower him to draw up a fundamental law for Iraq? While one can only speculate what went on in the minds of the US administration, but here is a bit of Feldman’s background. He “distinguished himself as a Torah scholar” while at his Orthodox Jewish Day School Maimonides, according to Gabrielle Birkner of Moment Magazine. The Jewish Week described Feldman as a “former yeshiva bocher” in its August 5, 2005 issue, adding: “One moment he’s talking about Justice Sandra Day O’Connor, the other about former Israeli Sephardic Chief Rabbi Ovadia Yosef, spiraling into a spirited discussion of the [US] Constitution only to veer into halachic law a moment later. Both are cemented in his intellectual cortex . . . .”

Not only was a new constitution foisted on Iraq by authority of the occupying power, but the very laws under which Saddam Hussein and other Iraqi leaders were put on trial were also originally written and imposed by legal “experts” working for the US occupation authority, according to Anthony Dworkin’s Crimes of War Project, 22 October 2005.

Now let’s look at the “crime” for which the Iraqi President was brought to trial under a constitution and laws that were utterly alien to Iraqi society, and completely illegal under international law.

Saddam Hussein was convicted and sentenced to death on Sunday in what is known as the ad-Dujayl case of 1982. The current US-installed regime in Baghdad has other trials on going and in preparation for other issues such as the alleged gassing of Kurds. But on Sunday, the Iraqi President was not sentenced in relation to any issue other than the case of ad-Dujayl. That was a plot by pro-Iranian Shi’i Iraqis, members of the Shi’i fundamentalist Da’wah Party that was founded and based in Iran, The plot aimed at assassinating Saddam Hussein and overthrow the government during the time when Iraq was at war with Iran.

The plot was brought to fruition when assassins opened fire on the Iraqi President’s car in mid-1982. Gun battles took place in the area for several days after the assassination attempt as the pro-Iranian conspirators continued their effort to topple the government. As their fortunes began to fade, some of the plotters were seen fleeing to the Iranian border. It should also be noted that the attack on Saddam Hussein took place on the strategic road running from Baghdad north through ad-Dujayl, Samarra’, Tikrit, and on to Mosul in the north, a vital artery in wartime.

Thus this attempt was a very serious crime of collaborating with an enemy government in wartime to kill the leader of one’s own country and bring to power a regime friendly to the enemy government. It is entirely reasonable that the Iraqi government, like any other government, would take severe measures against such plotters.

The Iraqi Regime did not summarily execute just anyone in the area where the attacks occurred. Former US Attorney General Ramsey Clark, who has joined the defense team for the Iraqi President, wrote in a letter on the case dated October 10, 2006 in which he noted that the investigation of the 1982 plot took two years. In the end 148 members of the illegal Iranian-based Da’wah Party were convicted based on the defendants’ admissions of guilt and the evidence of “treason for taking up arms in providing armed support for Iran in the war.” Under Iraqi law the crime of treason carried a mandatory death penalty and they were accordingly executed.

Whatever questions might be raised about the Iraqi trials of the 1980s, they took place at a time when the US government was generally supportive of Iraq. Current Secretary of Defense Donald Rumsfeld visited Baghdad and met with President Saddam Hussein in December 1983, in the middle of the period when proceedings against the ad-Dujayl conspirators were under way.

But as to the “trial” that has just handed down its death sentences, many international authorities and legal scholars including our own former Attorney General Ramsey Clark have forcefully noted that the proceedings of the trial against Saddam Hussein were hardly in accordance with the principles of jurisprudence that we recognize.

In the trial held under the US occupation, witnesses testified against the defendants anonymously behind a screen and frequently were clearly reading their testimony from a prepared text, witnesses testified about the deaths of certain persons and then it was later demonstrated that those persons were in fact still alive. The defendants were not allowed to cross-examine the witnesses.

And on top of all that the court and judge were appointed under the American occupation, which put in power Shi’i extremists – many of them Da’wah Party members – who had been living in exile in Iran during the period when the ad-Dujayl putschists were trying to topple the Iraqi government. So it was hardly an impartial judge and jury.

Finally, all those convicted by the Baghdad “court” on November 5th, were found guilty of violating laws that were only written after the US invasion of Iraq – that is 20 years after the alleged “crimes” were “committed.” In the United States we are supposedly protected against such ex post facto application of the law, but in occupied Iraq – where the neo-Con dominated Bush Administration claims to be spreading “democracy” – no such guarantees exist.

These and many more specific ways in which the “trial” was utterly unfair can be found on Ramsey Clark’s International Action Center Website at: http://www.iacenter.org/Iraq/hussein-5-102006.htm

Sentenced to death by that utterly illegal “court” on Sunday, November 5, 2006, was Iraqi President Saddam Hussein – whose role in the executions consisted in his signing documents approving the legally mandatory death sentences against the plotters after they were convicted. Also sentenced to death was Saddam Hussein’s half brother Barzan at-Tikriti who was served as the head of Iraqi Intelligence from mid-1982 until late 1983. Finally the gallows were also prescribed for Awwad al-Bandar who was the presiding judge at the trial of the plotters back in the 1980s.

It is easy to see why the people of Iraq are outraged that such a travesty of “justice” be forced upon them by a foreign occupying power. Americans should also be outraged that a government acting in our name would preside over such perversion.