Issue #35: What Happens to the Saddam Trial if Civil War Consumes Iraq

by David Scheffer

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 215 (2006).

In the event civil war or sectarian violence consume Iraq—and that day already may have arrived—the fate of the Iraqi High Criminal Court and the trials of Saddam Hussein and his regime’s top leaders will hang in the balance. Security issues will dominate the proceedings, even more so than they have during the last six months. Although Presiding Judge Ra’uf Abdel Rahman can cut off Saddam Hussein’s microphone at will, the fact remains that Saddam can use the Dujail trial, as currently managed, and any later trials to stoke the violence outside the Green Zone and encourage its threat to the courtroom itself. The immediate alternative is closed trials which will endanger the fairness of the process and anger large numbers of Iraqis (particularly Sunnis) demanding public access to the trials. Indeed, the original justification for holding the trials in Iraq will be largely defeated if that happens. Whether the trials remain open or closed, witnesses increasingly will fear giving testimony. One can imagine the threats to judges, prosecutors, and defense counsel rising and, with their families at risk, many may abandon their important roles in the trials or be killed or wounded trying to fulfill their duties. Even journalists will find it very difficult to cover the trials each day, particularly if their editors and producers deploy them to cover the civil war and a potentially crumbling government, or pull them out of Iraq all together for their own safety. Trial delays will multiply. As the American security umbrella begins to fold, security will become increasingly problematic.

When the International Criminal Tribunal for the Former Yugoslavia was established in 1993, war continued to rage in Bosnia-Hertzegovina and Croatia and there was good reason to locate the court in The Hague where security could be assured and the benefit of distancing the judicial process from the violence could be realized. The downside was how remote it seemed (despite televised coverage) to the perpetrator and victim populations alike, but that was a price that had to be paid at the time. The International Criminal Tribunal for Rwanda was established only months after the genocide that swept that country and, at the time, security was a paramount concern regarding the location of the court. While its location in Arusha, Tanzania, has created some difficulties and the occasional obstruction of the Rwandan Government, the fact remains that the trials have proceeded in a secure environment and its judgments well received in Kigali and globally. An important compromise was to locate the Office of the Prosecutor in Kigali, an arrangement that worked fairly well despite mismanagement problems in both locations during the early years. The Special Court for Sierra Leone was not physically established in Freetown until the United Nations was satisfied that the civil war there had essentially ended and security could be supplemented with the presence of U.N. peacekeepers. The agreement between the United Nations and Sierra Leone establishes the authority to move the court to a foreign jurisdiction “if circumstances so require…” The Extraordinary Chambers in the Courts of Cambodia, located near Phnom Penh, has begun its operations in a peaceful country long after the demise of the Khmer Rouge. All of these tribunals, of course, have enjoyed intensive U.N. engagement and the support of the international community. All of that has been lacking with the Iraqi High Criminal Court.

The discredited optimism of the Bush Administration during and after Operation Iraqi Freedom and the Anglo-American occupation of Iraq included a good faith effort to build a court on Iraqi soil to investigate and prosecute more than a quarter century’s atrocity crimes of genocide, crimes against humanity, and war crimes under the regime of Saddam Hussein. If all else had proceeded well—creating a secure environment that would have saved the lives of an estimated 30,000 Iraqis who have now perished, maintaining the Iraqi army and police largely intact, launching a successful reconstruction program, fully restoring and improving essential services like electricity and sewage treatment and the crippled oil industry, and preventing the killing, torture, or abusive treatment of detainees and civilians by U.S. personnel and contractors which has shattered American credibility within Iraq and across the Islamic world—than the Iraqi High Criminal Court might have had a fighting chance. But such progress never occurred and now, as with so much else in Iraq, we are where we are and we must cope with the consequences.

Three outcomes must be guaranteed. First, the Dujail trial must proceed in accordance with international standards of due process. Otherwise, it will constitute defective justice that will undermine the rule of law in Iraq and threaten civil order. The judges (or some other competent Iraqi court) must rule in writing and with professional reasoning as soon as possible on defense motions regarding the legitimacy of the Iraqi High Criminal Court and of its jurisdiction over the Dujail case, as well as whether there is any conflict of interest for Judge Rahman or any other judge. The security risks and occasional chaos of the Dujail trial might subside somewhat, and key due process fundamentals would be observed, if those rulings were delivered.

Second, the death penalty must be removed, de facto if not de jure, as a possible sentence in the Dujail trial in the event Saddam Hussein is found guilty. No one can predict accurately the consequences of such a penalty being carried out in the near future, but one has to assume the worst case scenario in the violent circumstances of contemporary Iraq. A death penalty likely will make Saddam a martyr for the insurgency and much of the Sunni population. Why invite that probability? Furthermore, Saddam Hussein must be kept alive for many years in order to be prosecuted for far more significant atrocity crimes for which his alleged responsibility is the fulcrum of forthcoming trials covering, at a minimum, the Anfal campaign, the chemical gassing at Halabja, the invasion and occupation of Kuwait, the brutal suppression of the Shi’a and Kurdish uprisings following the Gulf War, the draining of the southern marshes, and the political persecutions of Saddam’s regime. Iran also looks for justice regarding Saddam’s alleged war crimes during the Iran-Iraq war of the 1980’s. If Saddam sits in the dock with a death penalty already imposed but temporarily suspended, he will have nothing to lose by using subsequent trials as his platform to inspire domestic violence. If Saddam is executed following the Dujail trial, there is a strong likelihood that the air will be sucked out of the later mega-trials (if they are held at all). Justice and the historical record would not be served well. The millions of victims and their families in Iraq, Kuwait, and Iran would look back at the Dujail trial as an obscenity.

Third, someone has to have the foresight and courage to plan for the transfer of the Dujail trial or at least the subsequent trials to a location outside Iraq where security can be guaranteed and a process undertaken over many years to bring Saddam Hussein and his colleagues to justice. That plan not only must be initiated, it must be known to be underway so that the forces of violence in Iraq understand that justice will not be derailed or denied whatever the outcome within Iraq politically or militarily. That requires a far more energetic diplomatic effort by the United States and Iraqi authorities to discuss and negotiate judicial options in foreign jurisdictions and even under United Nations authority. Pride needs to be swallowed and reality embraced. In the end, if all of the trials can take place in Iraq in a secure environment and observant of international standards of due process, then the plan would be an obscure footnote to Iraq’s emergence from the Saddam era. But without such a plan in a country sliding towards civil war, the Dujail trial may become the main act burying credible justice in modern Iraq.

Posted @ 6:02 PM | Experts Debate the Issues: The Dujail Trial

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Posted by Payday Loan Advocate (email) on 10/06/2008 @ 12:34 AM

Mr. Scheffer fails to seriously consider the effects of his suggestions on the Iraqis’ perception of the legitimacy, fairness, and independence of the Iraqi High Tribunal (“IHT”). The IHT is a unique hybrid court – an “international domestic tribunal” – so it is important that its rules comport to general standards of international law; however it is even more important that its laws reflect Iraqi law. Huge deviations from domestic rules and the forced imposition of international standards could lead to Iraqi resentment of the international community and the court. Mr. Scheffer cautions that closed trials could “endanger the fairness of the process,” however he does not carry the theme of fairness throughout his discussion. In fact, the changes Mr. Scheffer proposes may even increase the possibility of civil restlessness in Iraq. Justice will be best served if the people closest to the proceedings – the Iraqis, the judges, and the defendants themselves – believe that the tribunal is legitimate, fair, and independent.

First, Mr. Schaffer says the Dujail trial must follow international standards of due process. During the Dujail trial, there were mechanisms in place to ensure the IHT complied with international standards of due process, and due process was largely upheld: the tribunal presumed each defendant was innocent (like American courts), and the defendants were given many rights (Article 19 of the IHT Statute). However, despite attempts to promote the perception of the court’s fairness, there was a lot of international scrutiny of the Dujail trial. For example, some American critics claimed that due process was violated because the Iraqi judges had to be convinced of guilt to a degree of “moral certainty” (the civil law standard) instead of the American standard of guilt “beyond a reasonable doubt,” even though in practice the two standards essentially are the same. Merely because the IHT uses a different name for its standard of proof does not mean that the judges have more discretion and it certainly does not mean that the entire system is inherently corrupt. Much of the criticism is the result of misled media attention and political bias based on the U.S. occupation of Iraq.

Mr. Scheffer’s last two suggestions are the removal of the death penalty and the relocation of the trials outside of Iraq. What effect will these changes have on the Iraqis’ perception of the trial? The removal of the death penalty would affect the Iraqis’ perception of the autonomy of the IHT: since Iraq’s first legal code, the Code of Hammurbai in 1750 BC, Iraq has retained the death penalty. The people of Iraq consequently support corporal punishment – especially in the case of a criminal who committed the most atrocious crimes imaginable, such as genocide and crimes against humanity. It would upset the Iraqi tradition if international organizations and other countries insisted that IHT not apply the death penalty. If Iraq is going to maintain its sovereignty, it must be able to make its own choices concerning its judicial system, and should be able to do so without backlash from the international community. The choice to sentence Saddam to death was a choice for the country of Iraq, and should not be criticized so much by other governments and organizations around the world. And finally, the relocation of the trials would enhance the sentiment that the court is a puppet of other systems of government. Despite the obvious problems of transporting documentation and witnesses to another location, the Iraqis’ perception of fairness would obviously be skewed because they would be distanced from the trials.

The IHT certainly faces challenges as an international domestic tribunal, and those challenges can only be overcome once the people of Iraq see the trail as fair, legitimate, and independent. Moving the trials outside of Iraq and removing the death penalty sentence would undermine the Iraqis perception of the fairness of the trial. Instead, the IHT should work in the future to ensure the tribunals’ transparency and accountability in Iraq, and only then can the rest of the international community perceive the IHT as a fair, legitimate, and independent court.

Posted by Anonymous on 02/04/2008 @ 11:48 AM

So, maybe not such a "Grotian Moment" after all, eh? Maybe more like the workings of pure 19th century imperialism, which was also frequently "justified" by an appeal to the then-current versions of the discourses of human rights and human virtues.

I don't doubt the good intentions of all the (mainly Anglo-American) law profs and other international lawyers who have acted as advisors for the US/UK project in Iraq, including its IST component. I do, however, think that their (your) striking deafness to the lessons of history and crude political science, and your often blinkered belief that enactment of the criminal justice process (which also happens to be your living)can solve even the knottiest of human problems has led many contributors here to swallow whatever misgivings you had about the US/UK launching of a gratuitous war and invasion of Iraq and to throw your lot in with the ensuing project in Iraq.

I'm glad that you, David, now show some understanding of the enormity and depth of calamity of the socialk/political collapse occurring inside Iraq today. (Indeed, it has been occurring there for some time now.) I should imagine that the question of "What to do with Saddam" is quite low on the list of challenges currently faced by the increasingly embattled occupation force. I expect they will probably attempt to exfiltrate him at some point, and all those judges and court personnel enacting the rituals in the courtroom there will be given their long-promised Green Cards and also exfiltrated.

What this does to the broader venture of "international criminal justice" is something for you and other strong advocates of this venture to worry about. For my part, I just hope this whole tragic episode in Iraq reminds everyone, especially our friends in the western rights movement, that we should give the demands of politics, peacemaking, and active conflict prevention far higher precedence than they have been given in recent years... and that this is a far surer route to improving the wellbeing of actual human persons trapped in zones of conflict and oppression than the enactment of the often quaintly medieval rituals of western courtrooms.

Posted by Helena Cobban (email) on 04/12/2006 @ 09:17 PM

http://www.guardian.co.uk/comment/story/0,,1746173,00.html

They'd do better sticking Saddam's head on a pole

By Sadakat Kadri, The Guardian, April 4, 2006

... The most significant legacy of 1945 is not the platitude that Saddam will get the justice he denied his people. It is a warning uttered by Robert Jackson, the US chief prosecutor at Nuremberg: "If you are determined to execute a man in any case, there is no occasion for a trial. The world yields no respect to courts that are merely organised to convict." Events in the Green Zone have, it seems, become precisely what Jackson reviled: a ritual aimed at prosecuting Saddam very publicly to death. ...

Churchill opposed the prosecution of senior Nazis, arguing that they should be shot on capture. It was Stalin, always up for a show trial, who demanded a judicial pageant. History has vindicated the Soviet despot (which should in itself give pause to Nuremberg analogies), but legalism worked in 1945/6 only because it was imposed over the heads of a vanquished population. ...

To laud Saddam's trial as a humanitarian milestone is a politician's lie. Iraq's invaders opened up an inferno, including notions of justice as foreseeable as they are loathsome. The prosecution will never symbolise the rebirth of the rule of law. The hanging to come will signify nothing but sleight of hand. A more fitting tribute to the tragedy unleashed by Operation Iraqi Freedom would be Saddam's head, shot through the temple and stuck on a pole, with nary a human-rights lawyer in sight. But that's just a legal opinion.

Posted by Paul Wolf (email) on 04/03/2006 @ 09:22 PM

The points made in this article, while well-intentioned, appear to have come too late. Scheffer alludes to the reasoning behind holding the Saddam trial in Iraq, and why a public trial is necessary. However, in this article he focuses on some of the problems with such a trial. One example would be, the fear witnesses testifying in such a public and crucial hearing may feel for their lives or families. Given the instability that has dominated life in Iraq over the past three years, I find it hard to believe that those testifying in his trial were not already well aware of the possible danger they could face. This is evident especially when we recount the problems the Iraqi court has had in keeping a judge, or the murder of some members of the counsel. If those killings were not a strong enough signal to scare people from testifying, how much more will a Civil War affect that fear?

Scheffer also discusses a couple changes he feels may better serve the Iraqi people, the victims of Saddam’s crimes, and justice. Specifically, he states that the death penalty should be taken off the table, and that a plan should be set in place for moving the trial to another jurisdiction or location if necessary. While Scheffer’s points are legitimate, he does not effectively distinguish his argument from the opposing views. Some could argue that regardless of how many trials Saddam sits through, justice could still be served by his execution even if he is not convicted of each crime he has committed. Personally, I never see a legitimate reason for the death penalty, but that is not a decision for me to make, but the Iraqi people and the Iraqi court.

Finally, we have watched our “reconstruction” of Iraq continually fail. Conditions there are not improving and it is hard to make the argument that our participation is ultimately leading to a stable Iraq. By moving the trial elsewhere, it seems to me, that we would risk upsetting the Iraqis even more by once again flexing our muscle over their country’s affairs. Similarly, we could not be justified in negating the death penalty as a punishment given the way it is implemented in this country. It appears to me that the trial and the people of Iraq would be better served by a fast and fair open trial. Moving the trial could cause yet another delay in the trial, and after the recent events at the Hague with Milosevic, the potential hazards of letting the trial run too long are clear. Regardless of the fact that Saddam is not the only person on trial for these atrocity’s, unlike Milosevic’s trial, the primary focus around the world is on Saddam and not on his co-defendants.

Posted by T. Chalker on 04/03/2006 @ 11:06 AM

Up until now most of the contributors to this website have been pontificating in a self-righteous bubble, seemingly oblivious of the terrible suffering inflicted on the Iraqi population by a reckless invasion and disastrous divide-and-conquer policies, preceded by 12 years of sanctions and bombing. (The true number of Iraqi fatalities directly and indirectly caused by the invasion is probably well in excess of 100,000.) Hopefully David Scheffer’s acknowledgement that Iraq is spiralling into civil war marks a turning point in that regard. However, his recommendations are unlikely to be followed.

George W. Bush will never admit that he has shot himself in the foot with this half-baked show trial even if his whole leg turns gangrenous. And the new Iraqi authorities, having failed so miserably in almost every respect, have a vested interest in the expeditious liquidation of a predecessor whose stature has grown his overthrow in spite of being displayed like a hunting trophy by his American captors. For his part, Saddam Hussein has told his lawyers that he doesn’t want his trial to be moved to another country, reiterating what he has always said in the past, namely that he wants to die in Iraq. Who could be so cruel as to deny him a wish that even his worst enemies are happy to fulfil?

I would also say to Professor Scheffer: be careful what you wish for! As the situation in Iraq goes from bad to worse under Anglo-American tutelage, there would be enormous public pressure on any UN-Sponsored tribunal to press charges against those directly and indirectly responsible for the wholesale destruction of that country. (An impressive amount of relevant evidence has already been collected by the Brussels Tribunal.)

Old hands like Rumsfeld and Cheney (along with Bush Snr) must also be aware of how much Saddam Hussein could reveal about the Machievallian machinations of previous American administrations vis à vis Iraq before, during and after the Iran-Iraq war and the first Gulf war. Much has been made of American complicity in some of Saddam’s alleged crimes, but fresh revelations about Washington’s compulsive scheming and double-dealing would be potentially even more explosive and could destroy the last remaining vestiges of America’s reputation in the Arab and Muslim world.

Posted by Alison Gundle (email) on 04/03/2006 @ 07:28 AM

Concerning the Scheffer’s first argument that the Dujail trial must be consistent with international standards of due process, I agree with it. Especially under the process that Iraq is now trying to participate in the International society as a legitimate nation apart from the Saddam’s regime, to assure due process following international standards in his tribunal will be the first step for Iraq to be acknowledged internationally as a democratic country. However, in order to accomplish the goal, it cannot be forgotten that there are some side effects that should be overcome.

It seems to me that Scheffer argues in his second point that “the death penalty must be removed,” referring to his first point, that is, the need of “international standards of due process.” Scheffer points out that if the death penalty were maintained, Saddam would be idolized as a hero of insurgency, which would contradict the Iraqi’s peace process in future. In stead, Scheffer suggests that Saddam must be kept alive so that he will be accused of “more significant atrocity crimes.” Though I admit that it might be important to unveil what Saddam has done by prosecuting him for every possible crime, first, I do not agree with this second point in relation to his third point focused on security concern. For, I do not get why he suggests that Saddam should be kept alive while suggesting in his third point that the Dujail trial needs to be relocated outside Iraq where security is guaranteed because I do not think making Saddam alive does not lead to security of his trial or of the Iraqi’s peace-recovery process even if the trial is transferred to somewhere else. By doing so, Iraqi people would have more difficulty knowing what is going on in Saddam’s trial, which would also be big hindrance to the Iraqi’s civilization. Second, although Scheffer states that Saddam’s execution would likely invoke subsequent domestic violence, to keep him alive for many years in prison does not mean that there would be fewer possibilities that Saddam would affect his supporters outside the prison. Whether or not I am for the death penalty in general, I do not agree with Scheffer’s second point based on the security concern.

Besides what I mentioned about Scheffer’s third point that the Dujail trial should be transferred outside Iraq, I do not agree with the point for another reason. As Scheffer suggests, by transferring the trial, even though security might be more guaranteed than ever, we would rather have to be concerned about independency of the trial from the country where the trial is held. The judges, more or less would be affected by the interest of the country, and there would be no guarantee that the benefit obtained from that exceeds the security concern, or at least contributes to the Iraqi’s civilization.

Posted by Takahiko Shibayama on 04/03/2006 @ 03:02 AM

Scheffer’s essay advises three courses of action for the trial of Saddam; that the court rule on the defense’s motions questioning the jurisdiction of the court, that the death penalty be omitted from this trial, and that the trial be moved outside of Iraq.

The comments replying to this essay offer good arguments that killing Saddam, via the death penalty, will lead to increased violence and instability in Iraq. (His death will immediately cause violence in the short run, and he will develop, postmortem, as a martyr, a legend, a rallying point,). They offer good arguments that letting Saddam live will lead to increased violence and instability in Iraq. (He will spend the rest of his life in the courtroom, in the public eye, honing his skills at inciting violence and offering hope to those who still support him that he might return). The comments suggest too that the availability or unavailability of the death penalty will affect the public’s view of whether the trial is valid, and whether the whole new Iraqi government is legitimate, and whether the war was/is justifiable.

But all of these arguments, worthy though they may be, assume that these externalities legitimately influence whether the death penalty should be available. If this trial is legitimate, in the same way that other trials are legitimate, should the question of the death penalty really be decided by looking at the political fallout of such a punishment?

The issue of whether to move the trial out of Iraq is treated with similar strategic analysis. Comments have argued that such a move “would erode the United States’ already attenuated credibility” and that it would send a “potent message to the insurgency: Attack hard enough and the Americans and Iraqis will capitulate”. Again, these seem like plausible consequences, but should they really matter? Much of the debate is about which course of action would give the best appearance of legitimacy, the most verisimilitude. But it seems all to be from a strategic point of view.

Maybe this is all as it should be. Maybe it would be highly unwise to plow forward without considering the broader social, military, and political consequences of each decision the court must make. It must be very naive to think the court could ever be free of such entanglements, but it is a bit disconcerting that there seems no bright line, no striking difference, between the debate on how the court should proceed, or rule, or operate, and a political debate on how best to avoid further damage or help the PR of the Iraqi or American governments.

Posted by Chelan Bliss (email) on 04/03/2006 @ 01:25 AM

If civil war does ensue in Iraq security concerns will only become worse in a country where security seems to be the biggest problem in everyone’s life. Scheffer suggests that the Court needs to take three important steps to ensure that it can survive in the advent of Civil War: (1) rule on the defense’s motions on the court’s jurisdiction, using credible legal reasoning, to ensure the court meets international due process standards, (2) eliminate the death penalty possibility, and (3) formulate a plan for removal from Iraq if it should become necessary. Every one of these goals are worthy, and, in fact, seem very important to the success of the tribunal whether or not the situation in Iraq develops into a full blown civil war.

First, the Court does need to rule on its jurisdiction, and show that it conforms to international due process standards. This will help to show the Court is making good faith efforts to respect international law, and that it incorporates basic international principles of justice. However, while this is a needed step, I doubt that it will do much to subside the chaos surrounding the Dujail trial. Regardless of the due process questions, critics of the court, including Saddam Hussein, will always question its legitimacy. After all, what does one expect Saddam to do when he is confronted with the fact that he is no longer dictator of Iraq. Saddam knew what he was doing in 1982 when he ordered his subordinates to carry out attacks, arrest, and torture Shia Muslims. He did not care whether it conformed with international law then, and he doesn’t now. Ruling on the court’s jurisdiction and showing that it conforms to due process standards will not do much to quell Saddam’s actions, but it may help to show that the Court is legitimate according to international standards.

Second, in also showing the IST respects international standards, it is important for the Court to remove the death penalty from possible punishment. Not only will removing the death penalty help to ensure that the remaining cases against Saddam Hussein will proceed, but it will show that the IST is committed to justice, not just revenge. Regardless of one’s personal opinion on the death penalty, it is important to note that many Western nations have eliminated it from their laws. If the Court wishes to show that it makes efforts to comply with international justice it should not be too quick to execute and bury a tyrant, but instead should solely be concerned with sorting out the facts of his reign, and providing a comprehensive, objective story for history. If Saddam is executed this will not happen. His execution will probably dominate headlines, much as his antics have. Rather than allowing the world to see an objective opinion based on facts and legal reasoning (as is possible if Saddam is fully prosecuted), the world will only see tirades, rants, and an execution amidst the already puzzling scene everywhere else in Iraq. To comment on his possible martyrdom if executed, however, Saddam probably already is a martyr to his strongest supporters. He is being put on trial in a court of law, and was captured by American forces.

Scheffer’s third note is that the IST needs to formulate a plan for removing itself from Iraq if security concerns become so grave this is necessary. This is certainly something the tribunal needs to consider. Many commentators, including Ruth Wedgwood, have advocated for the tribunal to be in Iraq for a variety of reasons, from showing that a competent legal tribunal can exist on Iraqi soil to assembling an accurate, credible case against Saddam. Having to remove the IST from Iraqi soil would undoubtedly be a blow to the Iraqi government and its ability to secure Iraq. However, it is better to remove the trial in the face of security threats than to have it dissolved, destroyed, or even de-legitimized and all its work wasted. A plan to remove the tribunal could, as Scheffer suggests, become “an obscure footnote to Iraq’s emergence from the Saddam era,” if it never is enacted. However, Scheffer is correct when he states that not having such a plan, and the tribunal dissolving, would be a severe blow to the possibility of credible justice in Iraq anytime in the near future.

The Iraqi Special Tribunal will always have to combat concerns of illegitimacy. After all, it was created in the wake of perhaps the worst planned, and most illegitimate invasion by a world power in many years. However, that damage is done, and the Iraqi Special Tribunal has a chance to show that it is committed to conforming with international law, establishing some justice in Iraq, and moving the country forward and out of Saddam’s regime in this most desperate time.

Posted by Adam Griffin (email) on 04/02/2006 @ 10:33 PM

I find two of Sheffer’s arguments questionable. First, he implies the Bush administration’s policy failures have de-legitimized Dujail; second, he posits the trial’s success hinges on moving its proceedings outside Iraq. I respectfully but strongly disagree with both assertions.

To prove the trial’s supposed illegitimacy, Sheffer offers a long litany of administration mistakes, such as disbanding the Iraqi Army, failing to reconstruct the country rapidly enough, and the barbaric acts of torture committed in U.S.-administered prisons. While all these have undermined American credibility, Sheffer has failed to establish they damaged Dujail’s. The United States is occupying Iraq; such questions of legitimacy would have surfaced regardless of whether the events listed above took place. Also, because Iraqis are conducting the trial, American policy failures have at most a tangential effect – which is hardly the direct causal connection Sheffer implies. To say Iraqis’ outlook on trying their former dictator shifts with the vicissitudes of American policy errors vastly oversimplifies a complex situation.

I also take issue with Sheffer’s proposal to move the trial abroad as soon a possible. Changing the venue five months into the proceedings is strategically unwise. Transporting the trial outside Iraq’s borders would lead to an administrative disaster. Moving witnesses, critical evidence, attorneys, etcetera outside the country might permanently cripple Dujail and negate all progress made.

Further, moving the trial abroad would erode the United States’ already attenuated credibility. More importantly, it would send a potent message to the insurgency: Attack hard enough and the Americans and Iraqis will capitulate. This, in turn, would place the United States and Iraqi government in a fundamentally weaker position by emboldening our enemies. Given the already increasing level of violence throughout the country in recent weeks, few things could be more inimical to American interests.

Posted by Adam Justice (email) on 04/02/2006 @ 09:15 PM

I find two of Sheffer’s arguments questionable. First, he implies the Bush administration’s policy failures have de-legitimized Dujail; second, he posits the trial’s success hinges on moving its proceedings outside Iraq. I respectfully but strongly disagree with both assertions.

To prove the trial’s supposed illegitimacy, Sheffer offers a long litany of administration mistakes, such as disbanding the Iraqi Army, failing to reconstruct the country rapidly enough, and the barbaric acts of torture committed in U.S.-administered prisons. While all these have undermined American credibility, Sheffer has failed to establish they damaged Dujail’s. The United States is occupying Iraq; such questions of legitimacy would have surfaced regardless of whether the events listed above took place. Also, because Iraqis are conducting the trial, American policy failures have at most a tangential effect – which is hardly the direct causal connection Sheffer implies. To say Iraqis’ outlook on trying their former dictator shifts with the vicissitudes of American policy errors vastly oversimplifies a complex situation.

I also take issue with Sheffer’s proposal to move the trial abroad as soon a possible. Changing the venue five months into the proceedings is strategically unwise. Transporting the trial outside Iraq’s borders would lead to an administrative disaster. Moving witnesses, critical evidence, attorneys, etcetera outside the country might permanently cripple Dujail and negate all progress made.

Further, moving the trial abroad would erode the United States’ already attenuated credibility. More importantly, it would send a potent message to the insurgency: Attack hard enough and the Americans and Iraqis will capitulate. This, in turn, would place the United States and Iraqi government in a fundamentally weaker position by emboldening their enemies. Given the already increasing level of violence throughout the country in recent weeks, few things could be more inimical to American interests.

Posted by Adam Justice (email) on 04/02/2006 @ 09:13 PM

Mission Accomplished

Mr. Sheffer’s first point is fundamental to the remaining questions. The legitimacy and jurisdiction of the High Criminal Court must be established absolutely. This is a reasonable challenge by the defense and to neglect it this long has been a mistake. If no Iraqi Judge is able to write a logical opinion base upon legal principles as to the authority and jurisdiction of the Court then what is the point of calling it a trial? Without a legitimate court, execution is murder. The decision to plan to move the Court to another location is made even more problematic since the question “move it where” becomes even more difficult. Who’d take this court is a hard enough question. Who’d take this illegitimate court is harder.

However, I do not have any faith that the escalation of the insurgency will diminish on account of acceptance of the courts authority. I do not feel that the insurgency relies on the Court for inspiration.

The issue of the death penalty is much more interesting. Mr. Scheffer believes that the death penalty should not be administered to Saddam Hussein, that it “should be removed, de facto if not de jure.” Many of the other commentary of this article disagree, and I must as well. I must also agree with Mr. Malbasa and others who say that if it is removed it must be done so at the direction of Iraqi leadership. However, I think that would be a mistake.

This would be a mistake because in the light of the growing insurgency and potential for open civil war keeping a living Saddam in an Iraqi prison or abroad will promote the insurgency, not necessarily because he is a leader who some may want to return to power, but also by giving insurgent leaders the idea that there is still someone they can supplant. Not every insurgent wants Saddam back.

If Saddam is found guilty and sentenced to life in prison, he still has nothing to lose by agitating the Iraqi people and attempting to inflame the insurgency. No different than If he is sentenced to death. The only way I think this could have happened is that if all those happy things Mr. Scheffer said in his third paragraph had actually occurred and fast. If there had been a smooth transition of power, quick rebuilding of infrastructure, huge stockpiles of weaponized GA (Tabun) nerve agents found and destroyed, and a strong statement from the Bush administration that torture will not be tolerated at Abu Grahib…then perhaps I could have seen Saddam Hussein rotting away in a prison similar to Rudolf Hess in Spandau.

But that is, sadly, not the case and the execution of Saddam Hussein is a very real and likely possibility.

If Saddam is executed before all of his crimes are brought to trial Mr. Scheffer believes that “millions of victims and their families in Iraq, Kuwait, and Iran would look back at the Dujail trial as an obscenity.” I think this is unlikely since for about ten years those victims got along without the belief that he would even be deposed, let alone hauled before a court. I imagine that they were counting on an assassin’s bullet to give them justice.

Another argument is that if Saddam is executed the wind will sucked from the sails of the other trials and that they may not even continue. Well…yes, probably. But why is that? Because they will no longer be popular television fare? Because the lawyers will not gain enough notoriety for their participation? Or because funding will be cut since “we got who we wanted”? So what! It would probably make it safer for witnesses and others involved. Justice can continue without fanfare, probably better.

One important advantage of sentencing Saddam to death following the Dujail case, (if he is found guilty of course) is that should the country fall into civil war, and the insurgents win, the sentence can be carried out before someone frees him.

I think that Saddam will be executed no matter what the outcome of any proposed civil war. Either he will be executed by an Iraqi court in the event the civil war is suppressed, or he will be executed by an insurgent leader who seeks to replace him as the leader of the Iraqi people if the insurgents win.

Whichever the outcome, the world will have to deal with whoever kills him. Either it will be the current Iraqi leadership or it will be another. We will have to be able to look them in the eye.

Many of the opinions on this page are opposed to making a plan to remove Saddam and hold court elsewhere should the civil war turn (more) ugly. I do not see any problem with making a plan to extract Saddam. In fact, that might be the only thing that could keep him alive if things turn really nasty. The real question is where? It would have to be an Arab country, or at least Muslim. To suggest a European country raises the death penalty issue again. That excludes Turkey. Iran would be out of the question.

It is a difficult political point. Who would want the risk of terrorism in their state for the sake of the Saddam trial?

On the whole, the only way to insure that justice for the victims of Saddam Hussein will not be “derailed or denied” in the light of increased fighting and likelihood of civil war is: 1. Legitimize the Court by determining Jurisdiction;
2. Respond to defenses shenanigans rapidly so there is no delay in the trial;
3. Rule and carry out the sentence (Long drop, short rope).

To answer the question posed by the title of the piece what happens to the Saddam Trial if Civil War Consumes Iraq, one would have to make a hypothetical:

What if Ho Chi Minh had been on trial in Saigon in April 30, 1975?

Posted by George Inman (email) on 04/02/2006 @ 04:45 PM

Prof. Scheffer discusses questions of due process, the death penalty, and an escape plan in the context of the greater goal of ensuring the credibility of the proceedings in the eyes of the Iraqi people and the world. While this goal tugs at the heartstrings of my own inner optimist it remains naïve, at best. Simply put, all of the issues that Prof. Scheffer raises are compelling in an academic context – a world of reasoned discussion and rational analysis – but, in the context of a nation at war I doubt that any formulation for resolving these issues will result in recognition of the Saddam trial as being, in any from, legitimate or credible.
I agree with Prof. Scheffer, as most I suspect would, that ensuring the legitimacy of due process is crucial to the acceptance of the Saddam trials as being legitimate. It doesn’t get much more basic than this. The problem is that a world torn by sectarian strife, occupied by western powers, and subject primarily to the rule of force may fail to appreciate the rules and order by which their government, a lapdog of the aforementioned Western powers, prosecutes their former leader. Do the people of Iraq care that their dictator is being tried fairly under our Western conceptions of justice? Furthermore, will it matter to the Iraqis that he enjoyed due process when stability returns to the region? It seems likely that the Iraqi people will fail to appreciate the value of due process in light of the fact that they perceive this trial to be a mere formality of military occupation. In fact, it appears that the people who are truly concerned with due process are those who are attempting to keep an eye to history. Most realize that the legitimacy of the war in Iraq is, as best, questionable. Thus, in order to maintain a façade of legitimacy of purpose it is of the utmost importance that Saddam be dealt with in the most respectful way possible and subsequently convicted of committing crimes against humanity. The Saddam trial is, in effect a shell game. While we watch what one hand is doing we fail to realize what the other is up too. By attempting to clothe the Saddam trial in robes of legitimacy through due process we are attempting to conceal the uglier, imperial side of our actions in the Middle East. Thus, while guaranteeing due process does lend a certain legitimacy to the proceedings in the Green Zone, it only truly does so for Westerners who are trying to reconcile the imperial motives that underlay the occupation on one hand, and their moral impetus which desires justice for the oppressed on the other.
Prof. Scheffer continues on to discuss the wisdom of allowing the application of the death penalty for Saddam. While those who support the death penalty have some valid arguments, I believe that executing Saddam would create a greater problem than it would be solving. As the legitimacy of the Court is already in question, it seems logical to conclude that most Iraqis would view Saddam’s execution as being the will of the West being carried out by its puppet government. Legitimacy is a fragile attribute in a war-torn society. Thus, if the new government were to execute Saddam it may do more to reinforce his supporters through the creation of a cult of Saddam and further add to the impression that the government in Iraq has more in common with Vichey France than with the needs and desires of its people. Some may contend that allowing Saddam to live would destroy legitimacy in its own right, as he will continued to be viewed as a leader for the rest of his life. While I recognize this possibility, it seems to be the lesser of two evils. Assuming that Saddam is convicted and sentenced to life in prison, the Iraqi government may then control how much contact Mr. Hussein has with the outside world. Such control may not destroy his foundation of support, but it serves as a more effective protection against the creation of a deified Saddam than executing him would. In effect, executing Saddam will force the Iraqi government to deal with a force that may be more destructive than Saddam Hussein is himself – his memory.
Finally, Prof. Scheffer calls for an escape plan for the Saddam trial so that it may be continued outside Iraq should civil war break out. The Professor seems to think that by carrying out the trial in another country, while Iraq is in the midst of civil war, we will be able to salvage the credibility of the proceeding. While I would not advocate giving up on the trial now or in the event that civil war broke out, I still do not believe that the West can do anything that will bestow legitimacy upon these proceedings. We have invaded these people’s country under false pretenses. There was virtually no effort made to attempt to lend this endeavor legitimacy by making it an action of the nations of the world assembled. The trial is generally viewed as being a formality of victory. In short, the toppling of Saddam was a necessary action gone about in the most destructive way possible. While Prof. Scheffer and others may write extensively and eloquently on the merits of one plan for the trial versus another, it does not change the fact that the entire Iraqi operation is illegitimate, and illegitimacy may only breed illegitimacy. Regardless of whether or not due process is followed to the letter, the death penalty is applied, or there is a contingency plan in the event of civil war the Iraqi people, and even the rest of the world, realize that the occupation of Iraq is at root an imperial action and that alone deprives the Iraqi High Criminal Court of any hope it may have had for legitimacy.

Posted by A. Kinney on 04/02/2006 @ 02:59 PM

While Mr. Sheffer's fears regarding the potential effects of a civil war on the trial of Saddam Hussein are legitimate, his proposal for addressing the unfolding reality in Iraq loses sight of the primary aims of the trial and the war. Once the United States occupied Iraq, one of its primary aims became the establishment of democracy. Mr. Sheffer's second proposal, to take the death penalty off the table, and his third proposal, to develop a plan to move the trial in the case of civil war, are inconsistent with this aim. Indeed, these proposals may even undermine the goal of establishing democracy in Iraq.

Mr. Sheffer's suggestion that the death penalty be removed as a possible sentence does not clarify who should take the option off of the table. If the decision is made by the elected leadership of Iraq do so, then it would be fine. However, should the decision be made by the judge, under pressure from the United States, then the decision would undercut the very legitimacy of the Government we are hoping to sustain. Moreover, if it is the will of the sovereign government of Iraq to offer the death penalty as a sentence, then no external body should pre-empt the Iraqi will represented by that government.

Similarly problematic is Mr. Sheffer's proposal to plan for the removal of the trial. His suggestion fails to consider the effect that the failure of the court may have on the ability of the current Iraqi government, elected by the people, to maintain its credibility. Rather than dealing with the possibility of civil war, this proposal could further weaken the current government and increase its susceptibility to insurgents.

The precarious position of the Saddam Hussein trial is obvious. However, it must be viewed as one aspect of a larger effort, not as an end in itself. Protection of the trial as a showcase of a lawful Iraq should clearly be a priority as U.S. and Iraqi forces continue to fight those who would undermine democracy and the rule of law.

Posted by Benjamin D. Malbasa (email) on 04/02/2006 @ 02:55 PM

While Mr. Sheffer's fears regarding the potential effects of a civil war on the trial of Saddam Hussein are legitimate, his proposal for addressing the unfolding reality in Iraq loses sight of the primary aims of the trial and the war. Once the United States occupied Iraq, one of its primary aims became the establishment of democracy. Mr. Sheffer's second proposal, to take the death penalty off the table, and his third proposal, to develop a plan to move the trial in the case of civil war, are inconsistent with this aim. Indeed, these proposals may even undermine the goal of establishing democracy in Iraq.

Mr. Sheffer's suggestion that the death penalty be removed as a possible sentence does not clarify who should take the option off of the table. If the decision is made by the elected leadership of Iraq do so, then it would be fine. However, should the decision be made by the judge, under pressure from the United States, then the decision would undercut the very legitimacy of the Government we are hoping to sustain. Moreover, if it is the will of the sovereign government of Iraq to offer the death penalty as a sentence, then no external body should pre-empt the Iraqi will represented by that government.

Similarly problematic is Mr. Sheffer's proposal to plan for the removal of the trial. His suggestion fails to consider the effect that the failure of the court may have on the ability of the current Iraqi government, elected by the people, to maintain its credibility. Rather than dealing with the possibility of civil war, this proposal could further weaken the current government and increase its susceptability to to insurgents.

The precarious position of the Saddam Hussein trial is obvious. However, it must be viewed as one aspect of a larger effort, not as an end in itself. Protection of the trial as a showcase of a lawful Iraq should clearly be a priority as U.S. and Iraqi forces continue to fight those who would undermine democracy and the rule of law.

Posted by Benjamin D. Malbasa (email) on 04/02/2006 @ 02:50 PM

David Scheffer makes some interesting arguments pertaining to the Saddam trial in the possible event of an Iraqi civil war. Mr. Scheffer states three things that must happen in order to insure justice in Iraq if there is a civil war; (1) the Dujail trial must proceed in accordance with international standards of due process, (2) the death penalty must be removed, and (3)the trial must be transferred to a location outside of Iraq.

I strongly agree with Mr. Scheffer on the argument that the trial must proceed within the international standards of due process. If Iraq is to come out of this war as a country with any respect in world organizations, it must now begin to acknowledge that international law governs Iraqi law just as it does the law of all other nations. By sticking to international standards of due process, the Iraqis can begin to show the world that they truly are ready for a democratic, international-friendly government.

Mr. Scheffer next argues that the death penalty must be removed in order for justice to be served in Iraq. I am not convinced by this argument. This is a decision that individual states should make for themselves. Although, 122 countries have abolished capital punishment, there are many that have not. Mr. Scheffer's argument is that even if Saddam is found guilty he should be "kept alive for many years in order to be prosecuted for far more significant atrocity crimes for which his alleged responsibility is the fulcrum of trials covering...(a long list of Saddam's crimes)." However, this argument seems to me to be counter-intuitive. The entire purpose of capital punishment is that the crime/s committed are so severe that no other remedy is applicable. If the Iraqi people feel that Saddam needs to be executed in order for justice to be served, then that it the way it must be. As long as capital punishment is a state-specific decision then no other countries should be involved in any particular state's choice on the matter. An argument against capital punishment in Iraq would be appropriate only if customary international law or treaty law spoke against it. This is the not the case. Furthermore, how do US citizens even begin to enforce a doctrine that their country openly violates? Iraqis can simply argue "Tu Quoque" and the US and its citizens have no response.

Mr. Scheffer's final argument is that the trial should be removed from Iraq in the event of a civil war. This argument is not so simple. Although removal of the trail will ensure its stability, it may also create another problem. The entire purpose of having the trial in Iraq, as opposed to an international tribunal, was to put justice in the hands of the Iraqi people. Removing the trial from Iraq places the Iraqis in a position of inferiority. It basically tells them that the US and other international lawmaking bodies do not find them capable of administering their own justice. This is hardly consistent with the concept of empowerment. Can you imagine if other countries tried to prosecute a former US leader outside of the US? US citizens would be outraged, regardless of the existence of a civil war or not.

The bottom line is that, while Mr. Scheffer has nothing but the best interests of the Iraqi people in mind, the execution of his plan could be very risky. State sovereignty is an extremely touchy subject. No country likes to be told what to do by other countries. The Iraqi people need to know that the rest of the world supports them and is here to help them, not just to "baby-sit" them. I know it sounds cliché but, "give a man a fish and he'll eat for a day, teach a man to fish and he'll eat for life." If Iraq is ever to going to emerge as a democratic, self-governing country, the Iraqi people need to be involved every step of the way. Thus, all of the decisions regarding the Saddam trial must ultimately be made by the people of Iraq, regardless of whether or not a civil war arises.

Posted by Warren N Schaefer (email) on 04/01/2006 @ 11:58 AM

Professor Scheffer’s contention that the death penalty must be removed as a possible sentence in the Dujail trial, while consistent with the contemporary abolition movement of the global community, is perhaps not ripe for modern Iraq. To date, 122 countries have abolished capital punishment either by law or in practice. Persuasively emboldening the legitimacy any death sentence imposed on Saddam Hussein would have is striking evidence of the widespread availability and practice of the capital punishment throughout the (geographic) Middle East.

Of the countries that have abolished the death penalty, only three Middle Eastern countries – Turkey (long before EU membership was a possibility) and Turkmenistan by law and Bahrain by practice – have abolished the death penalty for all crimes. Israel has limited the availability of capital punishment for only exceptional crimes. Of the 74 countries worldwide that retain the death penalty, a startling 16 are located in the Middle East. In addition to Iraq (reinstated 2004), the list includes: Afghanistan, Iran, Jordan, Kuwait, Kyrgyzstan, Lebanon, Oman, Pakistan, Qatar, Saudi Arabia, Syria, Tajikistan, the United Arab Emirates, Uzbekistan, and Yemen. Despite how repugnant those who may receive (children) the death penalty, or the methods (death by stoning) by which the death penalty may be imposed, there is no denying its use. Only King Abdullah II bin al-Hussein of Jordan has expressed an interest in removing capital punishment from the country’s penal code.

Rightly or wrongly, widespread availability and use of capital punishment in the Middle East suggests the death penalty is an acceptable and legitimate means of punishment in the region. Indeed, as Professor Scharf explained in Issue #4 below, the Iraqi Special Tribunal judges insisted on the availability of the death penalty in the Dujail trial. As noted, the Code of Hammurabi has played an important part in shaping the cultural and legal heritage of not only Iraq, but of all cultures and institutions that have evolved from Mesopotamia since 1780 BC when the Code was etched in stone. The importance of the impact and influence the code has played in conditioning culturally legitimatized notions of punishment cannot be downplayed or glossed over. Rooted in the history and culture of Middle Eastern communities and States, the death penalty cannot simply be taken off the table.

Professor Scheffer rightly asserts his concern over the possibility of increased insurgent violence a martyred Saddam might invite. But what end does the specter of Saddam serve? The influence of the Code of Hammurabi makes it clear that the only real concern over a criminal is the concept of retribution: when and how the criminal is to be punished for the perpetration of his crimes. To remove the death penalty from the table now, allowing Saddam to linger, would fly in the face of important legal and cultural heritage, and may severely damage any smidgen of credibility this trial has with the Iraqi people.

Democratic Iraq is in its infancy. The Iraqi people want to move on, they are looking towards a post-Saddam Iraq, and one thing that can facilitate that end is a verdict and punishment that is consistent with the demands and beliefs of its people. I do not mean to propose that the death penalty should continue as currently practiced simply because it is accepted throughout the region. Contrary, death penalty reform vitally needs attention in the region just as it does throughout other parts of the world. But to undertake this experiment in this trial could have the inadvertent effect of depriving the Iraqi people of the verdict they determine just.

Posted by Matthew D'Auria on 03/29/2006 @ 04:18 PM

This is one of the only essays on this website I liked. However, I think the court will never address the jurisdictional issue because there is simply no argument that can be made. The court is illegal because it was created by an occupying power which modified the laws of the occupied country to create it. "Special" courts created for this purpose are illegitimate.

The IST statute was written by foreigners, in English, while Paul Bremer was in command of Iraq. The new Iraqi laws do not incorporate Islamic law, even though most Iraqis are muslim. They are foreign and have nothing to do with Iraq's legal history, which predates Saddam Hussein by more than 1000 years.

The only reason the government is in power is that it is protected by US forces. I always thought that if Saddam Hussein's name had been on the ballot last year, he would have been elected president by a landslide, just because Iraqis are so unhappy with the occupation and the state of chaos resulting from the invasion.

Saddam Hussein makes a legitimate point when he questions the legitimacy of the court, although the authors of this blog do not like the fact that he has interrupted the proceedings to make it. If the court will not rule on the written motion, the defendant should raise the issue at every opportunity until it does.

Although the legitimacy of the court cannot be established, proponents of the IST make a valid point that no other forum exists. The ICC has no jurisdiction over crimes that occurred before the ICC was created. The next argument is that the UN cannot be relied on to create an international tribunal, as was done for Yugoslavia and Rwanda, because too many countries would oppose it. But isn't this the real problem with the tribunal, that most of the world thinks the invasion and occupation are illegal?

Posted by Paul Wolf (email) on 03/27/2006 @ 10:50 PM

The trial of Saddam Hussein is, as the blog’s name indicates, a potential Grotian Moment. Still, this is not the primary reason why we must safeguard the security of the tribunal. Most likely, the average Iraqi citizen could not care less about the implications the Hussein trial will have on international law. Rather, I would suppose that the average Iraqi is more interested in the stability of his or her government so that all Iraqis may lead a normal life.

A world away, etched on the New York State Supreme Court Building in lower Manhattan, are the words “The true administration of justice is the firmest pillar of good government.” These words were written by a man whose country, like Iraq, had also just escaped the firm grasp of tyranny; George Washington in the newly formed United States. The ability of the Iraqi’s to govern their land is the real reason why everything that occurs in this tribunal, from it’s security to its perceived legitimacy, is do critical.

Mr. Scheffer makes two excellent suggestions about what needs to be done with this tribunal. The first is that the Court must put forth a well written opinion that alleviates any doubt as to the court’s jurisdictional legitimacy. Questions of jurisdiction, while particularly conspicuous in this case, are not a sign of weakness. In fact, all U.S. courts must first address jurisdictional issues in even the most mundane of cases (F.R.C.P. 8(a)(1)).

Mr. Scheffer also suggests that the death-penalty be removed as an potential punishment. I agree with Mr. Scheffer for all of the reasons that he articulated. I would also add that because the death penalty has been abandoned by much of the world, that the perceived legitimacy of the proceedings can only be compromised by Hussein’s execution.Of course, as Mr. Jones suggests, any attempts to remove the death penalty must arise sans western interference via a motion by the prosecution or sua sponte by the Court.

Lastly, Mr. Scheffer opines that subsequent tribunals should be moved out of Iraq. On this point I must respectfully, yet strongly, disagree. It seems that both Mr. Scheffer and I desire the same end; a tribunal that is perceived to be legitimate that furthers the stabilization of Iraq. What we disagree on, I suppose, is the means. A major concern of Mr. Scheffer is that the Iraqi Court lacks the international support that other similar tribunals have enjoyed. Perhaps that is what makes this trial so significant and a Grotian Moment. It is not the UN, nor the US, that is or should be the harbinger or justice in Iraq; it is Iraqis in Iraq. The point of maintaining the trial in Iraq is not to keep the US from swallowing its pride, but to keep Iraqis from swolloing theirs. I don’t know if they have enough pride to swallow at the moment. Rhetoric aside, the tribunal is empowering for Iraqis and its removal is potentially empowering to the insurgency. I'm sure that we all wish to avoid hearing any more propaganda about how the western world is waging a war against Islam via remote trials in Washington, Guantanamo, and the Hague. If we are to swallow our pride then it should only be to send Iraq the necessary amounts of troops and resources and thereby allow the Iraqis to erect their firmest pillar in Iraq. History is watching.

Posted by Jacob Uriel (email) on 03/26/2006 @ 11:47 PM

David Scheffer raises many important issues that may affect a looming Iraqi civil war: (1) standards of due process (2) trial location (3) capital punishment. While Scheffer advocates a noble view, following his directives will not promote peace and stability in Iraq.

In the context of civil war and due process, Scheffer forgets that this trial is about Iraqi justice. While international standards of due process may legitimize the trial in the eyes of westerners, it is more important to appease Iraqi standards of justice. Accordingly, Iraq’s current standard of due process is not even remotely comparable to the Saddam era. Additionally, Scheffer’s assertion that judge Rahman should be removed on the basis of conflict of interest is unfounded. Rahman’s Kurdish ethnicity, in itself, cannot be equated with bias as Leila Sedat so eloquently demonstrates in Issue # 33. It would be difficult to field a panel of judges under Scheffer’s standard because few groups in Iraq have evaded Saddam’s oppression.

Relocating the trial outside of Iraq’s borders will only weaken legitimacy and reinforce the insurgency. The Iraqi people holding the trial within Iraq’s own borders has great symbolism. The trial represents the confrontation between the new and old Iraqi governments and, by relocating the trial, we would usurp the new government’s authority. Such action would destroy three years of progress and provide the insurgency a legitimate cause. Further, Scheffer’s motives for moving the trial are self serving because such a move would likely entail UN participation, which would automatically result in two implications: (1) no death penalty, and (2) international standards of due process.

David Scheffer believes the death penalty will turn Saddam into a martyr and fan the flames of the insurgency. This argument has some merit, but Scheffer neglects to address the ramnifications of a life sentence and multiple trials. If Saddam Hussein is not given the death penalty he will linger over Iraq like an ominous cloud. Currently, Saddam’s most dangerous weapon is his voice and as long as he is on (televised) trial he will be able to use this weapon (See Milosevich Trial). Saddam could not possibly ask for a better stage to encourage the insurgency. Further, as long as Saddam is imprisoned in Iraq, the insurgency will have a leader to rally behind. Dead, he may be a martyr, but alive he retains the potential of either being freed or pardoned during a civil war. Finally, unlike the Milosevich trial, Saddam has multiple co-defendants therefore justice and the record can be preserved in Saddam’s absence.

Posted by Joseph Oliker (email) on 03/26/2006 @ 08:02 PM

Sadly, the time for debating whether or not Saddam will face the death penalty has past. I can't imagine a Shiite government not executing Saddam. I also think that of all the places the US should try to get tough with the Shiites, this is fairly down on the list. (Somewhere behind the death squads, the Iranian conspiracies, and rewriting the consitution.)

While relocating the trial makes sense, it seems to late for that as well.

In terms of due process, the only thing protecting due process is that Saddam happens to be guilty. If he were in fact innocent,...

Posted by Dale Bearhnardt on 03/26/2006 @ 04:31 PM

I agree with Scheffer's first point, on the issue of due process. As I stated in another comment, the issue of jurisdiction must be addressed in order to establish the legitimacy of the court. This is an essential requirement for due process. It cannot be ignored. If the court believes the issue is unarguable, let it say so and give its reasons, and the court will be done with it. Until it is properly dealt with, however, the IST cannot garner the respect of the legal world. Judge Rahman should also be recused because of his personal interest in the case.

I do not agree with Scheffer's second point, that the death penalty should not be an option at this point. Why should Saddam get off any easier than any other criminal just because of his former and current position in Iraq? Justice would not be served if he were found guilty of murdering children and ravaging villages and he were not sentenced to death simply because of fears that he would be seen as a martyr and that violence would ensue. Matthew Jones is correct: Saddam will be seen by some as a martyr whether he is executed or not. The IST will not garner respect by giving in to fears of the insurgents. I do agree with Scheffer that sentencing Saddam to death in the first trial would cause problems with subsequent trials, but the answer is not to disregard justice in this first trial.

I agree with Matthew Jones regarding Scheffer's third point. Maybe the trial should be moved to a more secure place. Obviously, we do not want any more people connected with the trial to be killed or to be too frightened to participate in the proceedings. However, this trial must be a trial by the Iraqi people against Saddam. Therefore, I agree with Jones that the IST must decide whether to move the trial.

Those in charge of Saddam's trial must not make concessions derived from fears of violence from insurgents. Concessions like removing the option of the death penalty will only prove to the insurgents that the violence is helping them get what they want. I think the court should proceed forward as it has been, after quickly dealing with the issues of due process, and wrap up the trial as quickly as possible, to avoid as much violence associated with this trial as possible.

Posted by Katherine Middleton (email) on 03/25/2006 @ 10:25 PM

David Scheffer argues that three things must be guaranteed for the Saddam trial to have a chance: international standards of due process, no death penalty, and a plan to move the trial out of the country. While he makes some interesting arguments, some of his conclusions need to be reexamined.
Paul Williams, who ghost-wrote the Iraqi Constitution, said he was struck by how insistent the Iraqis were that their government be an Iraqi government. They did not want the UN to mold Iraq into another Kosovo or Bosnia. Even with the violence that was and is occurring the Iraqis are willing to work to create a government and constitution that represents their values, rather than adopting some easy-bake pre-made model. This attitude needs to be given a great deal of deference. After all is said and done, it is the Iraqis who will either live under the newly established government, or reject it and turn to civil war. This brings us to Mr. Scheffer’s first required guaranty, that the court must use international standards of due process. Many of the current problems in the Middle East are due to past Imperialism which ended decades ago. There is an extreme distaste in the region for anything which revives the specter of Imperialism. As important as I think the various due process rights are, I think it is more important for the success of the trial that the Iraqis believe that this is their process.
Mr. Scheffer’s second point, that capital punishment must not be used, is equally problematic. Death is a traditional sentence for a variety of crimes in the Middle East. Any attempt to pressure the court to not use death as a sentence will be seen by many Iraqis as the Imperialistic West trying to force western standards on the people of Iraq. This can only hurt the credibility of the tribunal.
Additionally, the execution of Saddam may not be bad for peace in the region. Those that want to see Saddam as a martyr will view him as such whether he is executed or sentenced to life in prison. The only difference will be that he will continue to be an active part of stirring up the people instead of just a symbol. As long as he is alive, many will live in fear of the possibility of an eventual return to a Saddam government. If he is executed, it will be easier to take that option off the table and move on.
Mr. Scheffer’s third issue, creating a plan to move the trial, is a good point but must be handled with the utmost care. For the reasons already mentioned, the biggest threat to the credibility of this trial is the belief that it is not an Iraqi process. While it is foreseeable that eventually the trial would need to be moved in order to protect those involved, this should only be done as a last resort. Furthermore, the only way to pull this off and still retain the trial’s credibility with the Iraqi people, would be to ensure that it is an Iraqi decision. The Iraqi government and the court involved need to be the ones that form and execute any plan for moving the trial out of the country. Anything less will merely add fuel to the insurgency’s claims of Western occupation.

Posted by Matthew Jones (email) on 03/24/2006 @ 12:46 PM