Issue #13: Does Saddam Hussein Have a Viable Defense Based on the Necessity to Combat Insurgents and Terrorists?

NO: by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 172 (2006).

In the first trial of the Iraqi Special Tribunal scheduled to start on October 19, 2005, Saddam Hussein and several of his lieutenants will be prosecuted for the attack on the Iraqi town of Dujail in 1982 – an attack which involved the killing of 150 townspeople, the destruction of their homes and businesses, and the burning of the surrounding date palm groves. Under the headline, “Saddam Expects to Prove Innocence, Lawyer Says,” (USA Today, October 13, 2005), Saddam Hussein’s lawyer, Khalil al-Dulaimi, is quoted as saying: “Saddam Hussein was on a visit to this village [Dujail">, and he was subject to an assassination attempt. Punishing those who carried it out is justifiable all over the world. Any president in the position of Saddam would do the same thing.”

Wiping a town out in retaliation for an assassination attempt is certainly not a legitimate defense, but attacking a town to root out terrorists and suppress an insurgency may be another matter.

To prove this line of defense, Dulaimi might call former US President Bill Clinton or other members of his administration to testify in Baghdad or through video link from the United States. After all, in 1993, Clinton ordered the launch of 23 cruise missiles to strike the Iraqi Intelligence Service Headquarters in downtown Baghdad when the U.S. learned that Iraq was behind an attempt to assassinate former President Bush during a visit to Kuwait. Cruise missiles are a blunt instrument when fired into a populous residential area, and numerous civilian casualties were reported. “If Clinton’s action was justified in response to an assassination attempt,” Dulaimi will ask, “why wouldn’t Saddam’s be?”

Or Dulaimi might call US General George Casey, who currently commands the U.S. forces in Iraq. Just last week, (October 4, 2005), General Casey ordered the US military to launch a major offensive against three small towns in the Euphrates River valley (Haqlaniyah, Parwana and Haditha), which were reportedly being used by insurgents and members of the al Qaeda terrorist organization as a base of operations in Iraq. The attack, code-named “River Gate,” involved air strikes from U.S. warplanes and helicopters, followed by an assault by 2,500 U.S. and Iraqi government soldiers. Most of the buildings in the towns were destroyed, and hundreds of Iraqi casualties were reported, including civilians who were “unavoidable collateral damage.” Similar operations have been conducted across Iraq in an effort to “uproot” terrorists and insurgents, and to “suppress” terrorist and insurgent attacks in the months leading to the vote on the Iraqi Constitution. In the context of this aggressive campaign against Iraqi terrorists and insurgents, the Iraqi Department of Health has reported that the US and Iraqi armed forces have been responsible for twice as many civilian casualties than those caused by insurgent and terrorist attacks. “If civilian casualties are acceptable collateral damage for General Casey’s troops in their effort to stamp out al Qaeda and suppress insurgency in Iraq in 2005,” Dulaimi will ask, “why not for Saddam Hussein’s troops facing the same type of threat in 1982?”

This defense strategy would be similar to that successfully employed by counsel for German Grand Admiral Karl Doenitz before the WWII Nuremberg Tribunal. Doenitz was charged with conducting unrestricted submarine warfare in the Atlantic. His lawyer proved (with an affidavit supplied by US Admiral Chester Nimitz) that the American navy did the exact same thing in the Pacific conflict. The Nuremberg Tribunal ruled that Doenitz was not guilty of the charge, since international law could not be said clearly to prohibit unrestricted submarine warfare in light of the fact that all sides were engaging in the practice, believing it to be lawful.

These will be tough questions for the prosecution to respond to, and certainly the line of questioning will raise questions of moral equivalence that may be uncomfortable for the Bush Administration.

For an answer, the Prosecution is likely to turn to the 1969 case of United States v. Calley, one of the most important war crimes trials of the Vietnam war era. The Defendant, Lt. William Calley was charged with commanding troops which executed 102 civilians at the South Vietnamese town of My Lai in 1968. In defense, Calley said that he had received orders by radio to destroy the town, which was being used as a base of operations by the Viet Cong, and to kill all the townspeople since it was impossible to distinguish Viet Cong insurgents from innocent civilians. This was in essence, the same exact argument that Dulaimi is likely to make on behalf of Saddam Hussein and the other defendants in the Dujail case. The Court rejected Calley’s obedience to orders defense, finding that an order to kill all of the townspeople, including babies, children, and frail elderly persons, was a manifestly illegal order. The Court reaffirmed that under international law, a person can be held criminally liable for ordering such an atrocity, and that subordinates have a duty to disobey such an illegal order or they too can be held liable for carrying it out.

Posted @ 4:46 AM | Experts Debate the Issues: The Dujail Trial