| 239 →

18 Regime Change and the Trial of Saddam Hussein

Unlike the NATO attack on Yugoslavia in 1999, the Anglo-American attack on Iraq in 2003 was one of the most hotly contested political decisions of modern times. Inspired by the Manichaean, millenarian,¹ and neo-Jacobin ideology of the neo-conservatives,² some of whom demanded that the US pursue ‘an end to evil’ on the basis that ‘there is no middle way for Americans – it is victory or Holocaust,’³ and by the neo-Trotskyite dogma of ‘global democratic revolution’ which President George W. Bush often said was the centrepiece of his foreign policy⁴ (for instance, ‘The establishment of a free Iraq at the heart of the Middle East will be a crushing defeat to the forces of tyranny and terror, and a watershed event in the global democratic revolution’⁵), the invasion of Iraq was attacked by opponents as illegal because, like the Kosovo war, it was never authorized by the United Nations Security Council. Supporters of the war, London and Washington in first place, replied that the attack was covered by existing UN Security Council resolutions. The question of the legality of the war cannot be dissociated from the question of the legality of the subsequent trial and execution of the Iraqi president, Saddam Hussein.

The international system ratified after World War II in the charter of the United Nations bans the use of force in international relations (war) except when a state is acting in self-defence or when authorized by the Security Council voting under its Chapter 7 powers on operations designed to maintain peace and security. These rules of positive international law reflect the long-standing principle that states do not have a right to attack one another, a principle which can be traced back at least to the signature of the Treaties of Westphalia in 1648.

It was in order to bypass this rule that the British and American governments alleged that Iraq was building ‘weapons of mass destruction’ (WMD). It has subsequently been revealed that this was not the case, and ← 239 | 240 → it is now certain that both Washington and London knew as much. But George Bush devoted much of his State of the Union address in 2003 to exaggerating and inventing the threat from Iraq’s WMD. The reason for this tactic was that there were Security Council Resolutions dating from the First Gulf War in 1991 which forbade the country to produce such weapons. Britain and America claimed that these old resolutions remained active and that Iraq’s continued breach of them made their 2003 attack legal.

According to both the British and American governments, Iraq was in breach of UN resolutions 678 and 687. (We shall leave aside, for the sake of argument, the fact that in reality Iraq was not in breach because it was in fact not manufacturing WMD.) They argued that Resolution 1441, voted on 8 November 2002, referred back to those two resolutions from 1990 and 1991 and thereby legalized the attack which eventually occurred in March 2003. Britain and America had advanced exactly the same arguments about Resolution 678 in early January 1998, in justification of their attack on Iraq in December of that year – an attack known as Operation Desert Fox, which for some reason was named after the nickname given to the Nazi field marshal, Erwin Rommel, for his success in North Africa in 1941.6

In fact, Resolution 678 (voted on 29 November 1990) said that ‘all necessary means’ (i.e. war) could be used to enforce Resolution 660 (2 August 1990) and the other resolutions voted since then. Resolution 660 called on Iraq to withdraw from Kuwait. Resolution 678, the one which authorized the use of military force, did so only with the single aim of liberating Kuwait, which duly happened in 1991.

None of the resolutions voted on Iraq between 660 and 678 said a word about ‘weapons of mass destruction’.⁷ These were not mentioned until Resolution 687 was passed, on 3 April 1991, after Kuwait had been liberated. Resolution 687 did impose heavy sanctions on Iraq to force it to abandon its weapons programme but there was never any suggestion that this condition should be imposed by war. Instead, it insisted that Iraq notify the UN that it had accepted the terms laid down, at which point a ceasefire would come into force. Iraq did this in a letter to the UN Secretary General on 6 April 1991, at which point the ceasefire came legally into effect. The Security Council decided ‘to remain seized of the matter’ and this in turn led to the weapons inspection team and the burdensome regime of UN sanctions which lasted, on and off, until 2003. But Resolution 687 did not authorize war; on the contrary, it contained the mechanism for the end of war. ← 240 | 241 →

Resolution 1441, voted on 8 November 2002, did rule that Iraq was in breach of Resolution 687. However, it did not conclude that the ceasefire was therefore no longer in force, as the British and American governments said it did, but on the contrary sent a reinforced weapons inspections mission to Iraq and determined ‘to remain seized of the matter’. By no stretch of the imagination, therefore, can Resolution 1441 be said to authorize war: on the contrary, it gave Iraq another chance to comply with 687, and the weapons inspectors were sent back into Iraq shortly thereafter.

Far from being legal in terms of UN resolutions, therefore, the Anglo-American attack on Iraq interrupted and destroyed the very weapons inspection mission which Resolution 1441 had reintroduced. The inspectors were told to get out by the Americans, just as they had been in 1998 when the team was about to conclude that Iraq had complied with the disarmament requirements, and shortly before the four-day bombing operation known as Desert Fox. The illegality is emphasized by the fact that phrases in the draft resolution presented by the Americans, which would have authorized the use of force, were removed from what became Resolution 1441 after protest by other Security Council members.

It was precisely because 1441 did not authorize war that Britain and America tried to introduce a further Seucrity Council Resolution in February 2003. Their attempts were thwarted by announcements from Moscow and Paris that any resolution authorizing war before the weapons inspection team had reported would be vetoed. It was therefore absolutely clear that the attack, which commenced on 20 March 2003, was illegal under the terms of the United Nations Charter and that, as such, it was a criminal war of aggression.

In any case, all the arguments about weapons were blown out of the water by President Bush himself when he issued an ultimatum to Iraq on the eve of the attack. He said that Saddam and his sons had to leave the country within forty-eight hours or the bombing would start.8 The ultimatum is a recognized device in the customary international laws of war: by issuing it, George Bush made formally clear, as a matter of law, that the purpose of the war was to remove Saddam Hussein and to effect ‘regime change’, not to disarm the country. The day the attack was launched, the British prime minister, Tony Blair, broadcast to the nation that, ‘Tonight, British servicemen and women are engaged from air, land and sea. Their mission: to remove Saddam Hussein from power …’⁹ (although he had earlier misled the House of Commons by saying that Saddam could remain in power if he disarmed¹⁰). Since no UN Resolution had ever authorized war to remove Saddam from power or even to invade Iraq (George Bush Senior had refused to ‘go to Baghdad’ in 1991 for this very reason), the war ← 241 | 242 → was clearly illegal according to Bush’s and Blair’s own terms. Subsequent to the invasion, indeed, and to the failure to find any of the supposed weapons, supporters of the war fell back on the ‘regime change’ argument to justify their acts.

Regime change obviously was the whole point of the exercise. But it is not only unlawful as a casus belli, it is also unlawful after war has been waged and a country occupied. The Hague and Geneva conventions of 1907 and 1949 regulate what countries are allowed to do when they occupy other states. Article 43 of the 1907 Hague Convention says that an occupying power should respect ‘unless absolutely prevented, the laws in force in the country’. Article 54 of the Fourth Geneva Convention of 1949 says, ‘The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience’, and Article 64 provides that the penal laws of the occupied country should remain in force unless they represent a threat to the security of the occupier, and that ‘the tribunals of the occupied territory shall continue to function.’ The authoritative Commentary to the (IV) Geneva Convention edited by Pictet emphasizes that these security-based derogations from the general inviolability of the occupied country’s legal system may not be extended to other areas: ‘The occupation authorities cannot abrogate or suspend the penal laws for any other reason – and not, in particular, merely to make it accord with their own legal conceptions.’11 Article 65 provides that any new penal laws brought in by the occupier should not be retroactive, a principle repeated in Article 67.

In direct violation of these provisions, the Americans in Iraq conducted a wholesale purge of the judicial system, including for the purpose of trying Saddam. The process started when the Occupation Authority led by Paul Bremer abrogated the 1971 constitution of Iraq, but radical political change in Iraq had in fact been the goal of the invasion in the first place. It is now known that the decision to invade Iraq was taken long before 2003, and even before the attacks in New York and Washington on 11 September 2001, and that the idea of promoting regime change in Iraq by means (inter alia) of a criminal trial of Saddam and his colleagues dated as far back as 1998, when the Iraq Liberation Act was passed. Its Section 3 stated, ‘It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.’ Section 6 stated, ‘The Congress urges the President to call upon the United Nations to establish an international criminal tribunal for the ← 242 | 243 → purpose of indicting, prosecuting, and imprisoning Saddam Hussein and other Iraqi officials.’ In 2002 the United States ambassador-at-large for war crimes, Pierre-Richard Prosper, announced that his office had a whole room devoted to collecting material for a future indictment of the then incumbent Iraqi president.12

The goal – apart from controlling Iraq’s vast oil wealth – was to engineer the political transformation of Iraq and the whole Middle East. Many neo-conservative commentators admitted that a ‘democratized’ Iraq was to be the centrepiece of this new geopolitical arrangement.¹³ Former treasury secretary Paul O’Neill has written in his memoirs how an invasion of Iraq was part of the strategy of the Bush team immediately it took office, and that it was discussed at the very first meeting of the new National Security Council on 30 January 2001.¹⁴ At the second NSC meeting, on 1 February 2001, Donald Rumsfeld, the then secretary of defense, explained that getting rid of Saddam should be a key part of US foreign policy: ‘Imagine what the region would look like without Saddam and with a regime that’s allied with US interests,’ Rumsfeld said. ‘It would change everything in the region and beyond it. It would demonstrate what US policy is all about.’¹⁵

The trial of the Ba’athist leaders, especially Saddam Hussein, was a key part of this programme. Detailed planning for this began in the State Department in October 2001, shortly after 9/11, where seventeen working groups were set up to make plans for changing everything in Iraq, from health policy, local government, defence policy, education, media, water, agriculture, the economy and infrastructure.¹⁶ The so-called Transitional Justice Group, created within the State Department, produced a 248-page report in March 2003,¹⁷ which proposed a wholesale destruction of Iraq’s existing legal system and its replacement by a new one. The very first issue discussed in this long report was the need to prosecute the Ba’athist leaders, Saddam in first place.

It was because there had been so much advance preparation for a judicial purge of Iraq that the occupying powers, known as the Coalition Provisional Authority (CPA), shortly after 9/11, were able to set about arranging the trial of Saddam immediately after the invasion. On 23 June 2003, Paul Bremer issued Order No. 15, entitled ‘Establishment of the Judicial Review Committee’. (The decree was promulgated in English, an Arabic translation not being produced until over 100 days later.) It announced the immediate and general suspension of the existing Iraqi laws on the judiciary, and the creation of a judicial committee composed of three Iraqis and three ‘international’ members to review all judicial appointments in Iraq. It would be difficult to imagine a more flagrant ← 243 | 244 → violation of the Article 54 of the Fourth Geneva Convention forbidding the sacking of judges.

This new judicial committee was created to operate ‘at the discretion of the Administrator’, i.e. it was under direct political control. These measures went hand in hand with the de-Ba’athification orders, including the very first order, Order No. 1, issued on 16 May 2003, which removed all senior Ba’ath Party members from public office. The effect of these measures was to purge the judiciary of anyone but enemies of Saddam’s regime, and to ensure total American control over the Iraqi judiciary. The CPA, incidentally, vested itself with ‘all executive, legislative and judicial authority’18 in an act of constitutional pre-modernism in striking conflict with the widely held principle that the separation of powers is a key condition of the rule of law.

On 10 December 2003, Bremer signed Order No. 48 creating the Iraqi Special Tribunal to try Iraqis accused of war crimes, crimes against humanity, and genocide. The order also promulgated the Statute of the Tribunal, which stipulated that it had jurisdiction over the period 17 July 1968 to 1 May 2003, the exact dates during which the Ba’ath Arab Socialist Party held power in Iraq. Order No. 48 therefore violated several fundamental legal principles at one go. It created a tribunal by decree instead of by law. It created a ‘special tribunal’, in violation of Dicey’s principle that people should be tried only by ordinary courts, and also in violation of the rules later set down by the CPA’s own ‘constitution’, the ‘Law of Administration for the State of Iraq for the Transitional Period’, promulgated on 8 March 2004, Article 15(1) of which stipulated (as had the State Department’s March 2003 report by the Transitional Justice Group¹⁹) that, ‘Special or exceptional courts may not be established.’ (In the event, the new Iraqi government issued a law on 9 October 2005, renaming the Special Tribunal ‘Supreme Iraqi Criminal Tribunal’.) It restricted the jurisdiction of the tribunal in time in order to frame specific individuals, the leaders of the Ba’ath regime, a goal in any case affirmed in numerous official statements by American officials, which means that Order No. 48 was effectively a Bill of Attainder, a legislative act directed at the punishment of specific people, something prohibited by every accepted canon of due process including by Article 1, Section 9 of the United States Constitution of 1787. Finally, it ensured that the tribunal would be stuffed with Saddam’s enemies, since Article 33 of the tribunal’s statute specified that no one who had ever been a member of the Ba’ath Party could serve as an official of the tribunal.

The retroactive jurisdiction of the Special Tribunal was also problematic. Unfortunately, the practice of creating tribunals to adjudicate ← 244 | 245 → acts which occurred before they existed has become common in modern international humanitarian law: the International Criminal Tribunals for the former Yugoslavia and Rwanda both adjudicate events which occurred before they were created. Indeed the Rwanda tribunal adjudicates exclusively such events. But this is generally regarded as incompatible with the rule of law. The International Criminal Court, for instance, cannot adjudicate any events which occurred before its statute entered into force and this is why its president said that his court could never try Saddam.20

By the time Saddam’s trial started, on 15 October 2005, the CPA had been dissolved and power handed over to a new ‘sovereign’ Iraqi government headed by Iyad Allawi. The formal handover of power occurred on 28 June 2004. However, the reality of continued American control over the judicial process (and indeed over the government of Iraq) was obvious. In July 2004 the United States government announced that it was spending $75 million on the trial.²¹ When Saddam appeared for the first time in court, on 1 July 2004 for a pre-trial hearing, the TV images which CNN broadcast (without sound) helpfully carried the words ‘Cleared by US Military’ at the top of the screen. The footage had indeed passed first through the hands of the American military censor. The reality and perception of American control of the trial lasted until Saddam’s execution in January 2007: the former Iraqi leader remained in American, not Iraqi custody, throughout and when the Egyptian president, Hosni Mubarak, realized that the execution was imminent, he sent a message to the American president, George W. Bush, to try to obtain a stay of execution.²² If Iraq had been a truly sovereign state, then Mubarak would presumably have petitioned the Iraqi president, Jalal Talabani, instead.

Although the new ‘sovereign’ Iraqi government passed a law reestablishing the tribunal (re-naming it ‘Iraqi High Tribunal’ instead of ‘Special Tribunal’, having called it ‘Supreme Iraqi Criminal Tribunal’ for a few months in August–October 2005), its statute was essentially the same as that drawn up by the Americans in 2003. It was re-promulgated only on 18 October 2005, one day before Saddam’s trial started. The American authors of the original statute had cherry-picked from pre-Ba’athist Iraqi law a 1958 law (No. 7) which criminalized acts of war or threats of war against another Arab state, and they inserted this as a specific crime as Article 14 of the tribunal statute (2003 version). This allowed the tribunal to prosecute Saddam for invading Kuwait in 1990 but not for invading Iran in 1980. The Iran–Iraq war, which lasted eight years, claimed nearly a million lives, and plunged the Gulf into crisis for nearly a decade, was the judicial equivalent of an elephant in the room which no one was permitted to mention. As is well known, the Americans provided help to the ← 245 | 246 → Iraqis during that period, and Ronald Reagan’s personal envoy to the Middle East, Donald Rumsfeld – the man who, as George W. Bush’s defense secretary, masterminded the 2003 attack – visited Iraq on two occasions to meet Saddam Hussein, in December 1983 and in April 1984. According to a Senate report published in 1994, the United States supplied chemical and biological weapons to the Iraqis from 1983 right up to the invasion of Kuwait in 1990.23 Naturally the Americans did not want such uncomfortable facts to come out in court, and so all discussion of the Iran–Iraq war (which had been one of the proximate causes of the invasion of Kuwait) was ruled out. Moreover, as if to emphasize the fact that this was victors’ justice, the CPA Order No. 17 (27 June 2004) specifically awarded the occupying forces immunity from prosecution by the Iraqi courts.

The Prosecution in the Saddam trial decided to adopt the opposite tactic of that adopted by the Prosecution of Slobodan Milošević. Whereas the Prosecution in the Milošević trial insisted that three separate indictments be bundled together, for Saddam, the decision was taken instead to separate them out into individual trials. Some of the people, especially Americans, who had been advisers on the Milošević trial also advised the Iraqi Special Tribunal on the Saddam trial, and it seems that the lessons of the failure of the Milošević trial, which had by then been in difficulty for years, were learned. Instead of focusing on the whole of Saddam’s political career, the Prosecution started with one event in the early 1980s which formed the basis of one trial, reserving other alleged crimes for future trials if the verdict of the first one (by some miracle) turned out to be an acquittal.

The tribunal was a hybrid between a national and an international court, a pattern which has since been copied by the Special Court in Sierra Leone and which was prefigured by the constitution of the War Crimes Chamber of the Court of Bosnia and Herzegovina. Like those two courts, the Iraqi Special Tribunal (renamed Iraqi High Tribunal) has national (i.e. Iraqi) judges but they are ‘assisted by international advisers’. This is a euphemism for American political control. The judges were sent on a training course in London before the trial started and the tribunal is ‘special’ (in spite of its new name) to the extent that it is structurally separate from the rest of the Iraqi court system.²⁴ The first general director of the Iraqi Special Tribunal was Salem Chalabi, an Iraqi exile and nephew of the neo-conservatives’ favourite exile, Ahmed Chalabi, the leader of the opposition party, the Iraqi National Congress. (Chalabi Junior resigned his post after a warrant was issued for his arrest for murder, in September 2004, but not until he had participated in the appointment of judges to the bench.) ← 246 | 247 →

The trial opened on 19 October 2005, and was devoted to events in the town of Dujail in 1982. There had been widespread reprisals against inhabitants of that town after an assassination attempt against Saddam. Saddam was only one of eight defendants: the others included actual perpetrators of or direct accessories to the alleged events in Dujail, for instance local informers and the head of the local revolutionary court which had sentenced 148 people to death. The phrasing of the indictment underlined the reality that the tribunal was an essentially prosecutorial body: the opening phrase says that the presiding judge, by then Abdul Rahman, accuses Saddam Hussein of various crimes: ‘Judge Rauf Rashid Abdul Rahman accuses you (Saddam Hussein Al-Majid) of the following: …’

The occupying authorities and their cheerleaders in the international humanitarian law industry welcomed the trial of a head of state widely reviled in the West as a monster. But the spectacle of such a high-profile trial was less novel for Iraqis themselves. All political change in Iraq in the twentieth century had been violent (with the single exception of the 1968 Ba’athist coup), and it had invariably been accompanied by the elimination of enemies, often by means of trials. When the monarchy was overthrown in the coup of 14 July 1958, the king and a score of members of the royal family were murdered; the corpse of the regent, Abdul Ilah, was dragged through the streets of Baghdad and his remains were dismembered and hung outside the ministry of defence. Other political figures such as the prime minister were also torn apart limb from limb. But the Committee of Free Officers who seized power then established a People’s Court to put ‘enemies of the people’ on trial; Colonel Ahmad Hassan al-Bakr, the future president of Iraq and Saddam’s mentor, himself served on it. The court sent people to the gallows for years: in 1960 Judge Fadhil al-Mahdawi said his special tribunal was unique in history and ‘a light to the world’.25

When Brigadier Kassem, the coup leader, was himself overthrown in the first Ba’athist coup of 1963, the Ba’athists organized a massive purge of political opponents, mainly Communists, the lists of people to be executed having been supplied to them by the CIA.²⁶ After the second (and decisive) Ba’athist coup in 1968, Saddam Hussein (by then Bakr’s deputy, but an all-powerful one) ‘discovered’ a CIA-Zionist plot against the new regime and staged a show trial of conspirators in December: Saddam was in charge of the propaganda and the media was saturated with coverage of the trial. Fourteen of the alleged conspirators, nine of them Jews, were sentenced to death in January 1969, and their bodies were left to hang in Liberation Square for a day. Radio Baghdad urged people to come and see ‘what happens to enemies of the revolution’, and hundreds of thousands ← 247 | 248 → did.27 Indeed, when Saddam himself was eventually hanged, he was executed alongside the chief justice of his own Revolutionary Court which had itself meted out death sentences liberally, and for political purposes. Show trials and abuse of the judicial process as a means of enforcing political power were the norm in Iraq, not some new development. Indeed, the slightly amended version of the statute of the Iraqi High Tribunal, which the Iraqi government promulgated one day before Saddam’s trial started, included offences from the deliciously named law on the ‘Punishment of Conspirators against Public Safety and Corrupters of the System of Governance’ of 1958 – the very laws administered by the notorious Mahdawi court in its show trials after the overthrow of the monarchy by Brigadier Kassem.

The indictment against Saddam made liberal use of the latest developments in international humanitarian law, especially the doctrines of crimes against humanity and ‘joint criminal enterprise’, invented at the Rwanda and Yugoslav tribunals. ‘Joint criminal enterprise’ allows convictions for persons of the worst crimes on the basis of inferred intent (inferred, for instance, from his position of authority), a far lower threshold of proof than that required by other theories of liability.

From the very beginning, the trial was more an opera buffa than a solemn procedure. Saddam, like Charles I, refused brazenly to recognize the authority of the court to try him and he was rude and truculent towards the judge.²⁸ His arrogant tone, and the chaotic nature of the proceedings, were soon overtaken, however, by the assassination of two Defence lawyers, Sadoon al-Janabi and Adil Mohammad Abbas Zubaidi, acting for Saddam’s co-defendants, who were killed on 21 October 2005 (two days after the trial started) and 9 November 2005 respectively. A third Defence lawyer, Thamer Hamoud al-Khuzaie, was injured in the second attack; it is to be assumed that he had also been a target for assassination.

One of Saddam’s own lawyers, Khamis al-Obeidi, was then assassinated on 21 June 2006. Reports at the time said that he was abducted by people wearing police uniforms, and the rumour in Baghdad was that the government had been involved in the killing. Saddam’s chief Defence counsel, indeed, alleged that the interior ministry troops had been infiltrated by Shiite death squads.²⁹ During the trial, the Defence argued that witnesses had also been killed. Throughout the trial, Saddam Hussein was unable to obtain a single confidential audience with his own Defence lawyers, while a full account of the charges against him was not presented until 15 May 2006, six months into the proceedings.³⁰

On 14 January 2006 the presiding judge, Rizgar Amin, suddenly announced his resignation, denouncing government interference in the trial ← 248 | 249 → and saying he was in fear of his life; by then one of his other colleagues on the bench had also resigned. Judge Amin was replaced by Rauf Rashid Abdul Rahman, a Kurd from Halabja who lost relatives in the famous 1988 attack for which Saddam would also have faced trial: he was hardly a disinterested party. (It had been expected that Amin would be replaced by his deputy, Saeed al-Hammash, but he too was quickly sidelined following a political campaign against him.)

While Saddam’s trial for the events in Dujail was still under way, in August 2006, proceedings started in the second trial, which concerned the notorious Anfal campaign in 1988. This was the occasion of the famous chemical weapon attack on Halabja. This time Saddam was in the dock along with his cousin, Ali Hassan al-Majid (‘Chemical Ali’), the man credited with masterminding Saddam’s weapons programme. This trial, which was interrupted by the conviction and execution of Saddam for his role in the Dujail events, was remarkable mainly for the fact that the presiding judge, Abdullah al-Amiri, made a throwaway remark during Saddam’s cross-examination of a witness. The witness, who said that his family had been a victim of the Anfal campaign, said that he had visited Saddam to ask about their fate. The former president asked the witness, ‘I wonder why you wanted to meet me, if I was a dictator?’ Judge al-Amiri interjected, addressing Saddam, ‘You were not a dictator. People around you made you look like a dictator.’ Saddam bowed his head in thanks, and the judge was promptly sacked from the case.

When the tribunal came to rule on the Dujail case, on 5 November 2006 (it did not produce its written judgement until seventeen days later, on 22 November 2006, and the judgement ran to 300 pages), it convicted Saddam and sentenced him to death. But it did so without even having bothered to demonstrate that Saddam did, in fact, have knowledge of or culpability for the events in Dujail. It inferred his culpability (and that of his co-defendants) from their various official positions. The court concluded that the defendants ‘must have known’ about the various acts, without actually providing any proof that they did.31 Similarly, it offered no proof for the existence of a joint criminal enterprise but just said that there must have been one. The Trial Chamber ruled that Saddam must be guilty for Dujail because he was generally guilty of ordering arrests, even though it admitted that no actual evidence had been presented that he ordered the torture or the killings. At one point, the chamber absurdly found that a report submitted to Saddam in 1987 saying that forty-two people had died during interrogation after Dujail in 1982 proved that he had known about these crimes at the time and failed to prevent them. ← 249 | 250 →

In the case of Barzan al-Tikriti, whose actual participation in some of the acts of torture and murder in Dujail are not reasonably in dispute, the tribunal concluded that he was responsible for all the acts committed in Dujail, even those committed after he had left the national government in Iraq to become the Iraqi government representative on the UN Commission on Human Rights in Geneva. Other grounds adduced for his criminal liability were that he was Saddam’s half-brother – not exactly judicially watertight reasoning. It was on the basis of such unacceptably low standards of proof that al-Tikriti, like Saddam himself, was executed.32 No doubt people will feel that men like Saddam and Barzan al-Tikriti deserved their fate, but the same cavalier attitude to evidence was also applied to the very low-level perpetrators who stood alongside them in the Dujail dock: a farmer, a postman, and a mechanic. These local men may have contributed to arrests, but the tribunal found that they were in fact co-perpetrators of the joint criminal enterprise and therefore guilty of crimes against humanity as well. It reached this conclusion on the basis that ‘everyone knew’ what would happen to people who had been arrested. They were given long prison terms.

These low standards of proof were aggravated by the fact that the identity of the Prosecution witnesses was unknown to the Defence until the moment they appeared in court. Most of them were physically invisible to the court. This practice of using anonymous witnesses has become widespread in international tribunals, and it is extremely dangerous because it seriously hampers cross-examination by the Defence. In addition, exculpatory evidence was withheld from the court: Another defendant, Anwad al-Bandar, the former president of the Revolutionary Court, insisted that his own court’s procedures had been fair. He asked repeatedly, from April 2006 onwards, for the relevant file to be submitted to the court, but it was withheld until after the close of the Defence case.

When the verdict was read out, Saddam refused to stand to hear it. The judge ordered a court official to make him stand, and they forced him to his feet. ‘Stop twisting my arm, you oaf!’ Saddam complained, and stood up. When the death sentence was read out, Saddam shouted, ‘Long live the great Iraqi people! Long live the nation! Down with the traitors! Down with the occupiers! Allahu Akbar! You are the servants of the colonizers! Long live the people and death to its enemies!’ One of his Defence lawyers, the former United States attorney general, Ramsey Clark, handed the judge a written motion denouncing the trial and its irregularities. The judge glanced at the document and said to Clark, ‘Get out!’³³

The case went to appeal. The Appeals Chamber itself was constituted only on 12 December, and it delivered its ruling on 22 December. It issued ← 250 | 251 → a seventeen-page ruling on the Trial Chamber’s 300-page judgement, dealing with the procedural aspects of the trial in one nine-line paragraph. This recalled the cavalier manner in which the Defence counsel at the trial of Nicolae Ceauşescu had repeatedly stated that those proceedings were legal. As at Vidkun Quisling’s appeal, the Appeals Chamber embellished the ‘findings’ of the Trial Chamber (although without any evidential justification) saying that Saddam had personally supervised and ordered the torture and the killings at Dujail, whereas in fact the Trial Chamber had simply said that he must have known about them.34

Saddam Hussein was executed in the early hours of 30 December 2006, Iraqi time. Hooded men tied the noose and cries of ‘Moqtadr’ went up as he prepared to die: Moqtadr al-Sadr was the radical Shiite cleric whose followers had represented a threat to Saddam even when he had been in power.³⁵ Saddam looked down disdainfully at the men baying for his blood and said, ‘Is this the way Iraqi men behave?’³⁶ The trap door opened and he was filmed as his neck cracked and his head swung from the noose; video images of the execution circulated immediately on YouTube. The international outcry was nearly unanimous, at least in Europe, where leaders shed crocodile tears at the carrying out of a death penalty long since banished from the old continent. The American president, however, welcomed the hanging. ‘Today, Saddam Hussein was executed after receiving a fair trial,’ George W. Bush said in a prepared statement, ‘Bringing Saddam Hussein to justice … is an important milestone on Iraq’s course to becoming a democracy that can govern, sustain, and defend itself, and be an ally in the War on Terror.’³⁷

Saddam, meanwhile, spoke from the grave when a letter he had written on the eve of his execution was published. He wrote,

Here, I offer my soul to God as a sacrifice and if He wants, He will send it to heaven with the martyrs, or, He will postpone that … so let us be patient and depend on Him against the unjust nations … Remember that God has enabled you to become an example of love, forgiveness and brotherly coexistence … I call on you not to hate because hate does not leave a space for a person to be fair and it makes you blind and closes all doors of thinking and keeps away one from balanced thinking and making the right choice.³⁸