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Is it legal?

Ian Douglas

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He tried to kill daddy, now junior will do away with him. To the decade-long debacle that future historians will doubtless see as the greatest political and financial scandal of our times—if not of all time—the United States is bent on compounding the fleecing of Iraq with a travesty of justice that adds insult to injury upon ordinary Iraqis.

One would hardly believe one’s eyes, but seemingly last Thursday saw the opening of the “trial of the century”—Saddam Hussein and cohorts hauled before a semester abroad version of Court TV. There was barely much difference; instead of Judge Judy we had the backs of the heads of several nameless prosecutors, the proceedings sinking to the depths of faux drama when former president Hussein was admonished for referring to Kuwaitis as “dogs”. It might not have been his most courteous remark, but what kind of court is this? Dressed by his American captors in an “off-the- rack” suit conspicuously missing a necktie, rendered “suddenly ordinary” in the perceptive words of one of the few Western journalists permitted to attend, Hussein, against all odds, actually struck a few chords of sympathy around the Arab world.

What a disaster. Wait, it goes further. Increasingly, there are solemn legal reasons to doubt that when the cameras fall blind Saddam Hussein will face the kind of justice which the memory of his victims screams out for: not a justice of vengeance, which seems all but assured, but a justice beyond reproach which would not only be a step in the right direction for Iraqis (towards reconciliation and a new social contract), but for all peoples everywhere struggling against the abuse of power and pathological megalomania on behalf of their leaders.

But this is the last thing George W Bush wants. With an election fast approaching, the American president faces a dilemma. Give Hussein a fair and open trial and details might come out that point to the clear complicity of the United States since 1982 in arming Saddam’s Iraq and of sitting on its hands through his most terrible atrocities—the gassing of 5000 Kurds in Halabja in 1988, the killing of as many as 100,000 Kurds in the Anfal genocide in 1986-88, the violent suppression of the uprising of Shia and Kurds in 1991 which cost the lives of at least 30,000 Iraqis. On the other hand, deny Hussein a fair and credible trial and the new Iraq could collapse around Bush’s ears just as he gears up to fight for a second term. Bush is hardly playing it safe in going for the second option.

Flaws in procedure are already wide-open. First, take Saddam’s prisoner of war (POW) status and accompanying rights. Contrary to the make- believe of Brig Gen Mark Kimmitt, no one with an ounce of legal savvy could argue that Saddam until now has been “treated in accordance with the Geneva Conventions”. Kimmitt was responding to criticisms registered by human rights organisations and members of Saddam’s 20-strong team of defence lawyers, that Hussein has been denied access to legal counsel, has had no opportunity to contest the legality of his detention before an impartial court, has been denied rights of free communication with family members and, most importantly, has been held until now without any indication he would be charged with a crime. Under the Geneva Conventions such practices are all outlawed. But the United States seemingly cares less, adhering rather to the allusion made in 2002 by Chief Justice William Rehnquist that “in times of war, the laws are silent.”

Was the supposed “legal” transfer of custody of Hussein any less dubious? Not really. Under the Geneva Conventions, following the end of “major hostilities” POWs must be released or, if suspected of serious war crimes, charged. With the transfer of power to the interim Iraqi government coming two days before Saddam’s legal handover, for all intents and purposes the US-UK war against Iraq was over. In such a scenario Saddam, as well as 6000 plus other detainees held by the United States, should have been charged or repatriated. Neither really occurred. Being held by the United States in a prison cell in Qatar doesn’t exactly count as repatriation. And until now, despite all appearances, Saddam Hussein has yet to be presented with a legal charge sheet. As for the 6000 plus others, are they criminal suspects under Iraqi authority? What court of law in the new sovereign Iraq has ordered the detention of these individuals?

Bush is well aware of the mess he is in. Officially as a POW, Hussein could only be tried by a US courts martial. This court would have jurisdiction only over crimes of war committed since the beginning of the hostilities that defined the state of war in question. As far as is known, while scores of American and British troops died in the period before Bush called an end to “major operations” last May, Iraqi forces did nothing in 2003 outside of the just laws of war when acting under Saddam’s direction in defence of their country. Hussein, therefore, could not be held culpable for a crime before a US courts martial.

He had to be transferred. But this posed several problems and arguably still does. First, Iraq is a state with the death penalty on its books. Though suspended by Paul Bremer, his moratorium could always be overturned to allow a capital charge against Saddam. Looking good for Bush. The problem, however, was—perhaps still is—for the UK. The coalition that invaded Iraq was primarily a US-UK alliance. The UK, as party to the European Convention for the Protection of Human Rights and Fundamental Freedoms is legally obliged not to extradite, or in any manner surrender legal or physical custody of, individuals to a country where they may face the death penalty. Salem Chalabi, head of the special tribunal set up to prosecute Hussein and other “high value detainees”, has been less than discreet in calling publicly for the death penalty to be available in the case of Saddam. In the words of one of Hussein’s defence lawyers who spoke to Al- Ahram Weekly, Chalabi is “as impartial as an executioner”.

On 29 June, 24 hours before he was transferred, Saddam’s legal defence team filed a case against the UK with the European Court of Human Rights (ECHR) for urgent interim measures. The petition was dismissed the same day. Aware of this decision or not, it is conspicuous that UK Foreign Secretary Jack Straw promised on 15 June to make “very strong representations” to the Iraqis not to invoke the death penalty in the case of Saddam, while following transfer on 30 June—one day after the ECHR ruling—Downing Street indicated it would “respect” the decision of the Iraqi interim government to restore the death penalty. The ECHR in Strasbourg, meanwhile, refuses to give reason—as per standard practice—for the denial of the interim measures petition. A similar outcome beset a petition filed to the Inter-American Commission for Human Rights. By time of going to press, no one there was available for comment.

The second problem with transfer is that Saddam arguably enjoys immunity under the pre- 2003 Iraqi constitution. As he can only be tried for acts that were offences at the time they were committed, Saddam can, as a former—some argue incumbent (given that the US-led invasion that deposed him was illegal under international law)—head of state, claim to be beyond the reach of Iraqi national law. He is not, however, beyond the reach of international law. Without doubt, there is a case to be answered on counts of genocide and crimes against humanity. These things happened when they are said to have happened—that much is certain. But for Hussein to be tried in the name of international as opposed to Iraqi law, an independent tribunal like those established by the UN Security Council to prosecute war crimes in the former Yugoslavia and Rwanda must be formed. An alternative would be to hand Saddam to the International Criminal Court (ICC). But given that Iraq is not a state party to the statute of the ICC, the Security Council would have to act by referring the case. In either instance, it would be difficult to impossible for Bush et al to control the flow of information coming from such a trial. More importantly, it would not be permitted for either court to wield the death penalty.

Don’t, in other words, expect an international tribunal for Saddam anytime soon.

Hoping that no one exploits cracks in the legal procedure (under what law is Hussein now detained?), Bush has seemingly given Saddam to his clients in Iraq in full knowledge that sooner or later they will execute him. If Bush wins a second term, all will be plain sailing. Saddam will be gone by the time he retires. If he doesn’t win, however, it won’t be so comfortable, but still it is survivable: though he wouldn’t enjoy official immunity as a sitting head of state, Bush would neither have any obligation to appear before what is essentially a national prosecution. This is the real genius of ensuring that “Iraqis” not the international community try Saddam Hussein. It would not have been so easy for Bush and his buddies to evade the authority of an international court established under the jurisdiction of the UN Security Council. Perhaps an applicable question is, on what grounds would the US oppose the formation of such a court now if the war crimes tribunal in Iraq were proven inadequate to its task?

It wouldn’t be hard to do. Not only is it alarming that Saddam’s Iraqi prosecutors are ignorant—according to reports—about international law, there are very good reasons to regard the Salem Chalabi tribunal as neither independent nor impartial. In addition to being funded by the Americans to the tune of $75 million for the period 2004-5, Salem is the nephew of Ahmed Chalabi (once favoured doyen of the US Department of Defense who founded the Iraqi National Congress and sought to depose Hussein for more than a decade) and is directly connected to the Bush administration through Douglas Feith, undersecretary of defense for policy. Feith, a leading neo-conservative, now responsible for dishing out reconstruction contracts in Iraq, was co-author of the infamous “Clean Break” policy document that in 1996 proposed the ousting of Saddam Hussein as the first step towards reshaping the Middle East in Israel’s favour. Feith’s partner until 2001, Marc Zell, is “marketing consultant” for the Iraq International Law Group (IILG) which trades on opening to its clients “the new Iraq’s huge economic potential”. The IILG was founded by Salem Chalabi.

Incestuous business interests are but part of the picture. Many positions in the former Interim Governing Council (IGC) were distributed according to the patronage of Ahmed Chalabi. Inevitably, the IGC was the pool from which was drawn the new Iraqi interim government --Ali Allawi, minister of defence, and Iyad Allawi, Iraq’s new prime minister, are relatives of Chalabi. While Salem Chalabi heads the tribunal charged with bringing Saddam Hussein to trial, the interim government, packed with relatives and friends, last week decided to reinstate the death penalty in Iraq, undoubtedly with Saddam in mind.

“Who could establish that it’s not impartial?” asked Claudia Perdomo, spokesperson at the ICC, in an interview with the Weekly. While it is true that Salem’s tribunal, like all tribunals of its kind, has free reign to decide for itself what cases fall within its competency, the tribunal that will try Saddam must, like all courts of law, establish its legitimacy before public opinion. If graft and nepotism—still less, international imperialism—are seen as driving forces behind legal proceedings against Saddam, the tribunal won’t last long. “When one country illegally invades another country,” Curtis Doebbler, the sole American lawyer on Hussein’s defence team, told the Weekly, “it is extremely difficult for the invader to legitimise its courts in the illegally occupied country.” PR stunts are not enough. Pundits in the new US Embassy in Baghdad may think that Arabs are gullible, but just like the stage-managed tearing down of the 40ft statue of Saddam Hussein in Firdos Square, 9 April 2003, last week’s masquerade is a public relations disaster waiting to explode. You cannot spin vengeance or empty legal procedure. If the US military is trying, then the US is controlling the trial. Given all the presidential palaces they bombed on intelligence that Saddam was there, one may say it has been established that the US is not an impartial party.

Why do they want to shut him up? Quoted in Asharq Al-Awsat and Al-Hayat in late December, Iyad Allawi hit the nail on the head: “Saddam Hussein’s trial would not be public since he could name countries and persons whom he gave money.” As John Fawcett, co-author of a report on Saddam’s finances published by the Coalition for International Justice, told the Weekly, “Saddam began establishing his financial network in Switzerland and Liechtenstein in the early 1970s. It branched out to France and the UK afterwards. US banks were used for laundering the money he stole from Iraqi oil sales in the 1980s. The US was an energetic backer of Saddam in the 1980s. The Reagan and Bush administrations continually broke US laws in arming and equipping Saddam’s government and ignored kickbacks and financial corruption.”

Bush doesn’t need headlines like this in an election year. Neither do others, elections or not. Noteworthy in this regard was a commentary published in the Jordan Times last Friday cautioning against the wisdom of continuing with Saddam’s trial. To do so, the piece opined, could be “a huge mistake” exposing “the silence or complicity of several key countries” if not “the entire international community”. Jordan, especially, provided extensive banking support to Hussein and his family over the past 30 years.

“It’s stunning, really,” says Fawcett. Estimates of how much Saddam fleeced from Iraq over the 30 years of his career range from $40 billion to $140 billion. According to Fawcett, despite attempts to seize many of these assets, it is safe to say that at least $9 billion remains, with around $1-1.5 billion readily available at any time. Saddam dealt with arms and drug dealers, organised crime, money-launderers and terrorists, he says. “Now that the godfather is absent, these international criminals can attempt to extort cash or assets from the gatekeepers such as Swiss or Panamanian trustees or Jordanian, Lebanese or Syrian bankers. We’re right in the middle of this period when the money is moving.”

A show trial in Baghdad means little to Fawcett. “If we don’t tackle the asset search, a trial will have little impact on Saddam’s money being used by international criminals. We will wake up several years from now realising that a whole host of unsavory characters have become far wealthier due to the money Saddam stole from Iraq. But nobody’s watching.”

Published Thursday, July 8th, 2004 - 05:19pm GMT

Article courtesy of Al-Ahram Weekly

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