Legality and the Saddam trial

Throughout many long portions of its life, Saddam Hussein’s regime had a record as a rights abuser and perpetrator of atrocities equaled by few other governments in the world. Under most circumstances I would be delighted to see a person like that not just incapacitated (by being under arrest) but also on trial, and confronted with as full as possible a record of how much sheer misery his actions had inflicted on other people.
The trial now underway in Baghdad, however, has many flaws; and not the least of these is the fact that it attempts to create an impression of lawfulness in a situation marked indelibly with the politics of “might makes right”.
The international human-rights community seems fairly deeply split over the issue of this trial. (Or is that only the way it looks from here inside the US?) Many rights advocates around the world focus on the illegality of the US invasion and occupation of Iraq as a factor that has irreparably tainted this court— which is indubitably a US creation (with a tiny, supplementary input from Brits and from Iraqis)– and prevents it from having have any recognized legal standing as a rights-based body. Other rights advocates have focused more on details like the weaknesses in the IST’s due-process protections or its power of capital punishment.
Yet other rights advocates, however– and these are mainly US nationals– seem to have been so enamored with the idea of “pushing forward the practice of atrocities law” and/or with the success of the US “project” in Iraq, that they have been quite happy to leap with a single bound over all those pesky questions about the “legality” of the Iraqi Special Tribunal, or the “weaknesses” in the court’s procedures, etc, and to give their full support to the IST throughout. Some of these individuals– including, for example, Michael Scharf of Case Western Reserve University Law School in Ohio– even took on the task of providing specialized training in atrocities law for the IST’s judges and investigators, on behalf of the US occupation authorities.
The questions about the underlying legality of the court’s operations have not, however, gone away– and neither has the discussion within the community of US-based human-rights lawyers over whether this issue indeed still needs to be addressed square-on by the IST itself before the court can proceed any further with its work, or not.
Last week there was a revealing discussion of this over at “Grotian Moment“, a specialized blog in which a panel of US-based law profs discusses the Saddam Trial from time to time.
In that post I linked to there, half a dozen of the blog’s author’s discuss the question, Who Won the Battle of Wills In the December Proceedings of the Saddam Trial? Well, the post was dated Dec. 14, so they didn’t have quite all the evidence they needed at that point. But in broad terms, the court’s proceedings of yesterday and today don’t seem to have changed very much in the trial.
The most interesting parts of that discussion, imho, are the contributions made by Cherif Bassiouni, a very eminent Egyptian-American legal scholar whom I have had the privilege of working with a little bit, and Leila Sadat, a law prof who is also (I think) an Egyptian-American.
Here’s what they said:

Professor Cherif Bassiouni:
I’m presently in Egypt where Arab television is covering the trial extensively. The problems I anticipated [e.g., here ~HC] have materialized, and I’m afraid that the defendants and their lawyers will cause a lot of havoc.
I understand from my contacts in Iraq that this is turning into a spectator’s sport, where people are keeping score on who is making points in the oral debates. Obviously, the ability of the defendants and their lawyers to cause difficulties in the proceedings is succeeding. My impression is that there are two distinct scenes that are playing out contemporaneously. The first is the witnesses’ testimony which is touching people’s hearts, and the defendants and their lawyers, which are playing on national pride since the trial is seen in part as being the US vs. Saddam. In short, it is like having a 2-ring circus.
Professor Leila Sadat:
As a matter of strategy, I think that Saddam does himself a disservice by not showing up, because with the Sunni insurgency, and at least some Iraqis and other Arabs, he is making good points about the legitimacy of the proceedings that he just cannot make if he doesn’t appear. In fact, I think that he was doing quite well, although, as Cherif notes, there is also tremendous sympathy for the victim’s of the crimes. What does he gain by not appearing? Very, very little, in my view, maybe a better suit, or cleaner clothes, but as a strategic matter, it doesn’t make sense for him not to appear, making me wonder whose idea it really was. [Note that he did reappear in court for this week’s two sessions ~HC]
Saddam’s antics are of course legally irrelevant to the questions posed by the Dujail indictment, but the issues that his defense team is trying to raise about the legitimacy of the entire affair are completely relevant and unfortunately, will never really be aired. No one can feel sympathy for Saddam, particularly hearing the testimony of the survivors. But the question remains whether Iraqis might come to hate the United States and everything about it even more than they despise their former leader, and there is enough of a grain of truth in his categorization of the Iraqis participating in the trial as “collaborators” that he may ultimately win a great deal of public support for that position. Thus, there is a real risk that this trial may exacerbate rather than ameliorate that reality. Abu Ghraib, the alleged use of incendiary phosphorus again civilians, estimates as high as 100,000 Iraqi deaths (recall that the Nato bombing campaign had fewer than 500 total casualties, even by Serb estimates) — these stories turn the U.S. effort to make this a real time morality play into hypocritical words, at best. It seems to me that most U.S. commentators on the trial simply brush aside the “technical” issue of the court’s establishment by an occupying foreign power that killed thousands, maybe hundreds of thousands, of Iraqis in order to give Iraqis the “privilege” of putting their former leader on trial (at a cost of $US 130 million). Yet the Iraqis live with that reality daily, which is why, even though so many of them hated Saddam, they sympathize with opponents of the U.S. (and the tribunal).
… At best, there will be an uneasy truce — Saddam and his retinue will be executed, the U.S. will pull out, and Iraq will be poorer and less stable than before. Whether or not Ramsey Clark is involved in organizing the defense, I think the outbursts and antics are a logical approach for Saddam to use, given that he has been given no real legal forum in which to challenge the legality of the tribunal. Indeed, I note that proceedings have not been stayed so that the tribunal can consider the allegations of illegitimacy, presenting yet another striking difference between the conduct of these proceedings and international tribunal proceedings — think about the carefully reasoned and very important decisions in the Tadic case [at the Int’l Criminal tribunal for Yugoslavia] on the question of jurisdiction.
In any event, … since the U.S. government decided this was to be the policy, we all have to live with it and hope for the best. Would that wiser and more experienced heads had prevailed.