Saddam death sentence further muddying “rule of law” in Iraq

Saddam Hussein may be executed by hanging any day now. AP’s Lauren Frayer reported a short time ago that the US military guards holding him allowed his half-brothers to visit him in his cell, and he gave them his will and his personal belongings, indicating the hanging may be very near. But she also quoted “Iraqi” officials as saying Saddam is still in US custody and had not yet been handed over to the “Iraqi” authorities for hanging.
(Reuters has reported out of Dubai that he’d already been handed over to the Iraqi authorities. But that report was indirect and poorly sourced.)
The special court established to try Saddam and other leaders of the former regime on charges of genocide, crimes against humanity, and war crimes was nominally “Iraqi”, though at every point in its operation from its founding in 2004 until today its “Iraqi” personnel have had the close advice and generally loose supervision of US advisers from the “Regime Crimes Liaison Office.”
Additionally, the “Iraqi” courtroom has been within an area, reportedly in the Green Zone, that is completely controlled by the US military. And though the “trials” themselves have been held in this “Iraqi” courtroom, in between the sessions Saddam has still been held in the custody of the US Army, like the prisoner-of-war that, under international law, he in fact is.
When he is executed, his US guards will have to hand him over to the “Iraqi” security forces who will supervise his homicide through hanging.
Yesterday, his lawyer Khalil al-Dulaimi raised a strong objection to this handover. According to AP’s Christopher Torchia, Dulaimi,

implored world leaders [today] to prevent the United States from handing over the ousted leader to Iraqi authorities for execution, saying he should enjoy protection from his enemies as a “prisoner of war.”

Dulaimi’s objection was explicitly very political, based as it was on a judgment that the “Iraqi” special court is made up Saddam’s “enemies”. Yes, that is probably a correct judgment. However, even on strictly technical, procedural grounds there is strong case to be made against this handover. Article 84 of the Third Geneva Convention states:

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

Art. 105 states that in the event of a judicial proceeding being brought against a POW, he is entitled to “defence by a qualified advocate or counsel of his own choice, [and] to the calling of witnesses”, and further defines the rights of this counsel to conduct an effective defense.
The now very current issue over the the (national) identity of the organization holding Saddam’s person raises important questions over the broader jurisdictional issues involved. One can make a very strong argument that the establishment of that completely new body, the “Iraqi High Tribunal”, like all the many other far-reaching administrative changes that the US occupiers have made during their lengthy stay in Iraq, was quite illegal under international law, which prohibits occupying powers from enacting such changes.
But right now, the fact that Saddam remains in the physical custody of the US forces places those forces in front of a particular dilemma. Will the US now hand him over to the Iraqis to be executed as a result of a trial process that, a large number even of Americans who earlier eagerly supported the whole trial process now agree, has been very deeply flawed?
It clearly looks as though the answer is “Yes.”
For examples of criticisms by US-based organizations and individuals of the Iraqi court’s proceedings and its death sentence, see the statements issued most recently by Human Rights Watch and the International Center for Transitional Justice.
See, too, the comments contributed to this on-line forum by respected law profs Mark Drumbl and Bill Schabas.
This, from HRW’s Rickard Dicker:

“Imposing the death penalty, indefensible in any case, is especially wrong after such unfair proceedings,” said Richard Dicker, director of the International Justice Program at Human Rights Watch. “That a judicial decision was first announced by Iraq’s national security advisor underlines the political interference that marred Saddam Hussein’s trial.”

This, from the ICTJ:

The Appeals Chamber of the Iraqi High Tribunal has mistakenly chosen speed over justice, said the International Center for Transitional Justice (ICTJ). Instead of addressing the serious flaws of the Dujail trial, the Chamber yesterday appeared to have bowed to political pressure and issued its final judgment with worrying speed.

This from Bill Schabas:

Where defence lawyers live in fear of their lives – a concern proven to be reasonable, given the tragic outcome for three of their colleagues – it cannot be said that the defendant has had a full and fair defence, and that the right to counsel of one’s choice could be exercised…
International human rights law is crystal clear on one point. You cannot execute a person unless he or she has received a fair trial that respects the highest international standards. A reasonably fair trial is not good enough…

You can find my still-growing “Delicious” list of links to good resources on the Saddam trial here.
My basic bottom line: Has this whole trial proceeding, on balance, contributed to the building of a more stable and rule-of-law-observing society inside Iraq?
Answer: No.
What else might the US have done with Saddam once they’d captured him? Held him themselves, and explicitly as a high-ranking prisoner-of-war… And then, at the end of hostilities in Iraq the US itself could have tried him for the atrocities he committed. (Certainly, for the crime of genocide, under the doctrine of universal jurisdiction attached to it, any competent court anywhere could have tried him.)
Such a trial would still have had the potential of being divisive inside Iraq. But (1) It would not have been conducted at a time when major issues of governance remain unresolved and highly contested within Iraq, and (2) The proceedings and the resulting decision would have been an explicitly, and justifiably, US responsibility, and would not have dragged Iraq’s own internal political process into further depths of polarization, as having the present, nominally “Iraqi” special court handle the proceedings has done.
I have thought several times that it might have been better all round if Saddam had lost his life during the process of his capture. (Though being a Quaker I could not easily voice these thoughts.)
But the US search squads looking for him were apparently under strong instructions to try to take him alive if at all possible, so that widely publicized trials that would help, ex-post-facto, to “justify” the whole decision to topple him by force could be held… And Saddam himself was also acting under a similar desire not to do anything to provoke his own killing during his capture. So he got his “day in court”, which by and large he used quite effectively, from his own point of view. And now, it appears he is about to be killed, anyway.
I imagine the Bushites will hail Saddam’s execution as further vindication of their invasion. The whole, very disquieting “legacy” left by the trial process– both inside Iraq and in terms of the development of further respect for the “rule of law” wordwide– is another matter, completely.
But then, the Bushites’ decision to invade Iraq was itself a flagrant violation of the whole concept of “rule of law” in the international arena. Hard to see how anything much constructive from the rule-of-law viewpoint could have been expected to flow from that…