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Foreign Policy in Voice for Reason
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The Injustice of Saddam's Trial

by Elan Journo | January 27, 2006

The American-endorsed trial of Saddam Hussein is touted as an opportunity to render justice and lay the groundwork for an Iraqi transition from the arbitrary courts of a dictatorship to a proper legal system. But the trial will accomplish neither goal.

A trial that presumes Hussein’s innocence can achieve nothing but a travesty of justice.

Saddam Hussein is not a private citizen, whose guilt requires proof in an objective court of law, but a dictator whose incontestable evil was manifest to any rational observer of his tyranny. The Bush administration, after all, determined that Hussein was so vicious that we had to go to war to topple his regime.

Once we defeat and capture a militant dictator like Hussein, he deserves to be definitively condemned as evil and then executed–immediately, or after any valuable information is extracted from him. Prior to his execution, there can be a legitimate reason to hold a public hearing–not to establish his guilt, but to fully expose his secretive dictatorship by publicly cataloguing its myriad vile deeds. Such a hearing would recognize that, unlike a private citizen, a dictator is responsible not merely for his own individual acts of violence but for all crimes committed by his regime, whether or not in any given case he himself pulled the trigger or gave a direct order to murder the victims.

But the trial now underway evades Hussein’s incontrovertible culpability, absurdly presumes him innocent, and demands that his “command responsibility” be established for particular acts of murder. In the case that began Oct. 19, the prosecution is required to prove that Hussein specifically ordered his thugs to carry out the 1982 massacre of some 140 people. This is as perverse as presuming Hitler, Stalin, or Mao innocent in the millions murdered by their regimes–and then groping for evidence that they personally ordered the execution of a handful of dissidents in one small village.

It is outrageous that after more than two years into a war that has cost billions of dollars and thousands of American lives, we regard as legitimate the possibility that Hussein could be found culpable for only some minuscule number of murders or even not guilty. It is outrageous that he is given a defense team of 1,500 lawyers, that he is granted the right to appeal a guilty verdict, and that he is allowed to address the court. In one more injustice against all his victims, domestic and foreign, Hussein has eagerly exploited this international stage–paid for with American money and blood–to challenge and scold his Iraqi victims, to rail against the United States, and to cheer on the insurgents murdering Americans.

And yet this trial, the epitome of injustice, is defended as paving the way for a truly just legal system. Proponents argue that, whatever one thinks of the specifics of the trial, it marks the transformation of Iraq’s judiciary from courts subservient to a dictator’s whims, to courts objectively determining guilt or innocence. But the trial does no such thing.

Observe that only Iraqis were deemed qualified to decide Hussein’s culpability. With President Bush’s encouragement and blessing, the Iraqi leadership was given full control of the proceedings–and deliberately excluded American judges. Though there are plenty of American judges with decades of experience under a proper legal system–and few, if any Iraqis with comparable experience–American participation was viewed as unacceptable. Why were only members of Hussein’s ethnic tribe deemed fit to judge him?

Because justice, on the premise of the trial, is determined by the tribe; the tribe alone is the ultimate arbiter of right and wrong, good and evil, innocence and guilt. On this view, a meticulously logical assessment of universally available facts has no bearing on justice. Whatever the tribal group feels is just–regardless of evidence or logic–is just. A trial conducted on this premise is a repudiation of justice as an objective principle.

The trial is not, in essence, a departure from the subjective courts of the former regime. Instead of Hussein capriciously prescribing a “just” verdict, that arbitrary power now belongs to the Iraqi tribe–or any sub-tribe (whether Sunni, Shiite, Kurd) that wrests control of the courts.

This trial is irredeemably corrupt. The United States–which gave Iraq millions of dollars and sent lawyers and forensic investigators to launch the proceedings–must immediately withdraw its moral sanction from this travesty of justice.

About The Author

Elan Journo

Senior Fellow and Vice President of Content Products, Ayn Rand Institute