Saddam Hussein: On Trial

This column was written by Dan Senor.

Iraq's "trial of the century" will actually be broken up into 12 to 14 separate trials, each built around a specific crime, rather than a specific defendant. Every regime official implicated in each crime will be tried at the same time. This is the inverse of what Americans are accustomed to in our legal system, where suspected criminals are tried separately.

This promises a lengthier, clunkier process that will not always be focused on Saddam. One hopes that press coverage will not dwindle as a result. (Today at the Hague, there are only three organizations still covering the trial of Slobodan Milosevic. While not directly comparable to Saddam's case, it is no less disheartening that the world has long since lost interest.)

The crimes that will be prosecuted by Iraq's Special Tribunal include:

* The 1987-88 Anfal campaign, a depopulation plan in which hundreds of thousands of Kurds were killed or expelled from northern Iraq.
* Mortar bombardment of the city of Kirkuk.
* Saddam's suppression of a Shiite uprising following the first Gulf War, which resulted in thousands buried in mass graves.
* Forced emigration of thousands of Fayli (Shiite) Kurds, who were pushed from northern Iraq into Iran.
* The killing of an estimated 5,000 people in a 1988 chemical weapons attack on Halabja, a Kurdish town.
* The execution of 8,000 members of the Barzani tribe, a powerful Kurdish community.
* The 1990 invasion of Kuwait, which Iraqi forces occupied for seven months.
* Execution of prominent political and religious figures.
* Crimes against religious and secular political parties.
* The drying of the southern marshes, following the 1991 Shiite uprising, in which Saddam ordered the building of dams, canals and dikes to drain the Mesopotamian marshlands between the Tigris and Euphrates rivers.

The first trial will be for one of the "smaller" crimes: a massacre in the small city of Dujail, about 35 miles north of Baghdad. It was in this town that a handful of Iraqis attempted to assassinate Saddam in 1982 as his motorcade was passing through. The regime's response was the razing of the entire city and collective punishment that resulted in the deaths of 150 locals.

Why start with the relatively unknown Dujail massacre, rather than Halabjah or the mass graves? The view of U.S. government officials was that Saddam's biggest crimes should be spotlighted at the beginning of the process, when international attention will likely be at its peak. But that view did not prevail. The Iraqi Special Tribunal elected to start with the case that is air-tight and easiest to prosecute. As Iraqi Tribunal officials see it, the momentum for the trials would be blunted if Saddam got off on a technicality on the first trial. Furthermore, the Iraqi prosecutors anticipate Saddam will borrow some rhetorical and theatrical tricks from Slobodan Milosevic. Indeed, Saddam has studied his performance at the Hague. So the Iraqi Tribunal believes it's better to let him exhaust these tactics on the smallest trial, before he has to answer for chemical attacks and mass graves.

Saddam's legal strategy, as explained to me by a leading member of the defense team – Abdul Haq al-Ani, retained by Saddam's daughter – is fourfold:

* Argue that the war that overthrew Saddam was illegal under international law and, hence, Saddam is still legally president. If he's still president and his regime still sovereign, then the Saddam-era Iraqi Constitution--which gives him full immunity – must prevail.
To al-Ani, it is meaningless that millions of Iraqis voted for a new post-Saddam government last January, and that the newly-elected government has been recognized by the U.N. Security Council. "The Security Council does not have the authority to breach the charter that created it," he told me in his home. And a correct reading of that charter, he says, would interpret as illegal the war that preceded post-Saddam Iraq.
* The second pillar is to argue that the alleged crimes committed by Saddam are no different from President Bush's response to the September 11 attacks. Responding to insurrection – whether for Saddam in Halabjah or Bush in Afghanistan--had to be swift and overwhelming. If innocents are killed, that's analogous to Bush's wars, too, he claims. Of course, al-Ani fails to distinguish between accidentally killing civilians in pursuit of terrorists and intentionally targeting innocents to permeate fear in a population.
* The third pillar will be to call Presidents George W. Bush, Bill Clinton, and George H.W. Bush to testify, just as Gen. Wesley Clark was called to testify at the Hague. Defense Secretary Rumsfeld is expected to be singled out, too, as the embodiment of the alleged support that the U.S. gave to Saddam in the 1980s during his use of chemical weapons.
* By airing the dirty laundry of America's foreign policy over the past several decades, Saddam's lawyers believe that they will embarrass the Bush administration into abruptly ending the trial and figure out a way to cut a deal with Saddam, which will include returning him to power. Seriously. How likely is this? According to al-Ani, odds are better than 50 percent that it could happen within a year. Yes, he truly believes that Saddam or, as the defense team refers to him, "President Hussein," could be back running Iraq by this time next year.

As for residual effects in the region, al-Ani believes that many Arabs watching the televised trial may identify with Saddam's "humiliation," which could even cause a spike in the insurgency – an increase in violence is anticipated by Commanding General George Casey too.

Interestingly, al-Ani shares the Bush administration's view of the possible ripple effects of the proceedings: "All these [Arab regional] leaders will hate the day when they, the public, sees Saddam on trial." When I asked if this was because it could encourage the populations of neighboring dictatorships to question the invincibility of their own leaders, he responded: "Indeed, indeed, that's part of it."

It is disappointing that the international community has not rallied more behind the trial. The arguments from the European Union and many NGO's include opposition to the death penalty, which the Iraqis have decided on their own to reinstate, and concern that Saddam cannot get a fair trial inside Iraq, and that it should instead be held elsewhere, much like the International Tribunal on Rwanda was held in Tanzania. But a sovereign nation should be able to make these decisions and still receive international support for a process that's crucial to Iraq's own truth and reconciliation.

Indeed, the Iraqis have the indigenous legal talent to make reasoned decisions on their own. Theirs is a legal tradition going back to the Baghdad and Basra Law Schools that pre-date Saddam. And really all the way back to Hammurabi, too. What's interesting is that the pre-regime legal institutions were basically left untouched during Saddam's reign. He instead built extra-judicial institutions, such as the Revolutionary Command Council, rather than corrupt the still-standing judicial system.

As for his own motives, al-Ani told me that even he believes Saddam Hussein is despicable for the illegal imprisonment and torture of innocent Iraqis. So why is he defending him? "Because I'm anti-American. I'm not for Saddam. I'm anti-American. And defending Saddam is the best way I can express it."
Defending Saddam, of course, is what al-Ani will accuse the U.S. of having done years ago. The question is what conclusions the peoples of the Arab world will draw regarding those who defend him now, and governments who, through their lack of support for the new Iraqi government, side with the insurgents who would gladly return him to power.

Dan Senor was a senior adviser to the Coalition in Iraq when Saddam Hussein was captured.

By Dan Senor. ©