The Prosecution of Saddam Hussein
Introduction
On 14 December 2003, the United States apprehended Saddam Hussein and on 9 January 2004, the United States formally declared him a war prisoner, for turn over to the special court created by the governing council of Iraq formed three days prior to Saddam’s arrest. (Shawl 2006) Although the crimes attributed to Saddam were akin to the charges made against Hitler and Stalin, the prosecution of Saddam Hussein differed because the case came under national jurisdiction unlike the creation of international tribunals in the previous cases. This came under criticism because employing national laws could lead to Saddam’s exercise of his influence to thwart the rule of law. Other issues also emerged over the charges made against Saddam and the fairness of the prosecution process. (Chamblee 2004) Nevertheless, the trial proved to have gained acceptance by the Iraqi people and a number of states, ended with the death sentence of Saddam in 5 November 2006, and culminated with his eventual hanging. (Shawl 2006)
The Charges against Saddam Hussein
The charges for which Saddam Hussein was found guilty and sentenced with the death penalty by hanging is crimes against humanity for the deaths of one hundred forty eight Shia Muslims living in Dujail during the 1980s. Crimes against humanity charges specified four criminal acts perpetuated by Saddam Hussein. First is deporting or forcing the transfer of Kurdish communities resulting to the displacement of hundreds of families and the need for these communities to seek protection from refugee camps. Second is depriving the physical liberty of Kurdish and other groups in a manner considered as arbitrary and cruel by imprisoning individuals based on questionable charges and processes or the limitation of the movement of the people for fear of punishment. Third falls under other inhumane acts because of Saddam Hussein’s excessive use of punishments such as tongue amputation for political advocacies in opposition of the government or death penalty for as much as thirty crimes that were penalised in a less serious manner in other jurisdictions. Fourth is torture or the excessive use of force on people arrested during investigations or questioning. Saddam Hussein allegedly employed torture to silence political rivals and other opposing parties. For these crimes against humanity, Saddam Hussein was found guilty and sentenced to death by hanging. (Chamblee 2004)
However, the trial goes on for the separate crime of genocide for the attempt, through Operation Anfal, to wipe out the Kurdish population in Iraq using chemical weapons and other violent means. Prosecution for war crimes also continues for Iraq’s invasion of Iran and Kuwait and other atrocities committed to the citizens of these states. (Shawl 2006)
The Procedure of the Prosecution
To prove crimes against humanity, the prosecution had to determine pertinent laws that cover the acts claimed as committed by Saddam Hussein. Definitions of crimes against humanity in the Nuremburg Tribunal, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and International Criminal Court encompasses the acts of forcible transfer, deprivation of physical liberty, torture, and other inhumane acts as comprising crimes against humanity. The next step for the prosecution is to link Saddam Hussein to these crimes against humanity by proving that the acts occurred through testimonies of direct witnesses and reports of atrocities. The prosecution also needed to establish the link between Saddam Hussein and these acts, which is through Saddam’s role a head to the Revolutionary Command Council, which executed his commands. Proof that the acts were systematic and widespread was important by documenting all the commands made by Saddam Hussein and the victims. The prosecution also had to prove mens rea, which is an important factor in providing crimes against humanity, through the establishment of the chain of commend from Saddam Hussein as the person giving order down to the person executing the order directly to perpetuate crimes against humanity. Since Saddam Hussein did not plead guilty, the prosecution needed to provide evidence to contest Saddam Hussein’s stand of innocence. (Chamblee 2004)
After the presentation of evidence by the prosecution, the counter claims of the defence also required response. The primary counter arguments of the defence were that the acts being described by the prosecution were legitimate and consistent with the laws and that the tribunal hearing the case had to authority or jurisdiction because an international tribunal instead of the domestic tribunal in Iraq should have handled the case. (Chamblee 2004)
The Status and Suitability of the Tribunal
Four forums could take cognisance of Saddam Hussein’s case. The determination of the forum is crucial in determining applicable laws and constraints of procedures. First forum is trial by the Iraqi people through the Iraqi Special Tribunal because the atrocities were committed within Iraq, the Iraqi people hold jurisdiction in the prosecution of Saddam Hussein. However, this entailed criticism such as the possible manipulation of Saddam Hussein of court processes, the expected long time it will take for the new government to rebuild its court system to handle Saddam Hussein’s case, and fairness of the trial. (Chamblee 2004) As it turned out, these concerns, except for the fairness of the trial, did not emerge making this was the forum where Saddam Hussein was tried and sentenced.
Second forum is national prosecution handled by the United States based on the principle that states can prosecute on offences considered as within the ambit of the universal concern of the body of nations such as genocide and war crimes. However, this entails the weakness of possibly yielding to the immunity of heads of states so that even if the United States can take cognizance of the case, it may not be able to prosecute in actuality. (Chamblee 2004) This was the reason that the United States declined direct participation in the prosecution even if it was the state-party responsible for the arrest and turnover of Saddam Hussein to the Iraqi tribunal.
Third forum is the International Criminal Court but subject to two actions by the Security Council. One is to recommend Saddam Hussein’s case for prosecution since the ICC cannot take direct cognisance of the case since Iraq is not a signatory to the Rome Convention and the other allowing retroactive effect of the terms of the Rome Convention to the specific case since the acts for which Saddam Hussein is being prosecuted were made even before the enactment of the Rome Convention. (Chamblee 2004) However, these are unlikely to happen. Again, this option is not a feasible forum in the prosecution of Saddam Hussein, which supports the preference for a national tribunal.
Fourth forum is an ad hoc tribunal through the Chapter VII power of the Security Council based on the determination of a threat to peace and security. This does not require preliminary actions by the Security Council unlike in the International Criminal Court forum. This is also a proven and applicable forum since ad hoc tribunals were created for Yugoslavia and Rwanda. Defences against this forum include jurisdiction as well as the fairness and impartiality of the tribunal. (Chamblee 2004) Although, this constitutes a potentially effective forum, the United States opted to go for trial by the Iraqi people for a number of reasons such as considering the proximity of witnesses and providing the Iraqi people with a hand in the prosecution, in preparation for their transition into the democratic state.
Overall, the Iraqi Special Tribunal is suitable for the prosecution of Saddam Hussein in terms of jurisdiction and applicable laws. The tribunal has gained a seemingly legitimate status because of not only the support from the Iraqi population but also international backing especially the United States as well as other states that had a participation in Iraq. The tribunal has also been incorporated into the court system of Iraq but its status has been questioned by the legal community especially because of issue of fairness of the trial. (Shawl 2006)
Conclusion
The prosecution of Iraq introduced new processes in international law especially trial through a domestically formed tribunal and the corresponding processes that should have a strong future impact on international criminal law.
References
Chamblee, E. L., 2004. Post-war Iraq: Prosecuting Saddam Hussein. California Criminal Law Review, 7(1), p. 1-51.
Shawl, J., 2006. Saddam sentenced to death in Dujail crimes against humanity case. Jurist, 5 Nov. Available at http://jurist.law.pitt.edu/paperchase/2006/11/saddam-sentenced-to-death-in-dujail.php [Accessed 14 April 2008]
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