TO: Distinguished Recipients
FM: John Whitbeck
Transmitted below is a highly pertinent opinion article by Richard Falk,
distinguished professor emeritus of international law at Princeton.
He poses (and, more surprisingly, the International Herald Tribune
publishes) the obvious moral and legal question in the wake of Saddam
Hussein's trial and conviction -- albeit only for what, by Saddam's
standards, was a relatively minor crime, apparently selected by the
American "advisers" to the court because it was the "best" of his crimes
that could be found in which the American government was not itself
complicit or potentially exposed to public embarassment.
That question is: *"Why not Bush, Dick Cheney and Donald Rumsfeld?"*
Indeed, on both legal and moral grounds, they (and Tony Blair) are
equally deserving. In a less hypocritical and unjust world, one with
equal rights and responsibilities for all, they too would be brought to
justice and convicted.
Of course, in our imperfect world, this will not happen. However, those
individuals are particularly ill-positioned to gloat over -- and claim
vindication from -- the fate of their fellow war criminal.
*A dubious verdict*
/ Agence Global
Published: November 8, 2006
The timing of the death sentence imposed on Saddam Hussein, so
suspiciously convenient for Republican aspirations in the U.S. midterm
elections, will only deepen the sectarian tensions in Iraq, fanning
further the flames of civil war.
While President George W. Bush predictably greeted the news as yet
another "milestone" in the effort of the Iraqi people "to replace the
rule of a tyrant with the rule of law," a less partisan reaction would
lament the timing as intensifying sectarian strife in Iraq that has by
now become a civil war intertwined with a war of resistance.
The American stage managing of this judicial process in Baghdad has been
evident to close observers all along. It always seemed legally dubious
to initiate a criminal trial against Saddam, while the American
occupation was encountering such strong resistance by Saddam loyalists,
especially as the U.S.-led invasion was widely regarded throughout the
world as itself embodying the crime of aggressive war, a crime for which
surviving Nazi leaders were charged and punished at Nuremberg after
World War II.
This reality constitutes a fundamental flaw in this whole judicial
process. In effect, why Saddam? Or differently, why not Bush, Dick
Cheney and Donald Rumsfeld?
The cost of this political opportunism by the United States goes beyond
the narrow circumstances of this trial. No one doubts that Saddam and
the other defendants were substantively guilty of crimes against
humanity when they killed 148 civilians in the town of Dujail back in
1982 after a failed assassination attempt; collective punishment is an
international crime whatever the provocation. But the potential
contribution to building a legal tradition of accountability applicable
to political leaders has been undermined in this instance by the
circumstances and auspices of the this tribunal - and by the way the
Defense lawyers were not adequately protected, and three were killed;
evidence presented to the tribunal was not made available to the defense
in advance; the judge was switched midway through because he was alleged
to be too permissive toward those accused; there were no international
judges on the tribunal; and some of the evidence appeared to be fabricated.
Justice is not done if the appearance of justice is not present. This is
particularly true if there is deep political cleavage about whether
those accused should be prosecuted in the first place.
Finally, the impact of this sentence is morally and politically
questionable. At this point, internationally, a death sentence is not
considered to be an acceptable punishment; the International Criminal
Court, and other international criminal tribunals, reject capital
punishment as an option. Almost all political democracies in the world
have done away with the death penalty, and so to impose it here,
especially by way of hanging, can only be regarded as an expression of
primitive vindictiveness, an act of vengeance far more than an
expression of justice that brings discredit to the whole process.
Politically, as the sectarian demonstrations throughout Iraq have
already demonstrated, the verdict at this point by an Iraqi tribunal
acting under the authority of the American occupier, intensifies the
problematic situation in the country. It fans the flames of Sunni-Shiite
strife, which possesses most of the characteristics of a civil war, and
it reinforces the impression of an aggressive occupier imposing its
historical narrative on a still deeply divided society.
It also poses a dilemma. If the death sentence is carried out, it will
ensure Saddam's status as a Sunni martyr, and make even more unlikely an
accommodation among Iraqis as an alternative to civil war. On the other
hand if the sentence is not carried out, it will give further evidence
that this is a political, not a legal, process, and sadly, encourage the
most cynical views of these efforts to hold political leaders
responsible for crimes of state. As well, it will sustain Saddam's claim
to be still the leader of the Iraqi people, a hero in captivity.
All in all, the outcome of this first trial against Saddam's Baathist
regime should have been internationalized, or at the very least, waited
until normalcy had been restored in Iraq. To convert this criminal
process into a tool to vindicate the narrative of the Bush
administration as to what was achieved in Iraq by the invasion and
occupation was itself misguided even if the only audience was in the
By now, even naïve America no longer listens when Washington claims that
another milestone establishes progress in the war. As the milestones
pile up, so do the bodies.
/Richard Falk is professor emeritus of international law at Princeton