The execution of Saddam Hussein, though he was undeniably guilty of a notorious series of crimes against humanity, represents a major setback in the pursuit of justice in Iraq. The trial and the sentence were both problematic. The opportunity for future trials, and to present evidence of U.S. complicity in some of Saddam’s crimes, has been lost. And the overall message — that leaders face justice only if they run afoul of U.S. authority – undermines international legal norms.

It is impossible to mourn the passing of the tyrant. Unfortunately, it is all too easy to mourn the manner of his demise. The political implications of his execution may set back efforts for peace and reconciliation in Iraq.

Trial and Sentence

Saddam’s trial was no paragon of justice. The prosecution failed to disclose key evidence to Saddam’s attorneys and limited the right of the defendant to confront witnesses. Three defense lawyers and a witness were assassinated. The first presiding judge resigned, and the second engaged in a series of outbursts that undermined his impartiality. Louise Arbour, the UN High Commissioner for Human Rights, called for the postponement of the execution, observing that “there were a number of concerns as to the fairness of the original trial, and there needs to be assurance that these issues have been comprehensively addressed.” Despite President George W. Bush’s insistence that it was a fair trial, Amnesty International noted that “the execution appeared a foregone conclusion, once the original verdict was pronounced, with the Appeals Court providing little more than a veneer of legitimacy for what was, in fact, a fundamentally flawed process.” However guilty Saddam may be of the charges against him, his execution without a fair trial allows Saddam’s supporters to continue to deny the crimes themselves.

Saddam Hussein was tried by a judicial body set up under the occupation authority of a foreign government that illegally invaded his country. Indeed, U.S. government lawyers largely drafted the rules governing the tribunal. The Bush administration also contributed more than $100 million to build the special courtroom and provided the prosecution with advisers, lawyers and forensic investigators. If viewed as “victor’s justice,” Saddam Hussein’s execution will appear to have resulted not from an objective assessment of the seriousness of his crimes but because he was on the losing side of a war.

Furthermore, the full seriousness of his crimes was not revealed. He was executed for ordering the killings of scores of people in the Iraqi town of Dujail following a 1982 assassination attempt. He will not face trial for even worse war crimes, such as the Anfal campaign against Kurdish civilians during the late 1980s. The likelihood that Saddam’s defense lawyers would have presented evidence of complicity by the U.S. government, which was supporting Saddam at that time, may have played a role in the Bush administration’s push for an early execution.

Then there’s the problem of the death penalty itself. In virtually every country in recent decades where a dictatorship was overthrown, the new governments have moved quickly to abolish the death penalty. In Iraq, however, a U.S. occupation authority initially replaced the dictator. The only Western industrialized democracy that still executes its prisoners, the United States insisted that Iraq maintain a system of capital punishment. According to Richard Dicker of Human Rights Watch, the United States rejected an international tribunal in part because the Bush administration “wanted to make sure (the verdict) would include the death penalty, which wouldn’t happen in an international court.”

Whose War Crimes?

The United States has repeatedly demonstrated its lack of concern regarding the war crimes of allies. For example, Indonesia’s General Suharto, who ruled his predominantly Muslim Southeast Asian nation for 34 years, has even more blood on his hands than does Saddam Hussein. He oversaw the purges of suspected leftists in the mid-1960s which took over a half million lives. His invasion and occupation of East Timor ten years later resulted in the deaths of 200,000 people, more than 100 times the estimated number of Kuwaitis killed under Saddam’s 1990-91 occupation of that oil-rich sheikdom. Yet Suharto was a favorite ally of the United States under both Republican and Democratic administrations until a largely nonviolent popular uprising ousted the dictator in 1998. He currently lives in comfortable retirement, and the United States has made no effort to bring him to justice.

The United States helped stymie efforts to prosecute its one-time ally General Augusto Pinochet, who died of natural causes last month, despite widespread crimes against humanity during his bloody rule in Chile. The Bush administration – with bipartisan support in Congress – also provided strong diplomatic, military, and financial support for Ariel Sharon while he served as Israeli prime minister, despite his responsibility for a series of war crimes over several decades.

The United States rejected calls by international human rights groups, prominent jurists, and many Iraqis to try Saddam Hussein in a UN-sponsored international tribunal, such as the one prosecuting former Liberian president and notorious warlord Charles Taylor. Special UN-sponsored war crimes tribunals have also been set up to prosecute the perpetrators of the 1994 Rwandan genocide as well as those responsible for ethnic cleansing and other war crimes in the former Yugoslavia during the 1990s, including former Serbian leader Slobodan Milosevic.

Meanwhile, the Bush administration – with bipartisan Congressional support – has consistently sought to undermine the International Criminal Court (ICC), established in July 2002, in the apparent belief that the United States alone has the right to determine who gets to be tried for war crimes and who does not. For example, Congress overwhelmingly passed a law in 2002 that prohibits U.S. cooperation with the ICC, restricts U.S. participation in UN peacekeeping operations to situations where U.S. forces are explicitly exempt from prosecution for any war crimes, bans the sharing of U.S. intelligence with the ICC, prohibits most foreign aid to countries that ratify the ICC statute, and authorizes the president to use “all means necessary and appropriate” to free from captivity “any U.S. or allied personnel held by or on behalf of the ICC,” including a U.S. military attack on The Hague.

Washington’s message: a war criminal will only be brought to justice if he challenges U.S. foreign policy prerogatives. By contrast, if a war criminal is an American ally, he is not only safe but will be openly supported.

Shaping Saddam’s Legacy

As long as the United States opposes the ICC and uses the prosecution of war criminals as a sinister political tool rather than a universal principle of justice, the impact of Saddam’s execution will increase the polarization and resistance in Iraq rather than help mend a nation that has suffered so much from dictatorship, war, sanctions, occupation and increasing civil conflict. Even many Iraqi opponents of Saddam’s regime are troubled by the sight of their former president, once the most powerful political figure in the Arab world, executed not in an Iraqi prison but at the U.S. military base Camp Justice just north of Baghdad.

As a result of such American policies, many in the Arab and Islamic world may unfortunately come to view Saddam Hussein not as the notorious tyrant and war criminal that he was but as a martyr and victim of U.S. imperialism.

Stephen Zunes is the Foreign Policy In Focus Middle East editor ( He is a professor of politics at the University of San Francisco and the author of Tinderbox: U.S. Middle East Policy and the Roots of Terrorism (Common Courage Press, 2003).

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