- The Washington Times - Wednesday, December 17, 2003

An eight-member civilian tribunal composed equally of Americans and Iraqis appointed by Coalition Provisional Authority Administrator L. Paul Bremer should try Saddam Hussein for genocide, war crimes and crimes against humanity.

Conducting wars of aggression against Kuwait and Iran should not underpin the prosecution. Aggressive war is conceptually too amorphous and prevalent to satisfy the due process principle of fair warning and evenhanded enforcement. The Iraqi people would revolt at punishing Saddam for what routinely escapes punishment under international law.

Saddam’s verdict and sentence should require unanimity but afford no appeal. The tribunal’s proceedings should be swift because the evidence of Saddam’s guilt is both mountainous and notorious. An exclusively Iraqi firing squad should carry out Saddam’s ineluctable death sentence.

Iraqis suffered most from Saddam’s criminal savagery. Kurds dominant in the north and Shi’ites dominant in the south were victims of genocide and indiscriminate killings motivated by ethnicity and religion, respectively.

Emblematic were chemical weapons employed against the former in Halabja and the draining of the southern marshes to destroy Iraqi Shi’ites. Further, hundreds of thousands were slaughtered, raped, mutilated, tortured, or imprisoned based on suspicion of political opposition to Saddam’s government.

Iraqis are thus as morally entitled to judge Saddam’s crimes as were Jews in Israel entitled to judge the crimes of Adolph Eichmann. Their presence on the eight-member tribunal with Americans is additionally urgent to prove Saddam’s guilt and punishment represent the moral consensus of the Iraqi people, not arbitrary victor’s justice.

The United States deserves equal representation because it defeated and apprehended Saddam, its soldiers were victims of his war crimes and it is sovereign in Iraq at present. In addition, Saddam’s trial and execution will assist the United States’ continuing military operations by demoralizing Ba’athist terrorist insurgents and by encouraging ordinary Iraqis to expose their hiding places and weapons.

Excluding the British from the tribunal is imperative because of their European Union obligation to oppose the death penalty. Its international character is important to maintain, nonetheless, to shield its decisions from review by occasionally wayward United States courts. In Hirota vs. MacArthur (1949), the United States Supreme Court held that the judgments of the Tokyo military tribunal established by Gen. Douglas MacArthur as agent of the Allied Powers for the trial of Japanese war criminals was not “a tribunal of the United States” subject to the jurisdiction of federal courts.

Televising Saddam’s trial should strengthen public revulsion for his nauseating crimes with a corresponding strengthening of popular legitimacy for the U.S. occupation. Due process would be no obstacle to proving guilt with reasonable dispatch, in contrast to the ongoing Slobodan Milosevic spectacle in the Hague Tribunal.

In Barnes vs. United States (1973) and Turner vs. United States (1970), the Supreme Court held that proof of guilt beyond a reasonable doubt could be satisfied by drawing an inference beyond a reasonable doubt from an undisputed fact. The United States, for example, does not produce heroin. Accordingly, due process is undisturbed by inferring from the unexplained possession of the drug knowledge of its illegal importation.

Saddam’s absolute dictatorship in Iraq from 1979 until his ouster by the United States was indistinguishable from Josef Stalin’s in the Soviet Union or Adolf Hitler’s in the Third Reich. Due process thus would justify the inference that Saddam’s secret police, prosecutors, prison wardens, military forces and assassination squads all acted under his direction and control.

Under international law as expounded in In re Yamashita (1946) and sister cases, a superior is criminally culpable for crimes perpetrated by subordinates of which he knew or should have known and which he did nothing to prevent or punish. Saddam is thus accountable for all the crimes committed during his dictatorship.

Witness or documentary evidence of indiscriminate mass killings, torture or oppression of Kurds, Shi’ites, and political dissidents by Saddam’s agents is abundant. Ditto as regards war crimes perpetrated by Iraqi forces during Operation Enduring Freedom — for example, using civilians as human shields. The exclusion of cumulative incriminating evidence and the placement of time limits on Saddam’s cross-examination would be appropriate to achieve speedy and sure justice.

The death penalty for Saddam’s monstrous crimes by an Iraqi firing squad would be justified to honor the lives of his countless more brutalized victims and to remove lingering vestiges of fear on the part of the Iraqi people that their Ba’athist oppressors might return to power. Saddam’s execution would also eliminate the potential of terrorists holding civilians ransom to gain Saddam’s freedom. His grim demise would additionally discourage recruitment of new terrorists by dispelling the belief amongst youth in the indestructibility and glories of terrorist rebellion.

Saddam’s trial and execution will not bring democracy, the rule of law, or interethnic, inter-religious unity to Iraq. The nation will still probably fracture and convulse after the United States renounces sovereignty next June. The annals of justice, nevertheless, will smile at holding a supreme tyrant to account.

Bruce Fein is a founding partner of Fein & Fein.

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