Tuesday, July 6, 2004

Saddam Hussein should be summarily executed. His uncontestable guilt of genocide, crimes against humanity, war crimes, and wholesale slaughter, torture, and rape of Iraqi dissidents would make a trial superfluous, akin to proving the sun rises in the east and sets in the west.

Summary execution might occasion qualms because of the customary presumption of innocence. But they would be fleeting. Based on voluminous, open, and notorious evidence, every sapient creature is already convinced beyond a reasonable doubt of Saddam’s staggering criminal culpability. Secretary of State Colin Powell’s sermonizing over Saddam’s innocence until a guilty verdict exalts form over substance.

Under the international law doctrine of command responsibility, a head of state or military commander is criminally accountable for either directing or failing to take reasonable measures to prevent or to punish the crimes of subordinates. Thus, the U.S. Supreme Court in In re Yamashita (1946) held the commanding general of the Imperial Japanese Army in the Philippines could be sentenced to death for neglecting to control extensive and widespread atrocities perpetrated by members of his command.

At present, in the Hague Tribunal, Slobodan Milosevic confronts indictments for genocide and crimes against humanity pivoting on command responsibility.

Saddam ordered or approved the genocide of Iraqi Kurds in the Anfal campaign in which thousands of villages were destroyed and hundreds of thousands of civilians were massacred; the use of chemical weapons against Kurds and Iranians; massive atrocities and oppression of Shi’ites in the south marshes; and, routine killings, torture, and rape to punish detractors. Saddam was as responsible for approximately 1 million deaths as Stalin was for liquidating the kulaks and the Ukrainian genocide and as Adolf Hitler was for the Holocaust.

If he were executed without a formal trial, few if any would assail the execution as a miscarriage of justice. Romanian dictator Nicolae Ceausescu was summarily shot for brutal crimes in December 1989 with international acquiescence or approval. During World War II, Benito Mussolini and Reinhard Heydrich were assassinated without triggering condemnations that the extrajudicial killings were moral wrongs.

Indeed, if Saddam himself had been killed rather than captured, few if any would have complained that his death was unjust. Similarly, the European Union has declined to weep over the Iraqi government’s reinstitution of the death penalty for Saddam despite the EU’s renunciation of capital punishment as a violation of human rights. In other words, summary execution of Saddam would not give birth to either indigenous or international protests.

A swift and humiliating death would be a sobering message to Iraqis to reject Saddam’s terrorism and savagery, which would promise no glory but only a grisly end. In contrast, a public trial offers Saddam a platform and megaphone to demagogue against the United States and Israel, as he did during the 1991 Persian Gulf war. He will paint himself as an Arab and Muslim martyr at the hands of a western imperialists and Zionists, a credible portrait in a region where even the educated insist the September 11, 2001, terrorist abominations were orchestrated by the Central Intelligence Agency and Jews.

A trial would thus risk transforming Saddam into an honored symbol of Iraqi resistance and dignity. Consider the parallel case of Mr. Milosevic. He has exploited his trial before the Hague Tribunal to win election to the Serbian parliament and legislation to pay his legal bills with outlandish polemics appealing to nationalistic fervor.

Saddam, of course, would not monopolize a trial. The prosecution would present graphic evidence of his monstrous crimes. The public would be sobered and educated, as with the post-World War II Nuremberg and Tokyo trials of Nazi and Imperial Japanese leaders. Testimony from Saddam’s few surviving victims might also prove therapeutic. But revulsion and memory of Saddam’s unspeakable crimes and victims’ testimonies could be equally achieved without a trial by a Truth Commission modeled after South Africa’s and a museum emulating the Holocaust Memorial.

A summary execution of Saddam would admittedly violate the rule of law, a priceless contribution to liberty and to civilization. But all laws are matters of degree, even the rule of law. James Madison lectured in Federalist 51: “Justice is the end of government. It is the end of civil society.”

Accordingly, if applying the rule of law would militate against moral justice, the rule should yield, not the transcendent goal. The Saddam precedent, moreover, would not destroy the rule of law. Summary execution could be confined to the most satanic Iraqi leaders, just as Romania has confined the Ceausescu precedent.

The impending media glamorization of Saddam and his legal defense team is vastly more dubious than would be his speedy execution without trial.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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