25 Sep Saddam Sentenced to Death by Judge Who Didn’t Hear the Evidence
I wish I could say I was surprised:
Long before Mr. Hussein was hanged on Dec. 30, 2006, with supporters of Iraq’s new Shiite-led government taunting him as the noose was tightened around his neck, a pattern of intervention by powerful Iraqi officials had been established. The court’s first chief judge was dismissed under government pressure for giving Mr. Hussein too much leeway for his courtroom outbursts, and the associate judge named to succeed him was removed under government threats before he could take over.
But until now, only officials involved with the court’s inner workings knew that a third judge, Munthur Hadi, was forced from the judges’ panel less than a week before the court delivered its verdicts, on Nov. 5, 2006. He was replaced by another judge, Ali al-Kahaji, who had heard none of the evidence in the nine-month trial. The replacement was favored, the Western lawyers say, because of his links with Mr. Maliki’s Dawa religious party, which had lost thousands of its members to Mr. Hussein’s repression, and because of Mr. Kahaji’s readiness to approve Mr. Hussein’s hanging.
William H. Wiley, one of the lawyers now speaking out, worked in the Regime Crimes Liaison Office, the American agency that set up, financed and counseled the Iraqi High Tribunal, the special court constituted to hear cases against senior Hussein-era officials. Mr. Wiley, 44, a Canadian who advised Iraqi defense lawyers at the trial, said the Maliki government, not the liaison office or officials in Washington monitoring the trial, was at fault for subverting due process in Mr. Hussein’s case.
“The prime minister’s office was perpetually banging on the door, until they finally got control of the whole process,” Mr. Wiley said in a telephone interview from Brussels, where he now heads a legal consulting firm.
[snip]
Similar accounts of the replacement of Judge Hadi were given by an American lawyer who worked on the trial and by a Western legal expert familiar with what had happened. Both spoke on the condition of anonymity because of the political sensitivities involved.
[snip]
The secrecy about Judge Hadi was made possible by the court’s ruling that the identities of all but the chief judge on the five-judge panels at the trials should be withheld from public disclosure, to protect the judges and their families. In the PBS documentary, Mr. Wiley said that “other members of the chamber,” apparently another judge, had told Mr. Maliki’s office that Judge Hadi was “relatively soft” during deliberations on the verdicts and sentences for the eight Dujail defendants and was leaning against a death sentence for Mr. Hussein.
At the time, court officials attributed Judge Hadi’s departure to ill health. One of the lawyers interviewed for this article dismissed that as a smoke screen and said that officials in Mr. Maliki’s office had in fact threatened Judge Hadi with the loss of his tribunal job and his pension, as well as with eviction, with his family, from housing in Baghdad’s heavily fortified Green Zone, tantamount to a death sentence for anyone involved in prosecuting Mr. Hussein.
“The prime minister’s office had identified what they perceived to be the weak link, and he was removed and replaced by a hard-liner,” Mr. Wiley said.
Although I’m not surprised, I am certainly speechless. And I’m so angry that I’m literally shaking — not at the Iraqi government or the IHT judges, because we all knew from the beginning that they were only interested in executing Saddam as quickly as possible, due process and the rule of law be damned. No, I’m angry at the Western lawyers who said nothing while Saddam was being paraded to the gallows. Seriously, how can Wiley say that the RCLO was not “at fault for subverting due process in Mr. Hussein’s case”? They may not have replaced the “soft” judge themselves, but they let it happen without a word of public protest. They are thus no less complicit in Hussein’s cold-blooded murder — let’s call it what it was — than the Iraqi government.
Thank God we poured $128,000,000 taxpayer dollars into the RCLO to promote “justice and accountability” in Iraq. Money well spent, indeed.
What about the cold-blooded murders that occurred at Nuremberg and Tokyo? You had multiple defendants being tried together, no appellate process, and ex post facto laws. Before you shake too much, take a look at reality: international law will always be victor’s justice. We just like to cloak it with the law, just without all of those annoying procedures.
The Nuremberg trial was anything but cold-blooded murder. (As for Tokyo, well…) The judges were obviously able to distinguish between defendants, as indicated by the three complete acquittals and the variety of sentences other than death. And although I agree with you that the aggression charges were ex post facto, no defendant was sentenced to death for aggression alone. (I disagree, as do most ICL scholars, that the crimes against humanity charges were also ex post facto.)
There are many aspects of international criminal law that represent victor’s justice. But blanket condemnations — “international law will always be victor’s justice” — are both inaccurate and counterproductive.
Response… Would you support a system of justice with no appellate review? Nuremberg had none. From trial to death it was just over a year. Would you support that type of due process? I would not. What about the failure to prosecute Emperor Showa? And immunity, by the U.S., for Japanese scientists involved in testing biological weapons experiments on civilians?
As I said, I don’t generally disagree with you about Tokyo. And of course I think it’s important to have appellate review. Its absence at Nuremberg, however, does not necessarily mean that the executions were “cold-blooded murder.” If you have an example of an executed defendant who did not deserve to be convicted and sentenced to death, please discuss it. I think their guilt was overwhelming and fairly proved, although I think Streicher should have been sentenced to life imprisonment instead of to death. (In terms of non-capital defendants, I don’t think Doenitz should have been convicted at all.)
Response… We agree on most points. I believe that any court that wants the legitimacy of law, should implement all of the protections of the law, such as the ICC not allowing hearsay. But, I would not call the trial of Hussein as murder. Thanks for the debate.
You wouldn’t call Hussein’s trial murder? After your eloquent defense of procedural protections, you think an execution has legitimacy when a judge who was leaning against the death penalty is removed for that reason and replaced by a judge who hadn’t heard the evidence and had already stated his desire to sentence Hussein to death?
Kevin,
One of the lawyers involved in advising the Iraqis regarding Saddaam’s trial, Professor Mike Newton of Vanderbilt Law, has just recently completed a book about it. He was there for most or all of it. It purports to be an objective account. I haven’t read it, but you might be interested in picking up a copy.
In a presentation I saw recently, Professor Newton mentioned that they had much less “control” or ability to influence the Iraqis’ handling of the process than most (or your post) seem to realize. Although I don’t know Mr. Wiley, I am hesitant to give his story so much credence without more information and evidence. Beyond that, I am unwilling to impugn the US representatives without knowing what they knew or could do about what was happening. Obviously, “said nothing” could imply many things. Saying what? To whom? Perhaps nothing was said; perhaps it was said and ignored…we just don’t know.
I only hope it is not what Mr. Wiley makes it out to be, recognizing that anything is possible.
Best,
John