Experts agree that the appeals court decision marks the likely last resort for Saddam. If correct, it will be the final chapter in a trial, which, since it began in October 2005, has been characterized by many authorities worldwide as a farce for its soapboxing defendant, inadequately protected defense team (three of Saddam’s lawyers were murdered during the course of the trial) and what some legal critics saw as a weak application of the principle of a defendant’s presumed innocence.
Like the trial itself, the appeals court ruling has run into controversy. Human-rights groups claim the speedy ruling was plagued by government bias, while some international lawyers question the validity of the court’s decision to impose the death sentence. For his part, Saddam said in an open letter released by his lawyers Wednesday that he is ready to die as a “sacrifice” for Iraq, and become a “true martyr.” Sadakat Kadri, author of " The Trial: A History from Socrates to O.J. Simpson ," and a barrister specializing in international law in London, has written extensively about Saddam’s trial. He spoke to NEWSWEEK’s Emily Flynn Vencat about justice for the former dictator. Excerpts:
NEWSWEEK: Does the Iraqi appeals court’s decision to uphold the death sentence mean that Saddam has reached the end of the road legally?
Sadakat Kadri: Yes, it pretty much does. His options are extremely limited. Article 72 of the [Iraqi] constitution says that the powers of the [current] president include ratification of the death penalty, which would mean that Saddam could hope that the president would not ratify it. But the statutes of the Iraqi High Tribunal [the highest Iraqi court, which handed out Saddam’s death sentence] say that the president cannot “commute or reduce” any of their sentences in any way, meaning that in reality Saddam has no further recourse.
Do you think he will actually be executed within the next 30 days, as the appeals court ruled?
This trial is so infected with politics that it’s impossible to say what actually will happen. Under the law, it’s mandatory that the sentence be carried out in the next 30 days, but whether the law will actually be followed is as much open to doubt as anything else in this trial.
Could Saddam appeal on the basis of international law?
There is a question over whether it’s lawful to impose the death penalty itself in a case like this. Even though we all know that death sentences were handed out at Nuremberg [where Nazi war criminals were tried], they have never been handed out again since then. The Yugoslav tribunal, the Rwanda tribunal and the special court for Sierra Leone all specify that imprisonment is the maximum sentence they can impose. So, there’s certainly an argument there that if the Iraqi High Court had taken into account the relevant sentences of international criminal tribunals, they wouldn’t have issued the death penalty. But there’s no formal procedure to argue that. The rules are being made up as we go along.
Many human-rights groups have strongly criticized the trial for being deeply flawed. Were there serious legal problems with the way it was carried out?
Yes, there were dozens of problems. They began before the trial itself, when one of the first judges was murdered in March 2005. Then, the trial’s first presiding judge resigned three months into the trial, citing heavy government interference. During the course of the trial, three defense lawyers were murdered. Clearly, this hampered the ability and willingness of the defense lawyers to advance a robust case. Finally, the judge ended the defense’s case when they were only halfway through presenting their evidence, telling them abruptly and for no reason that they weren’t going to be able to call any more witnesses … In Iraq and around the world, most people came to regard the trial as an attempt to rubber stamp a predetermined decision.
Does the general dissatisfaction with the way the trial has been carried out mean that there will need to be an international revision of the way war crimes are tried in the future?
Not really. This has been Iraq-specific in many ways. The basic problem with the Saddam trial is that it was putting the cart before the horse. It was an attempt to show that the rule of law had been re-established in Iraq; that victory had been won; that the coalition’s mission had been accomplished in the legal sphere as well as in the military sphere. But clearly, it hadn’t been accomplished. The conditions weren’t there to have a just trial. This wasn’t a Nuremberg-type situation. The equivalent would be if the allies attempted to hold Nuremberg in 1942—in Germany. In this case, the conflict is by no means over, and the trial is taking place at the heart of the conflict geographically. Therefore, it’s effectively simply another battle in the ongoing war.
Do you think the world will ever have a respected international court, where suspected war criminals like Saddam can be tried?
I harbor a degree of skepticism about the possibility of absolute international justice. I think that the best that one can hope for is that there are sufficient trials to deter people.
Will Saddam’s execution mean the end of his other trial, where he is charged with ordering the killing of tens of thousands of Kurds?
Yes. There’s a real problem that if he is executed that trial either will have to come to an end or, if it continues in his absence, will entirely fail to achieve the purpose which it’s ostensibly aiming to achieve, which is to give voice to all the victims in the case and establish the truth of what happened in the late 1980s. And these charges are far more serious because they accuse Saddam not simply of ordering unlawful killings, but of genocide.
But there are other former Iraqi government members also on trial for the crimes against the Kurds. Why would Saddam’s execution stop the whole proceeding?
They’re being tried for several offences, but the most important of them is genocide. And in order to establish guilt for genocide, one has to show an intent to kill people on the basis of their ethnicity. It would be almost impossible to prove Saddam’s intent beyond a reasonable doubt in his absence. There would be a gaping hole in the prosecution’s case.
What would you guess Saddam and his lawyers are doing now?
As I mentioned before, his options are pretty limited. There are some objections that could be raised under international law, but it’s hard to see how that would be done. Presumably, Saddam’s fulminating on making peace with his maker.
