Saddam Hussein debate

[spot]

Welcome to the Westcliff Debate on Saddam Hussein.

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A Motion was made, the Question being that

this House finds Saddam Hussein innocent

The motion is proposed by spot and opposed by RedGlitter. Following opening statements there will be a second and third round in which rebuttal will be heard. A final fourth round will allow each participant to sum up and conclude the debate.

[spot]

Saddam Hussein Abd al-Majid al-Tikriti, Chairman of the Iraqi Revolutionary Command Council, Prime Minister and 5th President of Iraq, was executed last December.

The country of which he was leader and Head of State was invaded by a coalition of allied nations, consisting 9:1 of US:UK forces, in March 2003, and occupied in April 2003. Saddam became a hunted fugitive until December 2003 when he was taken into US custody near his birthplace, Tikrit. He remained in US custody until 30th December 2006 when he was handed over to vetted Shi'a supporters of Muqtada al-Sadr for execution at a joint Iraqi-American military base in Baghdad.

To successfully argue that Saddam Hussein was innocent requires two things. We need to demonstrate firstly that he was tried under the control of a foreign power and hence under very clear international, and not domestic Iraqi, laws. We need to demonstrate secondly that under those international laws he had committed no convictable crime.

The laws applied by the Iraqi trial were an amalgam of pre-2003 Iraqi law and aspects of International law, pronounced for use by the court under a decree of the Director of Reconstruction and Humanitarian Assistance for post-war Iraq, Paul Bremer. He headed the Coalition Provisional Authority, reported to the US Secretary of Defense and exercised authority over Iraq's civil administration.

Iraq, since April 2003, has not been a sovereign country. It has been, and still is, a country under foreign occupation. Its laws are not the laws of a sovereign country, they are the laws of a country under foreign occupation. A simple test can be applied to determine a nation's sovereignty: does it control its own foreign policy? Iraq does not. The presence of an elected assembly is no test, least of all when those elected to it were pre-vetted by the occupiers, and when any prospective candidate inimical to the interests of the occupation was refused space on the ballot. Political power in Baghdad is solely a property of the US. Any political trial in such circumstances - and Saddam's was a political trial - can only have legitimately been judged inder international, and not domestic Iraqi, law.

Had the trial been held in the truly international setting of a properly constituted International Court modelled on the Nuremberg and Yugoslav tribunals, or alternatively a United Nations court modelled on that of Rwanda, the verdict would have been visibly impartial. What happened in Baghdad was anything but that. The presiding judge, Rizgar Mohammed Amin (sitting, quite properly, without a jury) quit mid-way through the trial citing government interference and was replaced. The deputy presiding judge, Said Hameesh, was fired part-way through the trial. A third of the initial five judges, Barwize Mohammed Mahmoud al-Merani, was assassinated. Three defence lawyers were murdered during the course of the trial, including the lead attorney. Communications from the court were censored in such a way that sound, vision or both disappeared frequently when the defence or the accused were addressing the court. It was all a sadly kangaroo affair and nobody can pretend that justice was served. This deeply flawed trial was as much a matter of propaganda and revenge as the subsequent execution. For these reasons I shall ignore it and concentrate on the verdict of the hypothetical international tribunal which should actually have considered matters. It would have dealt with exactly the same charges. I believe it would have applied recognised International law. I'm confident it would have found Saddam innocent of the charges brought against him.

That is the setting in which I intend to discuss the crimes with which he was charged, and the law by which he should be judged. To summarise the possible charges,

• Saddam was accused of ordering the killing of 148 Shiites from Dujail, in retaliation for the failed assassination attempt by members of the Islamic Dawa Party on 1982-07-08 during the Iran-Iraq war.
• He was accused of responsibility during 1988, the eighth year of the Iran-Iraq War, when Iraq dropped poison gas on the Kurdish city of Halabja, then held by Iranian troops and Iraqi Kurdish peshmerga guerrillas allied with Tehran. The poison gas attack was defined as an act of genocide by Human Rights Watch and was the largest scale chemical weapons attack to affect a civilian population in modern times.
• He was accused of ordering a war of aggression against Kuwait in which evidence might suggest that war crimes were committed.
• He was accused of the arrest, torture and execution of thousands of political opponents during his tenure as Iraqi leader.
• He was accused of state sponsorship of terrorism, having offered thousands of dollars to the families of Palestinian suicide bombers as compensation for their dead relatives' final act. The International Convention for the Suppression of the Financing of Terrorism makes these acts unlawful.
• During the second Gulf War, Iraqi forces employed a blend of unconventional tactics and terrorist tactics (such as suicide bombings at American checkpoints) to fight back when they found themselves unable to fight American and British forces on the open field of battle. Military theorists call these tactics "asymmetric" and Saddam as the commander of the Iraqi army, under the doctrine of command responsibility, could be held responsible if these actions were held to be war crimes.

So, under international law, consider what defence is available to a Head of State. Rather than express an irrelevant personal opinion, I bring the following evidence discussing the immunity from prosecution enjoyed by ex-Heads of State, from the appeal of ex-President Pinochet of Chile to the House of Lords in March 1999, from which I have edited out references:

The fact that acts done for the state have involved conduct which is criminal does not remove the immunity. Indeed the whole purpose of the residual immunity ratione materiae [that is, as a function of his having held that office] is to protect the former head of state against allegations of such conduct after he has left office. A head of state needs to be free to promote his own state's interests during the entire period when he is in office without being subjected to the prospect of detention, arrest or embarrassment in the foreign legal system of the receiving state. The conduct does not have to be lawful to attract the immunity.

It may be said that it is not one of the functions of a head of state to commit acts which are criminal according to the laws and constitution of his own state or which customary international law regards as criminal. But I consider that this approach to the question is unsound in principle. The principle of immunity ratione materiae protects all acts which the head of state has performed in the exercise of the functions of government. The purpose for which they were performed protects these acts from any further analysis.

There are only two exceptions to this approach which customary international law has recognised. The first relates to criminal acts which the head of state did under the colour of his authority as head of state but which were in reality for his own pleasure or benefit. The examples which Lord Steyn gave of the head of state who kills his gardener in a fit of rage or who orders victims to be tortured so that he may observe them in agony seem to me plainly to fall into this category and, for this reason, to lie outside the scope of the immunity. The second relates to acts the prohibition of which has acquired the status under international law of jus cogens [compelling law]. This compels all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes [for everyone] to punish such conduct. As Sir Arthur Watts QC said, in respect of conduct constituting an international crime, such as war crimes, special considerations apply.

Nobody is arguing that the crimes of which Saddam was accused were not crimes. Whether he was immune from prosecution because he engaged in them as Head of State of Iraq is the issue. In doing what he did, was he acting for the benefit of Iraq or for personal reasons? If he was acting on behalf of his country, were his actions war crimes? If he was acting on behalf of Iraq and the acts were not war crimes then Saddam was innocent.

Here, then, is a breakdown of the possible charges and a suggestion at least of why each might not stick.

• Saddam was accused of ordering the killing of 148 Shiites from Dujail, in retaliation for the failed assassination attempt by members of the Islamic Dawa Party on 1982-07-08 during the Iran-Iraq war.

  Iraq at this point had been at war with Iran for two years. An assassination attempt was made on the Head of State. Is it evident beyond reasonable doubt that the subsequent killings in Dujail were ordered by Saddam for reasons of personal revenge, as opposed to a deterrent in time of war? I would suggest not. That leaves the quesiton of whether the killings amounted to a war crime. To qualify, they have to be crimes which are "part of a plan or policy or as part of a large-scale commission of such crimes". I suggest that they arew a one-off response to a specific action and again do not qualify.

• He was accused of responsibility during 1988, the eighth year of the Iran-Iraq War, when Iraq dropped poison gas on the Kurdish city of Halabja, then held by Iranian troops and Iraqi Kurdish peshmerga guerrillas allied with Tehran. The poison gas attack was defined as an act of genocide by Human Rights Watch and was the largest scale chemical weapons attack to affect a civilian population in modern times.

  A report entitled "MARINE CORPS HISTORICAL PUBLICATION FMFRP 3-203 - Lessons Learned: Iran-Iraq War, 10 December 1990" by the CIA's senior political analyst for the Iran-Iraq war describes the opinion of the US to all uses of chemical weapons between 1980-1988. It concludes (in Appendix B) that it was in fact Iran that was responsible for the attack, an assessment which was used subsequently by the Central Intelligence Agency (CIA) for much of the early 1990s. The CIA altered its position radically once Iraq was considered a US target rather than a US asset. The US has often switched responsibility for unclear events like this to whichever country is least in favour. Blame for the Lockerbie bombing is a case in point.
  
  Perhaps Iraq was indeed responsible for this particular chemical attack. Certainly both Iran and Iraq employed chemical weapons on occasion during the conflict. The Kurds were in active revolt against Iraq at the time, the target was occupied by Iranian regular as well as Kurdish peshmerga guerrillas. Granted that chemical weapons were deployed in the Iran-Iraq war it doesn't seem certain that an International Court would judge this use to be a war crime even if the responsibility were genuinely proven to be Iraq's.

• He was accused of ordering a war of aggression against Kuwait in which evidence might suggest that war crimes were committed.

  A determination that war crimes were committed by Iraqi troops in Kuwait as "part of a plan or policy or as part of a large-scale commission of such crimes" would find Saddam guilty, but I have yet to see any suggestion that such evidence exists. Stories circulated such as premature babies dying when their hospital units were stripped have been shown to be US propaganda inventions designed to whip up domestic support for Gulf 1 prior to the war. I have no reason to believe that Saddam would have been found guilty at an International Tribunal on this count.

• He was accused of the arrest, torture and execution of thousands of political opponents during his tenure as Iraqi leader.

  So was General Pinochet of Chile, to take an example - 30,000 in his case. While Chile chose not to prosecute the General for these undounted crimes, it had at least the jurisdiction to do so. Iraq during the US occupation did not. The UK's House of Lords, considered whether immunity from international prosecution covered the General on these identical charges, and decided that it did.

• He was accused of state sponsorship of terrorism, having offered thousands of dollars to the families of Palestinian suicide bombers as compensation for their dead relatives' final act. The International Convention for the Suppression of the Financing of Terrorism makes these acts unlawful.

  I would merely note in passing that elements of the Saudi Arabian government were doing just the same at the time, and nobody was making any gestures toward stopping them. The selectivity of application of such an obscure charge trivializes this to yet another instance of Victor's Justice.

• During the second Gulf War, Iraqi forces employed a blend of unconventional tactics and terrorist tactics (such as suicide bombings at American checkpoints) to fight back when they found themselves unable to fight American and British forces on the open field of battle. Military theorists call these tactics "asymmetric" and Saddam as the commander of the Iraqi army, under the doctrine of command responsibility, could be held responsible if these actions were held to be war crimes.

  Is asymmetric warfare a war crime? It matches the behaviour of guerilla warfare throughout the ages. It is identical to the practice of the French or Norwegian Resistance movements. Saddam would presumably have also argued that he had neither contact nor control of the Iraqi Resistance after the occupation of Baghdad and I would find that probable.

To conclude, I argue that

• Saddam's crimes could have been tried, and he found guilty of Iraqi crimes, by an Iraqi court only if an independent Iraqi court could have been constituted, and that under the US occupation this was impossible.
• Saddam's crimes could have been tried, and he found guilty, by either an International or a UN court but that they weren't.
• an International court would have considered Saddam to have acted on behalf of the Iraqi state in all of these areas discussed, and to have the corresponding immunity shown to a head of state.
• in all areas where immunity is not allowed by an international court (waging aggressive war, crimes against humanity, war crimes, piracy, genocide, slavery, and torture on a scale as to be "part of a plan or policy or as part of a large-scale commission of such crimes") nothing done by Saddam as Head of State in Iraq would have lead to a guilty verdict.

Sadly it is now impossible to bring Saddam before an International Court to investigate his acts in detail. He has been killed by an extrajudicial and illegal process at the instigation and under the direct control of the US White House administration. I contend that no validly constituted court has found Saddam guilty of any crime and that therefore this House finds Saddam Hussein innocent.

[RedGlitter]

From his seize to power in 1979, Hussein was directly responsible for the following:

• The use of poison gas and other war crimes against Iran and the Iranian people during the 1980-88 Iran-Iraq war. Iraq summarily executed thousands of Iranian prisoners of war as a matter of policy.

• The "Anfal" campaign in the late 1980's against the Iraqi Kurds, including the use of poison gas on cities. In one of the worst single mass killings in recent history, Iraq dropped chemical weapons on Halabja in 1988, in which as many as 5,000 people -- mostly civilians -- were killed.

• Crimes against humanity and war crimes arising out of Iraq's 1990-91 invasion and occupation of Kuwait.

• Crimes against humanity and possibly genocide against Iraqi Kurds in northern Iraq. This includes the destruction of over 3,000 villages. The Iraqi government's campaign of forced deportations of Kurdish and Turkomen families to southern Iraq has created approximately 900,000 internally displaced citizens throughout the country.

• Crimes against humanity and possibly genocide against Marsh Arabs and Shi'a Arabs in southern Iraq. Entire populations of villages have been forcibly expelled. Government forces have burned their houses and fields, demolished houses with bulldozers, and undertaken a deliberate campaign to drain and poison the marshes. Thousands of civilians have been summarily executed.

• Possible crimes against humanity for killings, ostensibly against political opponents, within Iraq.

To have let Hussein live, albeit in prison, would have left open the possibility of his return to power, jeopardinzing not only the lives of Iraqis but the United States' national interest.
When Napoleon was exiled, he returned causing anarchy and war. When Caesar defeated enemies in the first Roman civil war, he gave amnesty to the Roman senators (such as Brutus and Cassius) who had caused war against him. In return for this consideration, they orchestrated Caesar's assassination, this causing the second Roman civil war.

In the matter of Hussein not receiving a fair trial, in a domestic criminal trial, the procedure's main and simple function is to minimize the likelihood of an innocent person being sent to jail. We know Hussein was not innocent. A fair trial is not uniform in its procedures across the land. Procedures vary and can be limited or adjusted in the cases of soldiers, ordinary civilians in territories subject to military rule (ie; Civil War, World War II) spies, political defendants (such as those being impeached) and further.

Saddam Hussein was not an ordinary criminal defendant and so did not warrant the criminal defense protections that fairness provides ordinary criminal defendants. Some will argue that he deserved no fairness protections at all.
The function of criminal procedural protections is to prevent wrongful conviction of an innocent person, then as we know Hussein was not innocent, there was no reason to apply these procedures to him. The argument is purely political.