JURIST Guest Columnist Michael Kelly of Creighton University School of Law says that the trials of Saddam Hussein should continue and his death sentence in the Dujail case should be stayed at least until two other key proceedings against him are completed…

Saddam Hussein has been sentenced to death by hanging for his role in the massacre of 148 Shi’ites in the town of Dujail in 1982. Much of the world’s reaction has been neutral, characterized by muttering about not wanting to contribute to violence within the country, except for NGOs which predictably condemned the proceedings as unfair and/or illegal. But Konstantin Kosachev, Chair of the Foreign Affairs Committee in the Russian Duma, called it as he saw it:

Today's ruling was quite predictable, given the attitudes to Saddam Hussein's regime that exist both in and beyond Iraqi society. The punishment was deliberately chosen to be the harshest. . . . I think that the death sentence on Saddam Hussein is unlikely to be carried out. It will be stopped one way or another, either at the level of the Iraqi president or by other means. This is more of a moral ruling, revenge that modern Iraq is taking on the Saddam Hussein regime.

Chairman Kosachev’s assessment was refreshingly candid. Under Iraqi law, Saddam’s sentence is automatically appealed to a nine member judicial panel which is expected to take a month to review the case. If confirmed, then Saddam must be put to death within 30 days. However, as Kosachev indicated, anything can happen. Based on the track record of this trial, he is probably right.

This first in a series of planned trials of Saddam Hussein was conducted under the auspices of the Iraqi High Tribunal, successor to the Iraqi Special Tribunal, which was created by L. Paul Bremmer and the Coalition Provisional Authority. Never regarded as legitimate, that body was clothed sequentially with approval from the CPA’s hand-picked Iraqi Governing Authority, then the appointed provisional parliament, then finally the fully elected parliament — which induced the name change.

Chaos ensued once Saddam was put in the dock and courtroom antics became the norm, much as in the case of Slobodan Milosevic’s trial. However, unlike Milosevic’s trial, where the international tribunal marginalized him and continued assiduously following standard trial procedure, the IHT did not seem to know how to deal with Saddam and regularly breached normal procedure to essentially conduct much of this trial in absentia. These theatrics occurred against the grim backdrop of multiple assassinations carried out against three of Saddam’s defense lawyers. A fourth fled the country in fear for his life.

The judges themselves were not immune from political machinations. Chief Judge Rizgar Amin resigned under pressure from Shi’ite political leaders who claimed that he was not running the trial correctly. Judge Amin protested against political interference in the trial. He was replaced with Raouf Abdel Rahman. In Saddam’s second trial, for the Anfal campaigns against the Kurds, Chief Judge Abdullah al-Amiri was sacked by the Prime Minister for his alleged bias in favor of Saddam and replaced with Muhammed al Ureybi.

Because of attorney killings and political interference, discontinuity and a lack of judicial independence have plagued this court since its inception, underscoring Chairman Kosachev’s general assessment that anything can happen. U.S. officials have even opined that Saddam’s trials may continue posthumously if he is in fact hanged. That is probably likely for the current Anfal trial against the Kurds, which is in progress, but highly unlikely for the five other crimes with which he is charged.

The IHT considered delaying the verdict against Saddam for two weeks, but abruptly reversed itself and issued the decision on the weekend before elections in the United States. These mid-term elections are widely regarded as a referendum on the Bush Administration’s policies in Iraq and Republicans are on the ropes in many races. U.S. and Iraqi officials deny that the timing was deliberate.

The question of whether this verdict will incite more violence in Iraq remains to be seen. However, since the country is already for all intents and purposes in the throes of a civil war, it is likely to lead only to further recriminations on both sides rather than an all-out conflagration. Prime Minister Nouri al-Maliki claims that the verdict closes the chapter on the Saddam era, and will allow the country to move forward united. While his hopes are laudatory, they are fundamentally misplaced.

Saddam and his trials are not what the fighting is about. The trials are a sideshow to the real question of who will control Iraq or its sub-parts. When the British established the country from the ashes of the Ottoman Empire, welding together the Kurdish Mosul province with the Sunni Baghdad province and the Shi’ite Basra province, they disregarded the animosity each of the three groups harbored toward one another. Successive hard-line strongmen provided the necessary glue to hold Iraq together, very similar to the method employed in Yugoslavia. But when that glue is removed, the country’s natural tendency is to fly apart into its constituent units, just as in the case of Yugoslavia. Saddam’s trial has no more bearing on this process than the trial of Tito would have had for the Yugoslavs or that Milosevic ultimately did — Yugoslavia is still disintegrating, with Montenegro leaving Serbia last summer and Kosovo to follow.

What Saddam’s trial can do, however, is to contribute to the growing jurisprudence on genocide. It is much more important for the development of this area of law that Saddam’s current trial for the Anfal campaigns against the Kurds and the upcoming one on the gassing of the town of Halabja continue unabated. President Talabani, a Kurd himself, should stay the execution of Saddam until the completion of those two trials.

The resounding elimination of sovereign immunity as a defense for crimes of genocide must be more firmly established within international law and domestic law, and verdicts on this point are of much greater importance than the first trial. The main reason that the Dujail trial went first was the high quality of irrefutable evidence. Posthumous trial in absentia would weaken the impact of those genocide cases. Thus, I hope that Chairman Kosachev is right and Saddam's sentence will be stayed at least through the next two trials. Not for Saddam’s sake, as he deserves the death penalty many times over. But for the sake of the law.

Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is author of Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005) with a foreword by Desmond Tutu, winner of the 2006 Book of the Year Award from the U.S. National Chapter of L’Association Internationale de Droit Pénal.
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