Crimes of empire

As the political establishment and mass media celebrate the November 5 guilty verdict of Saddam Hussein and several former Baath aides as a momentous triumph of international law, a brief reality check should be in order.

The outcome was in fact the orchestrated result of a yearlong courtroom theatrical odyssey worthy of some Judge Judy episodes, though in Iraq the legal proceedings turned more surreal than even the most preposterous TV script.

Hussein and two other high-ranking Iraq officials, Awad Hamad al-Bandar and Barzan Ibrahim El-Hasan al-Tikriti, were found guilty of crimes against humanity for the killing of 148 Shiites at the village of Dujail in 1982, in the midst of the Iraq-Iran War. (A second trial for the murder of up to 100,000 Kurds began in mid-August and is expected to conclude in December.)

Heralded by President Bush as “a milestone in the Iraqi people’s effort to replace the rule of a tyrant with the rule of law,” the trial and its outcome is framed as a process of truth-seeking and reconciliation for Iraq.

Others believe that putting Hussein to death would be a major step toward quelling the three-year-long insurrection that, in recent months, has grown more bloody. Such claims, however, amount to nothing more than fairy tales designed to cover up the real criminality associated with Bush’s invasion and occupation of Iraq.

No doubt Hussein and his lieutenants were guilty of crimes, but other even more egregious crimes—mostly emanating from Washington and London—never were brought before an Iraq tribunal set up to dispense a special form of victor’s justice.

The tribunal has been repudiated across the world as a transparent effort by the Bush administration to cover its own atrocities and violations of international law while deflecting public gaze from its costly and disastrous occupation. None other than U.N. Secretary General Kofi Annan complained that the Iraq proceedings “failed to meet relevant international standards.”

All that surrounds and defines the Baghdad court, buried deeply within the high-security Green Zone—military occupation, puppet government, uncontrollable civil strife and collapse of political order, not to mention full U.S. institutional, logistical and financial support for the entire operation—has reduced both trials to comical farces, their processes manipulated and verdicts foreordained.

From the outset the United States and British architects of the Iraq war subordinated international law to their own self-interests, rudely dismissing the United Nations and then waging “shock and awe” military attacks on civilian populations, as in Fallujah—all based on a phony public-relations campaign.

These are the same outlaws who, in the case of the United States, routinely ignore or violate global treaties; manage torture camps in Afghanistan, Guantanamo and Iraq; and refuse independent jurisdiction at the World Court and International Criminal Court, fearing even minimum constrains on their pursuit of global hegemony. For in Washington, unique among nations, international conventions exist primarily for others, the only acceptable tribunals being those it can fully control.

The first trial was beset with courtroom turmoil from the beginning, its work conducted in a heavily fortified enclave yet riddled throughout with security problems. Three defense attorneys were murdered execution-style, most recently in June 2006 when Khamis Ubaidi was gunned down in Baghdad, severely weakening the defense.

Anyone working for Hussein’s legal team was vulnerable to periodic threats and harassment, a problem so acute it led to a series of boycotts and walkouts, including one organized by the Iraq Bar—a milieu referred to by some as “terrorism in the courtroom.”

At any respectable legal venue, such collapse of legal norms, not to mention security, would be prima facie cause for mistrial, but in Iraq the juridical showcase simply moves toward its programmed conclusion.

The defense was given little time to prepare its burdensome response to the charges; prosecution took all of five months, while defense had to squeeze its case into a few chaos-ridden weeks.

The defense team repeatedly was stonewalled on its motions—for delays, better security, adequate sharing of documents and so forth. Four defense witnesses were arrested soon after testifying on behalf of Hussein or co-defendants. Other witnesses said they were forced to testify under threat of punishment. All of Hussein’s prison interviews were monitored by U.S. intelligence. For Hussein’s lawyers, access to vital documents was often denied. Anyone found to have been in or close to the Baath regime was disqualified from participating in the court.

On December 5, 2005, defense attorneys vacated the courtroom after questioning the legitimacy of the tribunal and requesting in vain access to papers seized by the U.S. Army.

The tribunal was planned, set up and largely subsidized by the Bush administration, which, through its Pentagon liaison office, provided a cadre of legal “advisers” from American universities to oversee every twist and turn in the case. One reason the United States insisted upon an Iraq venue—the defense always had wanted to move elsewhere—was the leverage it could exert through military occupation.

In Baghdad, the United States poured some $128 million into the Iraq tribunal to maximize prospects for a guilty verdict. A crucial aim was to deny the Baath villains a forum in which to raise questions of American guilt for major war crimes. When the first hand-picked chief judge was deemed too “friendly” to the accused, permitting Hussein and co-defendants space to denounce the occupation, he was rudely sacked in favor of Kurdish hard-liner Raouf Abdul Rahman.

That was in January 2006, after an impromptu trip to Baghdad by Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, who warned that U.S. tolerance of judicial “balance” in dealing with the evil monsters of Baghdad had exceeded its limits. Whenever Bashra Khalil, Hussein’s leading attorney, sought to introduce political reality into the trial, Abdul Rahman denied every protest and motion, then in early July denounced Khalil as an ordinary gangster and had her dragged unceremoniously from the courtroom.

Deeper problems mar the tribunal, starting with its absence of legal and political legitimacy. How can a court established under foreign-military occupation, itself the product of an illegal invasion, be considered remotely fair and independent?

Neither the new Iraq government nor the war-crimes body could survive a single day without U.S. military power, which of course lacks any international mandate. Tribunal statutes were created and imposed by U.S. military, political and academic personnel, at odds with the requirements of an independent judiciary.

The first trial, limited to the Dujayl charge, was designed to show that the post-Hussein government is sovereign, efficient and democratic—a strong alternative to the Baath regime. But in actuality we have a state system with no power over such crucial issues as taxation, investment, banking, trade, property rights and media control.

The tribunal itself is a textbook violation of the Geneva Protocols that forbid an occupying power from dismantling domestic institutions in favor of alternatives chosen by the occupier. According to the 1949 Protocols (Section III, Article 53), an occupation force cannot destroy public or private property, alter national institutions or take coercive action against public officials.

Since the tribunal was established by the Coalition Provisional Authority with the Hussein trial alone in its sites, the claim that this is an Iraqi-controlled tribunal allowing people to settle historic accounts with the Baathists is nothing but pure fiction.