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Saddam Hussein’s Nov. 5 guilty verdict and death sentence have provoked polarized responses. Human rights organizations and many in the international press have sharply attacked the outcome as the product of a markedly unfair trial, deeming it a setback for international justice and warning that it will stoke internal tensions and increase sectarian strife. Others have praised the result, calling Hussein a tyrant clearly guilty of the crimes charged, and whose death is a necessary precondition to democracy in Iraq. Both sides may be right. The underlying charges against Hussein stem from a failed assassination attempt on the Iraqi ruler during his 1982 visit to Dujail, a village north of Baghdad. In response, his government arrested hundreds in Dujail, executing some 148 men and boys, banishing others to the desert, torturing many victims and razing the farming town’s orchards. The Dujail reprisal received far less international attention than Hussein’s Anfal campaign and use of chemical weapons on the Kurds in northern Iraq, his destruction of the marsh Arabs in the Iraqi lowlands and other notorious events. But the Iraqi Special Tribunal, established to try Hussein and others, selected Dujail as its first trial largely because of its perceived simplicity. The case involves a discrete set of facts, and the documentary evidence linking Hussein to the Dujail reprisal is strong. The judges and prosecutors who staff the tribunal lacked experience in major complex trials and thought this seemingly straightforward case could provide such hands-on training. But the inexperience of the judges and lawyers, coupled with overt political pressures on the court and the instability in Iraq, cast a pall over the proceedings. Three defense attorneys were murdered during the case and another fled the country out of fear, demonstrating the lack of security for the trial’s participants. The judges’ lack of familiarity with the pertinent law was apparent. There was ample testimony from anonymous witnesses, the court inexplicably precluded defense witnesses from testifying and the prosecution offered witnesses and evidence without prior disclosure to the defense. Perhaps most troubling was the midtrial resignation of the chief judge. Selected for his independence, he stepped down citing serious political pressure-a credible complaint given the recent removal of the chief judge in the second Hussein case for perceived defense sympathy, and declarations by the Iraqi prime minister that Hussein’s execution in the Dujail case would undermine the insurgency. Those procedural failings must be considered substantial. They led many to see the verdict as “an exercise in vengeance,” as the Times of London termed it. The result, the BBC noted, could inflame Hussein’s supporters and reinforce “the divisions in the country.” Yet the verdict itself is patently consistent with the courtroom evidence. Hussein openly admitted that he issued the order that led to the Dujail executions. The excessiveness of his regime’s violent response to the assassination attempt virtually guaranteed the guilty verdict. Given that fact, in conjunction with Hussein’s notoriety for crimes that place him in the upper echelons of despotic brutality, it is no surprise that many are willing to ignore the trial’s procedural flaws and call his execution long overdue. And while the likely execution may inspire domestic violence, Hussein’s demise, London’s Daily Telegraph opined, “is certainly a necessary” condition “for the establishment of democracy in Iraq.” Transparency was crucial factor While the accuracy of that forecast can only be assessed months (perhaps years) down the road, there is little doubt that merely placing Hussein on trial in a transparent setting-televised for Iraqis and the world to witness-is a victory in itself for Iraqi and international justice. His documented crimes in Dujail help to create and solidify a much needed historical record. The nine-month proceeding also stands in stark contrast to Hussein’s legal system, in which 143 people accused of Dujail-related crimes were tried and executed in a span of weeks. Placing a tyrant on trial for his crimes, as opposed to shooting him on sight or letting him retire in the protected comfort of a friendly country, as often occurs, is an equally important nod to legalism. To look at the case in its totality, the procedural defects certainly place the trial well below accepted international standards. Nor is it fit to serve as a cornerstone for the fledgling Iraqi legal system, as was originally hoped, or a model for putting other former leaders on trial. But while the conduct of the case may be a disappointing step backward, and the outcome may increase factional tensions, an open trial of a murderous dictator for acts of rank oppression, with a guilty verdict that squares with the evidence, must be considered a big step forward. Jonathan Drimmer practices international litigation at Steptoe & Johnson LLP in Washington, and teaches courses related to war crimes at Georgetown University Law Center. He is a former deputy director of the Justice Department’s Office of Special Investigations.

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