The trial of Saddam Hussein ended in disarray and disaster. Who can forget the grainy footage of hooded henchmen taunting the former dictator as he approached the gallows? The most cataclysmic moment in many Iraqis' lives was reduced to a thirty-second clip on YouTube. But while the ending to that sorry chapter in Iraqi history will be long remembered, its beginnings have been too often overlooked. The decision to try Saddam by Iraqi judges in an Iraqi court under Iraqi law was controversial, to say the least. Sympathizers of Saddam viewed it as victor's justice, a kangaroo court orchestrated by Washington. Human rights groups, meanwhile, accused the court of not upholding international legal standards of due process. The preferable model, they say, would have been a hybrid court that melded international and domestic law and combined both local and foreign judges. So why was such a court not instituted?
The answer, suggests Joost Hiltermann of the International Crisis Group and author of the new book, A Poisonous Affair: America, Iraq, and the Gassing of Halbja. There were fears in Washington that politically damaging information might be unearthed about America's role propping up Saddam during the 1980s. "Once Saddam's regime was overthrown," he recently told Ken Silverstein of Harper's Magazine, "the Bush Administration made sure that instead of an international (or even a mixed Iraqi/international) tribunal, a purely Iraqi tribunal was established under strict U.S. control, with statutes written, essentially, in Washington." The perceived miscarriage of justice had a disastrous effect on Iraq, not to mention the larger global effort to try dictators and other war criminals. "The tribunal's evident partiality," Hiltermann continued, "along with other serious procedural problems, undermined its credibility and thereby also undermined the cause of justice and stability in postwar Iraq."
So what was Washington trying to hide? Donald Rumsfeld, as special envoy to President Reagan, visited Baghdad twice, in 1983 and in 1984, and met with Saddam Hussein ostensibly to reaffirm American support for Iraq against the Iranians during their eight-year war. According to a March 2005 article by Ari Berman in The Nation, Washington supplied Baghdad with landmines while "American companies, with the government's approval, sold the chemical agents used against Iranian troops and Iraq's own Kurdish population." Or as Hiltermann puts it, "Rumsfeld reassured the Iraqi leadership that it had broad latitude in prosecuting the war against Iran, including by using poison gas. Along with the Reagan administration, he thereby helped build up a state that terrorized its own citizens and turned a tinpot dictator into a tyrant threatening the region."
Hiltermann details how the State Department, fearing that embarrassing information might come to light, tried in the late-1990s to erase America's footprints in Iraq. Washington, he told Harper's, "was extremely worried that past American support of the Saddam regime would not only be exposed, but also be used to undermine a case against the regime as part of a future U.S.-supported tribunal. Therefore, it ordered its lawyers to conduct a document review to determine whether its Iraq policy, especially regarding chemical weapons use, would disqualify the U.S. from participating in efforts to bring the regime to justice."
The tragedy of Iraq, of course, does not begin in 2003 but stretches back several decades. To bring any sort of closure to this sordid chapter in history, some form of truth and reconciliation commission, not unlike post-apartheid South Africa, should have been established (outside of the Iraqi High Tribunal) to determine what happened under Saddam and which Baath Party members were implicated in his atrocities. Perhaps that might have paved the way to easier, or at least more manageable, national reconciliation among Iraq's warring factions today. Instead, the Iraqi court that tried Saddam and his henchmen devolved into a farce. There was little public outreach, as Michael Scharf of the Case School of Law notes, so Iraqis were kept in the dark. And powerful forces, not just in Baghdad but also in Washington, prevented a complete airing of Saddam's crimes for reasons unknown but which Rumsfeld might know.
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