Saddam's Defense

Saddam Hussein took the stand in a cross-examination in the massacre of 148 Shiites in the village of Dujail in 1982. Unsurprisingly, Hussein's defense rests on his power as the sovereign ruler of Iraq. Hussein admits that his government executed dozens of Shiites in Dujail, but that doing so was legal because the victims had been involved in an assassination plot against Hussein. This mirrors the defense of the now-deceased former Serbian leader Slobodan Milosevic, who claimed that the acts he committed were done in response to a Kosovar revolt against Serbian sovereign authority.

This, of course, is why it is so difficult to prosecute sovereign rulers for these sorts of crimes. The question is not, and cannot be, whether we approve of Hussein's rule and regime, the Iraqi system of justice under Hussein, the death penalty, or any thing other than whether Hussein violated his power as the political leader of Iraq. The ruler of any country has the power to enforce its laws and hold his country together. Hopefully, the court will be able to demonstrate that these people were killed as a reprisal and had nothing to do with any plot. But it's very likely that that question will not be able to be answered one way or another. Which brings me back to the point I've blogged about many times: Should Hussein go free if his crimes can't be "proven?" My answer has been and still is no.

UPDATE: Over at Opinio Juris, Kevin Jon Heller has an excellent post pointing out that, at the time of the Dujail executions:

at the time of the attempt on his life, the maximum penalty for attempted assassination of the President of Iraq was life imprisonment. Paragraph 223 of the Iraqi Penal Code of 1969 prescribes death for murdering the President. Paragraph 31(1), however, expressly provides that the punishment for attempting a felony punishable by death is not death but life imprisonment.

In light of Paragraph 31(1), it is clear that Saddam did not have the authority to order the executions even if the villagers were involved in the assassination attempt. By signing the execution order, therefore, Saddam essentially admitted that he committed willful murder as that charge is defined by the Article 12(1)(A) of the IHT Statute.

Assuming Heller is right, Hussein's defense seems to have provided the prosecution with the rope with which to hang him. Literally.