The Tokyo trial of 1946 established the principle of "command responsibility" -- the duty of a military or civilian commander to prevent military personnel from committing war crimes and crimes against humanity.

The Nuremberg trial followed the same principles in line with the London Agreement signed in 1945 by US, UK, France, and USSR, in which the accused were charged with crimes against peace; war crimes i.e. violation of laws and customs of war; and crimes against humanity such as extermination of racial, ethnic and religious groups and other large-scale atrocities against civilians.

At Nuremberg the judges refused to accept the argument that the accused were not legally responsibly for their offences as these were performed under the orders of superior authorities.

Civilization demands that if there is a conflict between the laws of the land and the commonly accepted moral code of conduct then the legal orders of the day do not have precedence over the other. As the Nuremberg Tribunal put it: "The test is not the existence of the order but whether moral choice (in executing it) was in fact possible."

Though, in the cases of Nuremberg, Tokyo, and Saddam trials, the commonality is found in the fact that all were being conducted by the victors/occupying powers, in Saddam's case the defense raised the argument that the formation of the Iraqi High Tribunal (IHT) by the occupying power (US) violated the Geneva Convention. The prosecution responded that the legitimacy should be found in the ex post facto approval of the Tribunal's statute by the elected Iraqi National Assembly in August 2005.

Professor Michael Scharf has opined that in convicting Saddam Hussein the principles of direct responsibility and command responsibility establishing criminality has to be established that Saddam Hussein had issued orders for the attacks and the subsequent brutalization of the civilians living in Dujail or failed to prevent or punish subordinates for unlawful acts.

The Tribunal apparently rejected the defense argument that the action taken in Dujail was to punish terrorists who tried to assassinate then President Saddam Hussein. But then the international community could call for a comparison of Saddam's brutalities with those of the occupying powers in terms of necessity, proportionality, and treatment of subordinates.

It is being said that the US had initially tried to persuade the Iraqis to exclude capital punishment from the IHT Statute but failed because it could result in the "paradox of inversion" as seen in the Rwanda Tribunal where the most culpable perpetrators escaped death sentences but the lesser mortals tried by Rwandan domestic courts were sentenced to death.

The Iraqis also wanted to avoid the Napoleonic precedent, that unless Saddam Hussein and his collaborators were hanged the possibility of a Baathist resurrection could remain a theoretical possibility. Besides international law does not outlaw capital punishment.

Britain, however, being a state party to the European Convention on Human Rights and its two protocols relating to the abolition of death penalty, found it difficult to acquiesce in the execution of Saddam Hussein, despite the British claim of Iraq being an independent and sovereign country.

The Saddam verdict has elicited mixed reactions. Understandably the Anglo-US reactions have emphasized the independence of the Iraqi judiciary and happiness that finally Saddam Hussein has been called to account for his appalling crimes. Neighbouring Kuwait and Iran echoed these sentiments.

But France and Spain have looked at the verdict from different angles. While France fears that the verdict could incite further violence inside Iraq, Spain notes that death penalties are "not provided in any legal system in the EU."

The UN High Commissioner for Human Rights has called for a moratorium on execution while the UN Special Rapporteur on independence of lawyers and judges has urged immediate establishment of an international tribunal to either reopen the proceedings or consider an appeal process. He has cast doubt on the legitimacy and credibility of the tribunal as it was formed during an occupation considered by the vast majority of the world as illegal.

These arguments are not being given to minimize the brutalities perpetrated by Saddam regime. The arguments are for a fair and transparent trial conducted in accordance with international standards and not influenced by the "primordial loyalties" inherent in tribalism.

It is evident from the fact that while about one thousand protestors marched the streets of Tikrit, Saddam's hometown, the Shiite-dominated South celebrated the death sentence handed out to Saddam Hussein and Prime Minister Nouri al-Maliki hoped that "the execution could partially appease the victims and stop the tears of the widows and orphans" victimized by Saddam's regime.

The Middle Eastern press, by and large, has dismissed the trial process as a farce and

some have predicted that as Iraqis and Arabs in general still view Saddam Hussein as a hero, the verdict will increase his

popularity and by contrast make the Americans more unpopular.

A Jordanian paper has posed the question as to when a third case, after Dujail and Anfal, would be held to try the occupiers for "the massacre that took the lives of dozens and hundreds of Iraqis in Falluja or in other Iraqi cities and villages."

Even the Israeli paper Ma'ariv has described "this as the most ridiculous political trial in history," and Ha'artez feels that "a court ordered execution lacks the cathartic power it might otherwise have had. It can neither close a chapter nor open a new era."

Both Iraq and the Arab world will now have to gauge the reaction of the people on the streets about the verdict and then chart their political plans. As it is, these countries are going through a transformational phase of a choice between embracing modernity and going back to the fundamentals of Islam where theocracy will be a mix of both temporal and spiritual powers.

History is replete with periods of brutal dictatorships seen in the twentieth century and before. For civilization to prosper, transparency and accountability are essential ingredients in personal, national and international conduct. This argument alone should have afforded even a vile dictator like Saddam Hussein a non-controversial trial. The world, then, would have been a better place to live in.

Kazi Anwarul Masud is a former Secretary and Ambassador.