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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 1
January 6, 2007

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Rights Investigation

Saddam Hussein's Execution

A serious miscarriage of justice

Barrister Harun ur Rashid

Saddam Hussein was hanged in early morning on 30th December, the first day of Eid ul Zoha. It was a gross miscarriage of justice and is pure revenge by Shi'ite Iraqi government. Some say it borders on barbaric justice. His execution is simply a judicial murder.

He was a cruel dictator and he had little conscience. He should be tried for his crimes but the trial should be fair and above board.

What is justice?
An alleged criminal has a right to get both substantive and procedural justice. Substantive justice means that an accused should be punished for his alleged crime but confession of guilt by torture is not allowed because it violates procedural justice.

Procedure of the trial is pre-announced and prescribed so that the accused is aware of the processes of trial and in midway of a trial, procedure cannot be changed. For instance, during a football game, the goal posts cannot be shifted or changed. Both substantive and procedural justice are important for trial and that is why for criminal justice, Bangladesh has not only the Penal Code but also the Procedural Code.

Why was he hanged?
From the very beginning, there is a view that President Bush has been keen to hang Saddam Hussein for two reasons: (a) he wants to take revenge on the attempt of assassination when his father visited Saudi Arabia some years ago by alleged Saddam's supporters, and (b) to show the Iraqi people that Saddam Hussein will never come back to power so that Sunnis would stop violence.

It is suspected that motivated by the aforesaid considerations, President Bush welcomed the execution of Saddam, hailing as an "important milestone" on the road to building an Iraqi democracy but warned it will not end deadly violence. It is not understood how the President could arrive at this conclusion when Saddam Hussein has had no apparent role in violence.

Moreover the Baker-Hamilton report on the Study of Iraq recommended, among others, efforts for reconciliation between Shi'ites and Sunnis as one of the strategies for Iraq. How can reconciliation be done when a deposed Sunni leader of Iraq was hanged? It is simple as that.

There are four groups that have been fighting in Iraq against the US occupation. The Iraqi nationalists, the Al-Qaeda followers, the Shi'ites and lastly Sunnis are fighting against foreign occupation.. Each group has its own reasons to fight and create instability in the country.

Why does the trial constitute gross miscarriage of justice?
There are many reasons and some of them deserve mention as follows:
(i) Saddam was charged with crimes against humanity. It is an international crime. Many legal experts say an international tribunal should have conducted the trial of Saddam Hussein. The tribunal could have a few Iraqi judges in the tribunal.
(ii) it has been reported that the court failed to provide in advance to defence lawyers important documents. As such they could not prepare defence case for Saddam Hussein
(iii) Reportedly there was continuous political interference on the court by the government. The last chief judge was sacked by the government. The independence of the court was severely curbed.
(iv) The court was created during the 15th month American occupation in Iraq . Many legal experts say that it was an American trial for Saddam Hussein, executed and remotely controlled by the US.
(v) Furthermore the Court lost track of paper work and kept no written transcript, according to the New York-based Human Rights Watch. The verdict of death sentence was challenged by Human Right Watch in its 97-page report indicating that the Iraqi Court was not equipped with such a complex case of international crimes.

What implications of hanging ?
The hanging has made Saddam Hussein a martyr in the Sunni world. Libya has declared three day mourning. Afghanistan's President Karzai criticised the hanging. The people of the Islamic world from Morocco to Indonesia (except Kuwait, Iran and Iraq) are shocked and expressed anguish at the hanging of a person whose trial was flawed from the start to finish, although the reactions from the government are muted.

Iraq is likely to experience more violence in the coming months. US soldiers will be killed and already 3,000 have been dead in Iraq. Sunnis and Shi'ite will kill each other through bombs and grenades. Some suspect that Iraq will be disintegrated into three separate zones or countries- dominated by Kurds, Sunni and Shi'ite. Saddam's hanging is a severe blow to the unity of Iraq.

The hanging will alienate further America in the Middle East and the Bush administration's story that it is an Iraqi trial without any American input or influence is likely not to be believed. People are not stupid to fathom the factors behind the hanging.

Many in the Arab world say that Saddam Hussein should have taken poison when he was captured by the US army. He was perceived a coward by Arabs. Hitler and Goebbles committed suicide before Russian army came to capture them. Many Arabs believe that he should have followed the same fate.

Death penalty is inherently cruel. Human life is not created by human beings, so they cannot take away life of an another human being. In this case, the hanging of Saddam as a result of a flawed trial is indefensible.

The author is Former Bangladesh Ambassador to the UN, Geneva.


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