The trial of Saddam Hussein is once again in the headlines. The first case against him, concerning the 1982 mass arrests and killing of Shi'ites at the town of Dujail, has been concluded. Presiding Judge Raouf Abdel-Rahman charged Saddam with the deaths of nine villagers, torture of women and children, ordering the razing of farmlands and arresting nearly 400 Dujail residents. He was not charged in connection with the deaths of 148 people who were executed after being found guilty by Saddam's Revolutionary Court for their involvement in an assassination attempt against him. (Jurist, May 15) Now the second phase opens, concerning the far more horrific attacks on the Kurds in the 1987-8 "Anfal" campaign. Saddam could continue to be tried posthumously if he is found guilty and sentenced to death on the Dujail charges, in which a verdict is expected in October. If a death sentence is upheld on appeal, it must be carried out within 30 days, and this could occur before the second trial is concluded. (Jurist, Aug. 19)

In the new trial, Saddam and six co-defendants are charged with genocide and crimes against humanity in connection to the "Anfal" operation that led to the killings of as many as 100,000 Kurds in northern Iraq. Iraq President Jalal Talabani has called for Saddam to be tried on all charges before any verdict is enforced. Talabani has previously expressed opposition to the death penalty, saying last year that he would refuse to sign a death warrant for Saddam. (Jurist, Aug. 19)

Talabani's supposed reluctance to use the death penalty is a sign of hope, as a martyred Saddam could prove far more dangerous in death than in life. What is really ominous here—with grave implications for historical memory—is how the case against Saddam is being delegitimized. As John Laughland writes for the UK's fairly right-wing Daily Mail, Aug. 22:

The U.S. government pretends that the trial is being conducted by an independent tribunal in an independent state, but in fact the statute of the tribunal was promulgated in 2003 by the Coalition Provisional Authority — i.e., by the Americans themselves, long before Iraq regained its so-called 'sovereignty'.

Moreover, the court itself, and the Iraqi government which supposedly runs it, can only function because they are housed under American protection in the Green Zone in the middle of Baghdad.

Worse, the tribunal's statute reads like a Bill of Attainder written to prosecute Saddam. (Bills of Attainder are legislative acts which provide for the arrest of an individual person.)

According to the great English constitutional lawyer AV Dicey, the most basic principle of the rule of law is that a defendant can be tried only by ordinary courts and under the ordinary laws of the land.

This principle is clearly violated by setting up a self-styled 'special' court whose jurisdiction covers precisely and exclusively the period from July 17, 1968 to May 1, 2003 — when Saddam's Ba'ath party was in power in Iraq.

Far from allowing the Iraqis to run their own affairs, indeed, the Americans have carefully covered their own backsides in the trial. Article 14 of the tribunal's statute says that defendants may be prosecuted for 'the use of the armed forces of Iraq against an Arab country'.

This means that Saddam can be tried for invading Kuwait in 1990 — the invasion which led to the first Gulf War in 1991 — but not for his war with Iran, which lasted for ten years and which caused an estimated one million deaths. Iran is not an Arab country — it is Persian.

The reason for this restriction is that the Americans supported Iraq's attack against Iran in 1979 and supplied Saddam with weapons, including chemical and biological ones, to fight the mullahs.

Donald Rumsfeld, President Bush's Secretary of Defence, made two visits to Baghdad, in 1983 and 1984, as President Reagan's special envoy to the Middle East, where he was filmed shaking hands with Saddam. If the Americans had not stitched up Saddam's trial in advance, they would be in the dock themselves.

All this just loans comfort to those sectors of the idiot left who deny that the Anfal genocide ever happened—seizing on dubious claims that the Halabja poison gas attack of March 17, 1988, which left some 5,000 dead, was actually carried out by Iran. Meanwhile, Talabani's Patriotic Union of Kurdistan (PUK), which rules one half of Iraq's Kurdish autonomous zone, is facing a wave of popular unrest, with Kurdish survivors of the genocide reacting angrily to the corrupt PUK's cyncial exploitation of Halabja for propaganda purposes. The Bush administration, of course, is engaging in its own blatant revisionism of the facts of the massacre.

Even if the claims about Iran's culpability in Halabja turn out to be accurate, it is often forgotten that Halabja was but the biggest and most spectacular act of mass murder in the Anfal campaign. Testimony from Kurdish survivors in the trial have also recalled lesser-known incidents. Adiba Oula Bayez, a Kurdish woman, described the Aug. 16, 1987 attack on the village of Balisan, where Saddam's warplanes dropped bombs that spread smoke smelling of "rotten apples" which caused vomiting, burns and blindness. Helicopters bombed caves where villagers sought refuge from the bombings. Bayez, a mother of five, awoke in a military prison camp to find her children with "eyes swollen, their skin blackened."

Both Saddam and his cousin "Chemical" Ali Hassan al-Majid face genocide charges for the Anfal campaign. Genocide is difficult to prove as prosecutors must show intent to exterminate an ethnic group. Chief Judge Abdullah al-Amiri on Aug. 23 adjourned proceedings until Sept. 11, allowing time for the defense to file an appeal challenging the Iraqi High Tribunal's legitimacy. When the genocide trial opened on Aug. 21, in addition to refusing to enter a plea, Saddam questioned the legitimacy of the tribunal, calling it "the law of the occupation." (Jurist, Aug 23).

It will be a very sad turn of events if history winds up vindicating him. But it is important to recall that the legitimacy of the tribunal and Saddam's guilt or innocence are two very distinct questions.

See our last posts on Iraq, the Saddam trial and Kurdistan. Also note that by early accounts in the aftermath of the 2003 invasion, "Chemical" Ali is dead. This Aug. 21 Reuters account portrays him as very much alive—and as intransigent as his master Saddam in his defiance of the tribunal.

The Kurdistan Democratic Party (KDP), which rules the other half of the Kurdish zone, also makes propaganda use of the Halabja massacre, of course, although the city is not actually within their area of control. This page is not for the squeamish.