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WANT A NEW TRIAL? WHY NOT TRY ISLAMIC LAW, SADDAM

by Amir Taheri
The Times, London
July 3, 2004

"LAW, what law?" sneered Saddam Hussein in the small courthouse in the grounds of al-Faw palace. At his arraignment on Thursday, the fallen despot denounced as a farce the legal proceedings and dismissed the power of the court to try him.

Saddam looks as if he will emulate his fellow dictator, Slobodan Milosevic, by using every trick and procedure available in a Western-style trial to turn it into a political soap opera, dragged out over months and years.

Muhammad Rashdan, a Jordanian lawyer hired by Saddam's wife Sajjidah, argues that no Iraq court has the authority to try a man who "remains the legal President of the Iraqi Republic". "The invasion was illegal," he says, "which means that all of its consequences, including the formation of the interim Government and the court that it is setting up, are also illegal."

But if Saddam refuses to recognise the legitimacy of the Iraqi Government, maybe he should submit himself to a higher authority? In his last years Saddam, despite having spent a lifetime fighting religion as a relic of feudalism, recast himself as "the sword of Islam".

Legalistic foot-dragging and grandstanding would not be possible if Saddam were tried under Islamic law, as has been demanded by several leading Arab lawyers and Saddam's eldest daughter, Raghd. One major feature of Islamic law is its emphasis on speedy trials. This is because, in its purest form, the Islamic penal system does not include imprisonment as a form of punishment. A man charged with a crime should be tried and sentenced before the sunset of the day of his arrest.

There were no prisons in early Islam and, according to most historians, Muslims learnt to build and maintain prisons only when they came into contact with the Persians and the Byzantines. In Islamic literature imprisonment is a form of inflicting humiliation, itself a sin, rather than punishment. In the Koran, the word sijjin (prison) is a synonym for Hell. And no mortal has the right to decree in this world a punishment inflicted by God in the next.

There are three categories of crime in Islam: those committed against individual believers, those committed against society, and those committed against God. (God, of course, may intervene in all three as one of the aggrieved parties.) Now imagine Saddam appearing in front of an Islamic court. The first thing he would notice is that there is only one judge. This is because having more than one judge might lead to a clash of interpretations that could cast doubt on the solidity (hikmah) of divine rules. He would also notice that there is no jury.

Next he would notice that the charges against him are spelt out by the judge himself. The judge would then call in two male witnesses (or four female ones) to testify to each of the charges. Saddam would then be asked to respond to speak in his defence. He would not have the services of a lawyer since there are none in Islamic jurisprudence. But he could question the testimony of witnesses and call two witnesses of his own.

Once he was sentenced there would be no appeal. His fate would be in the hands of the Commander of the Faithful, the ruler who may bear the title of Caliph or Wali al-Amr (Custodian of Affairs) of the community. He could lessen Saddam's sentence or even pardon him. One thing he could not do is to keep him in prison.

What are the charges that Saddam might face in a hypothetical Islamic court? He could be charged with "betrayal of trust" (khianah fil amanah). This means he breached the trust of the people as ruler of the country. The charge would also cover the plundering of the public treasury (beit al-maal), seizure of property from Muslims, wasting public funds for ostentatious living. The punishment in such cases includes restoration of stolen property, payment of compensation and fines and flogging. But it could also mean death by beheading.

Saddam could also be charged with murder. There is evidence that Saddam shot Izzat Mostafa, who had been Health Minister under him. Then there is film footage of Saddam ordering his henchmen to take rival Baath leaders, among them Abdul-Khaliq al- Samarrai, out of a party congress and shoot them in the courtyard of the conference hall. In both cases, the Islamic punishment is death by beheading.

Saddam could face the more serious charge of "spreading corruption on earth" (ifsad fil-ardh). This is a broad category and covers a variety of crimes, including a reign of terror, depriving Muslims of freedom and dignity and fomenting discord. The wars that Saddam triggered against the Kurds in 1969, 1975 and 1991, the massacre of the people of Halabja with chemical weapons in 1988 and the crushing of the Shia revolt in 1991 could fall in this category. Again the punishment is death by beheading.

The gravest charge that Saddam could face in an Islamic court is that of "waging war on God" (muharibah an-Allah). The charge includes the cult of personality that Saddam built, thus setting himself up as a rival to God in seeking men's devotion, which is a form of sherk (idolatry). Saddam could also be accused of having fought against the will of God by triggering wars against Iran and Kuwait and leading his people into decades of suffering and sorrow. Once again the punishment is beheading.

The fallen despot could, of course, be tried and punished under the laws in force in Iraq during his own presidency. One charge could be "high treason" (khianat al-kubra) for going into hiding and abandoning his people, which is punishable by death.

Whether Western, Iraqi or Islamic, Saddam's trial cannot but produce one verdict: guilty.

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