Putting Saddam Hussein on trial is dangerous. He is a thug and a murderer but trying him now is likely to produce comparisons between his misdeeds and the behaviour of Iraq’s occupiers and their Iraqi deputy sheriffs. In front of a worldwide audience, Saddam will win, even if he is convicted.

The precedents of the Nuremburg trials and the articles of The Hague and Geneva conventions are applicable to Saddam. His accusers have ample evidence to try him for conspiracy to wage war, crimes against humanity and the use of unconventional weapons against innocent civilians – beyond the precedents in violation of the Geneva Convention. In an ordinary court, these crimes would translate into murder, torture, plunder and aiding and abetting criminals (his sons) in carrying out rape and theft.

But Saddam will not be tried by a local court, or an international one. Instead, we have a special court created by America and its allies. The legality of the arbitrary decree which empowers this court to try Saddam and his band of Ba’athist criminals by the victors of the Second Gulf War is subject to question. To begin with, how this court is supposed to conduct the business at hand is not clear. In fact, it can’t give a satisfactory answer as to the nature of its jurisdiction and when it is supposed to dispense justice. We have had several dates for trying Saddam and they appear to be the product of political considerations. Moreover, the court has been undermined by Iraq’s puppet government. Iraqi president Jallal Talabani has already announced that he would not sign any death sentence passed on Saddam by this court.

Unless we wait years, any court trying Saddam while the United States occupies Iraq, is suspect. At present any Iraqi court is not truly Iraqi because it has to follow what Washington dictates. It is a simple case of victors’ law. There is a presupposition that the victors are morally superior. Because the accused has been demonized, the outcome is predetermined. And even when we accept all these things, the proceedings themselves will confront us with hard choices we do not need. There is danger every step of the uncharted way.

Reducing the broad categories used in the trials of international dictators to the realities of the Iraqi situation, any court will have to deal with Saddam’s use of chemical weapons, treatment of the Kurds, waging war against Iran and Kuwait and denying the Iraqi people their rights. Examining this list item by item reveals the absurdity of the situation. Saddam’s accusers become his accomplices.

That Saddam used chemical weapons is undoubtedly true, but in 1922 Winston Churchill, then Colonial Secretary, approved the use of chemical weapons to subdue anti-British Iraqi rebels. Not only that, but he admonished members of the British parliament for “being squeamish regarding using such weapons against savages”. There is considerable evidence from 1991 and 2003 and it shows that America and its allies bombed civilian targets and used depleted uranium. Very much like Saddam, the United States paid little attention to the Geneva Convention. There is no moral high ground for the victors to occupy.

Saddam’s treatment of the Kurds will inevitably be compared with Turkey’s and Iran’s treatment of the Kurds. Turkey denies they exist and calls them Mountain Turks, and Iran, under both the Shah and Khomeini, has granted them less rights than Saddam did. In fact, the Kurdish problem began when Britain failed to fulfil its promises to create a country for them after the First World War. And both Britain and the U.S. have supported them selectively and ephemerally and on occasions – when convenient -- sided with Baghdad against them. More shamefully, in 1975 Saddam concluded an agreement with the Shah (underwritten by the US) which gave him a free hand to settle the Kurdish problem and he wasted no time and hundreds of thousands of Kurds died as a result.

Thirdly, Saddam is supposed to have waged war against his neighbours, Iran and Kuwait. In the case of Iran, Saddam not only conspired with Jordan and Saudi Arabia, two pro-American governments, to attack Iran, he personally met with CIA agents in Amman, briefed them of his plans and was encouraged to implement them. And it was America which guaranteed his victory by providing him with satellite pictures of Iranian military positions and later interfered directly and destroyed the Iranian navy a few days before the end of the Iran-Iraq War.

Regarding Kuwait, to most people Saddam’s aggression is utterly lacking in justification. But in 1990, both Assistant Secretary of State John Kelly and U.S. Ambassador to Baghdad April Glaspie told Saddam that the United States has “no position on inter-Arab disputes”. In other words, the United States was unlikely to oppose an Iraqi response to Kuwait provocation. Saddam thought he had a green light to invade Kuwait. Either this was a case of incompetence or Saddam was misled.

On trial, Saddam is in a position to prove that the West was his silent, cynical partner. In all cases, his testimony will at least embarrass the Americans and other Western countries. Moreover, in the all-important area of manufacturing unconventional weapons, his disclosures are likely to undermine the Bush and Blair governments’ case for waging war on Iraq. In the 1970s and 80s, while the USSR steadfastly refused to supply him with the technology to make unconventional weapons, the United States did. And Britain was not far behind.

In fact the one crime in which Saddam cannot implicate the West directly is the denial of human rights to his people. But alas, except for scale, what he did to the poor people of Iraq is what America’s Arab allies, despite the empty rhetoric about democratization, do to their people today. Even here, convicting Saddam is an indirect way of condemning the King of Saudi Arabia, the President of Egypt and other Arab leaders who deny their people their rights and depend on the Western support to stay in power.

If convicting Saddam represents a case of selective morality which is likely to backfire against his accusers, then absolving him would cancel all the reasons the coalition used to invade Iraq. Dead or alive, Saddam has already become a hero to Arabs and Muslims who oppose the West. Among modern Arab leaders he alone stood up to the West and opposed Western hegemony over the oil-rich Middle East. And his Iraq compares most favourably with the anarchy enveloping the country today. In 2005, with the invasion of Iraq already a failure, the divide between the West and the Arabs has become wider by the day. Sadly, the fact that the coalition has lost or at best is losing Iraq does not mean that the other side, the people of Iraq, have won.

With the Iraqi state supremely engaged and its future in doubt, the United States and its partners have a chance to assume a constructive role that would appeal to many Iraqis and Arabs. Using a discredited Saddam as a punching bag is meaningless but seeing to it that the new Iraqi constitution contains provisions to protect the future unity of the country is a step in the right direction. And an equally obvious constructive move would be to back the separateness of the state from religion, to reject Ayotallah Sistani’s position of superiority to the post-Saddam nation state. There is a great to do without reducing the mess in Iraq to a television series starring Saddam Hussein and his Tikriti band of butchers.

© Said K Aburish