On October 18, the Free Muslims Coalition (FMC), an organization headquartered in Washington, DC, issued a commentary accessible here. The statement asked that Saddam Hussein not be executed if, as nobody doubts, he is found guilty at trial.
As a board member of FMC, my first reaction after seeing the article was to ask the author, FMC president and founder Kamal Nawash, "How could you?" And so, before pronouncing any judgment, I sent an email to the organization, questioning whether all of its members agreed that Saddam should, if found guilty, be spared the death penalty.
Mr. Nawash telephoned me and made the following case: most Arab governments are not sophisticated enough to work impartially, and the trial of Saddam should be an example of what the judicial process should be in Arab/Islamic countries. To a degree, I understand Mr. Nawash's argument.
But there are also things I do not accept.
I do not accept the contention that Arab governments are not sophisticated enough to work impartially.
I do not accept that if Saddam is found guilty, he should not be sentenced to death. Far from setting a good example, such a decision would send a disastrously wrong message, and would feed, once more, conspiracy theories. We would hear that the Americans used their influence to save Saddam, for murky or obscure reasons, and that the trial was a sham.
As in Western law, the premise of Islamic law has always held that the prosecution has to prove its case: "al bayan 'ala al-mudd'ai" -- the burden of proof is on the accuser. For this reason, I do not believe that the legal systems of the Arab-Muslim countries lack the sophistication to apply capital punishment.
This is not to say that they have not abused it. But with all of their misconduct, they still do not lack the services of the best law schools and lawyers the region can produce. That Arab governments and dictators have used the courts and coerced judges to settle their personal vendettas is no secret; and many judges and lawyers in the Middle East have complained about such dictatorial impositions, as a hindrance to the spirit and letter of the law -- but not about the legal system itself.
Let us face a simple fact: different areas have different norms. In Iraq, as in the rest of the Muslim Middle East, a verdict of guilty on the charges of which Saddam is accused would bring an automatic death sentence. This contrasts with the situation at the International Criminal Tribunal for Former Yugoslavia (ICTY), where accused Serbian mass murderer Slobodan Milosevic and similar individuals are on trial. ICTY has its seat at The Hague, and the Netherlands will not carry out death sentences.
Let us face another fact: there is no lack of evidence against Saddam. It is doubtful the prosecution will need to produce any material that can be reliably challenged.
And let us face yet one more fact: Saddam, as he appeared the last time we saw him on 60 Minutes, has morphed into a devout Muslim, even interrupting an interview to complete prayer. Surely, as a sign of respect (albeit undeserved), we can allow that he be given a trial according to Islamic standards!
Why should Saddam not accept this, since he has challenged the authority of the present court? We can even go further and call for a tribunal consisting of Sunni and Shi'ite jurists.
Certainly defense lawyers must be allowed to question the evidence. But even though the criteria for testimony and evidence in Islam are far more demanding than in Western law, and unless we are living on some other planet, the evidence against him is overwhelming. If he is found guilty, the court may follow the Qur'anic law -- which, as any Muslim scholar, Shi'ite or Sunni, will confirm, calls for capital punishment.
The Iraqi people have suffered long enough under Saddam -- and their voice must be heard in dealing with their own. If any one body of Shi'ite or Sunni jurists disagrees with me, I will bow to their judgment. But I will not say that I am wrong.
Imam Khaleel Mohammed is a founder of the Center for Islamic Pluralism at www.islamicpluralism.org.