Still, the trial could prove a watershed event, revolving around the manner in which Hussein is tried. It is clear that reforming Iraq's legal system is of paramount importance to the reconstruction of the country. The Iraqi Jurists Association, an international organization of Iraqi lawyers and legal experts, gave the United Nations a 700-page document in May 2003 outlining how to reform the legal system based on respect for rule of law in post-Hussein Iraq. Even a year ago--that is, well before the U.S. invasion--Iraqi and American legal experts knew that the manner in which Hussein and others would be tried would be crucial to reshaping Iraq's political system and larger culture.
And so it's no surprise that it was announced this week that Hussein and other senior Baath leaders will be tried by a five-member tribunal of Iraqi judges, with a nine-member appeals tribunal that would review any verdict and sentence. As a spokesman for Human Rights Watch put it, "This is such an extraordinary opportunity to try one of the world's most notorious human rights violators that it's important it be done in a way that is perceived around the world as wholly proper."
While most commentators have suggested that internationalizing the trial in some manner would ensure its fairness, it is clear that "internationalizing" for most means bringing in European or American experts or those trained specifically in Western law. The former UN War Crimes Chief Prosecutor and South African Supreme Court Justice Richard Goldstone, for instance, has called for a "kind of hybrid court that has been set up in Sierra Leone and Cambodia--a mix of local and international judges and prosecutors, including guarantees for the safety of defense attorneys."
Yet it seems that religious jurists, legal scholars, and judges are not being considered valid participants in such a process. This would be very problematic, because limiting the definition of "international" to predominantly "secular" Western concepts and norms is condescending toward both the Muslim world and Islamic law. After all, Islam has a sophisticated set of legal traditions in the Shari'a that are well over 1,000 years old and which encompass the full spectrum of criminal and civil laws. Whether it's murder, theft, or utterly failing to "enjoin the good and prohibit the evil" (as every Muslim, and especially a political leader, is commanded by God to do), Hussein clearly can face justice from a Muslim perspective.
One could object, of course, that the various "schools" (really, systems of interpretation) of Muslim law sometimes contradict each other in important ways, especially between Sunni and Shii systems--a crucial distinction in Iraq--and so it would be impractical to try Hussein through one of these systems, since his crimes have affected members of both sects.
More broadly, according to a September report in the The Financial Times, "On the role of Islam, most parties have agreed to allow the constitution to name it as the official religion of Iraq, but disagreement begins on the role of Shari'a Islamic law. Religious parties have called for it to be declared 'the only source' of law in Iraq, while more secular parties have said they would be content with Sharia rule as 'one of the sources' of law but nothing further."
But this process had the unfortunate consequence of isolating much of Islamic legal theory to a focus on preserving something called "essential Muslim identity," which generally meant preserving patriarchal systems of oppression. And in religiously ruled states, it has usually meant the imposition of harsh penalties such as amputation of limbs or stoning to death of adulterers. These kinds of laws have been as much about sustaining men's power over women and publicly identifying with highly charged symbols of Islam in the context of a perceived hostile international environment as they are about developing a contemporary Islamic legal culture.
In fact, in the past several decades there has been a growing body of Islamic legal thinking that has sought specifically to develop Muslim law through interaction with Western legal tradition. The best-known example of this trend is Islamic banking law, revolving around issues of how to avoid (and for more radical thinkers, sanction) paying interest and still be competitive in a modern capitalist world economy. But the developments have also touched a much larger body of law, including constitutional, international, and criminal law.
In a recent book, The Concept of Islamic International Criminal Law: A Comparative Study, the author, Farhad Malekian, argues that a complex body of Islamic international criminal law has emerged with its own set of "Islamic international crimes." He demonstrates that in light of the growing development of international jurisprudence, we can see conflicts and apparent differences between the Islamic and Western systems as more ideological, political or procedural than based on essential principles.
Today, Islamic law has devoted attention to issues such as aggression against other countries, war crimes, the use of poisonous weapons, crimes against humanity, discrimination, torture, humanitarian law, and international criminal responsibility. These issues are particularly relevant to human rights law, where there have been productive interactions between Muslim and Western legal theorists.
Given the advances in Islamic legal thinking, appointing one or two religious jurists to the tribunal could demonstrate that the crimes Hussein is accused of--which in many respects resemble those of Osama bin Laden--are as contrary to Islamic as to Western law. This would certainly be an important recognition for Muslims around the world.
Moreover, having one or two Muslim jurists as part of Hussein's trial could go a long way to ensuring that Arabs and Muslims around the world believe Hussein's trial did not represent "victor's justice." At the same time it would establish a vital precedent for common ground and compromise between religious and secular approaches to governing post-Hussein Iraq. This, in turn, would strengthen the trend in Islamist (that is, religiously grounded) thinking toward a "secularization" of Islam.
But here I don't mean secularism in a Western sense, where Islam would be confined "to the private sphere," as the French Government is trying to enforce with new laws about the wearing of headscarves in public schools. Rather, it means that Islamist activism and politics are gradually evolving away from the goal of achieving (in some versions, seizing) and administering state power. The experience of the Islamic Republic of Iran, Sudan, and Saudi Arabia, and the political and moral costs of using violence to achieve power, have demonstrated that is not the best way of shaping a truly Islamic society.
Such thinking is exactly the kind of change that would be crucial to building a culture of democracy, civility and tolerance throughout the Middle East and the larger Muslim world. And this process would effect a larger change in the political culture that President Bush says the United States wants, but which will be very hard to achieve given how many decades U.S. interests in the region have been tied to supporting undemocratic and oppressive regimes, and how strong these interests--especially oil and defense companies--remain today in Washington. Yet even opponents of the U.S. invasion of Iraq would celebrate such a transformation. Hussein's trial could play an important role in bringing this about. But not if Islam is left on the sidelines.