Saddam to be hanged

2006-11-06

in Bombs and rockets, Law, Politics

Ceiling of the Merton College Chapel, Oxford

Reading the news that Saddam Hussein, former president of Iraq, has been sentenced to die by hanging created a ambivalent combination of feelings. On the one hand, he is certainly guilty: if not of the particular atrocity for which he was tried than for crimes against humanity in general. Likewise, launching the Iran-Iraq War probably constituted ‘conspiracy to wage aggressive war’ – the crime for which the subjects tried at Nuremberg were hanged.

Problems with the trial

That said, there are procedural issues that draw the result into question. One major legal problem is the genesis of the Supreme Iraqi Criminal Tribunal (formerly known as the Iraqi Special Tribunal). This body, where Saddam Hussein is on trial, was not established by an elected Iraqi government, but by the Coalition Provisional Authority: a bureaucracy composed of and supported by the occupying army. To say that this is domestic Iraqi justice is therefore somewhat disingenuous.

Other serious problems have been the lack of security for those involved in the trial: including witnesses, judges, and lawyers. By the end of the trial, Saddam Hussein only had one legal representative left: Khalil al-Dulaimi (largely because others were dismissed, though three were killed). The absence of a stable security situation in Iraq, and Baghdad in particular, further reduces the changes of a free and fair trial being conducted, at an internationally certifiable level of due process.

A further problem is the absence of an adequate process of appeal. There is only a ten-day window in which an appeal can be launched, and it is widely expected to end in failure within weeks. Related is the issue that it is over-hasty to execute Saddam Hussein on the basis of one set of allegations, relating to 148 killings in Dujail in 1982, when so many more charges remain to be considered. The importance of being systematic and fair lies in generating an accurate accounting of the various crimes committed by Saddam Hussein and his regime. If the stated objective of the coalition in “drawing a line” under the Saddam era is genuine, such a comprehensive accounting seems like an important step.

Problems with the death sentence, generally

In general, the international community has condemned the sentence of death. The European Union has spoken against it. As have India, Ireland, The Netherlands, and New Zealand. Even Tony Blair said that he is opposed.

Personally, I don’t feel that execution is an option that should be available to any court. As a form of justice, it is little more than crude retribution. While the danger of convicting innocent people does not apply in this case, the general moral and pragmatic position against the death penalty seems very strong to me.

That said, imposing what has become the international consensus upon the Iraqi court carries problems of its own. To grant the new Iraqi governments powers and then circumscribe their usage does not conform to the project upon which the coalition has supposedly embarked. While it is clearly legitimate for outside actors to urge a reconsideration of the death sentence, it would probably be illegitimate to force the hand of the court in any significant way.

Primarily because of the flawed trial process, the insufficient appeal system, and the importance of rigorously cataloging the misdeeds of the former regime, Saddam Hussein should not be put to death.

All that said, I encourage someone to argue the opposite.

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{ 9 comments… read them below or add one }

Tristan Laing November 6, 2006 at 10:01 pm

To me, the largest problem with the trial is that it condemns Saddam for a crime that was already tacetly approved by the American state – the US supported Saddam later than 1982, is that not correct? Is it really tenable that they simply did not know? Or rather that they did not care. I realize that technically Saddam is being tried by an Iraq court and not a US court, but certainly it is an Iraq court heavily dependant on a rule of law maintained by US troops.

Also, if “conspiracy to wage agressive war” is a war crime, then it seems that many figures in the pantheon of American heroes are war criminals. I don’t see how the war in Iraq, now that we know that the justification for it was faked, was not the result of a “conspiracy to wage agressive war”?

I suppose my question is – to what extent is hypocricy a fault, or even a problem, for law and the appearence of law? To quote the swindling mayor in Gangs of New York: “Use the police for muscle work? Absolutely not! The appearence of the law must be upheld – especially while it’s being broken!”

Brett Banks November 6, 2006 at 11:30 pm

I agree Milan but what also worries me is that this seems all so orchestrated(time wise etc..) by the US. This will take any legitimacy out of the ruling(what little of it there was), especially within the middle east. It was most likely timed for the elections but I dont really see this having much of an effect on the results(maybe a very slight one on the undecided voters)

Anon @ Wadh November 7, 2006 at 6:30 pm

If anyone deserves to be hanged, it’s Saddam. I just worry about the effect it will have in Iraq.

Tristan Laing November 9, 2006 at 10:46 am

To Anon @ Wadh

There is no denying your claims, but the law and its meaning has many mistresses to awnser to higher than desert.

Milan November 20, 2006 at 1:30 am
Milan December 26, 2006 at 3:12 pm

Death sentence for Saddam upheld

An Iraqi appeals court has upheld the death sentence against ousted President Saddam Hussein, Iraq’s national security adviser has said.

Milan December 28, 2006 at 3:32 pm

Waiting for the hangman

Dec 27th 2006
From Economist.com
Executing Saddam Hussein is a bad idea

“Yet executing him would be a mistake. Not only is capital punishment wrong in itself, however wicked the guilty party, it is most unlikely to help bind Iraq’s wounds. His trial was flawed enough to provoke condemnation from Western human rights groups, among others, and to seed suspicion in some parts that the former tyrant’s execution is less a matter of justice and more a case of revenge. Showing greater respect for human life than he ever did would represent a rare moral victory for Iraq’s rulers. Keeping Mr Hussein alive would also allow other trials detailing far greater evils than Dujail to be completed—such as the one, already begun, in which he stands accused of instigating the so-called Anfal campaign against Iraq’s Kurds, in which more than 100,000 people may have been killed and millions uprooted.”

Milan December 29, 2006 at 9:29 pm

WIDER IMPLICATIONS OF SADDAM’S DEATH SENTENCE: That Saddam has been tried for past atrocities is in most respects a positive development for Iraq. The use of capital punishment, however, might be symbolic of a systemic flaw in the US approach to the occupation since the fall of Baghdad.

With self-serving mea culpas abound, and more and more people taking a stern realist tack from desired to possible outcomes, core principles that have led to the current humanitarian disaster deserve to be challenged.

. July 2, 2010 at 4:11 pm

“A young man without power or money is completely free. He has nothing, but he also has everything. He can travel, he can drift. He can make new acquaintances every day, and try to soak up the infinite variety of life. He can seduce and be seduced, start an enterprise and abandon it, join an army or flee a nation, fight to preserve an existing system or plot a revolution. He can reinvent himself daily, according to the discoveries he makes about the world and himself. But if he prospers through the choices he makes, if he acquires a wife, children, wealth, land, and power, his options gradually and inevitably diminish. Responsibility and commitment limit his moves. One might think that the most powerful man has the most choices, but in reality he has the fewest. Too much depends on his every move. The tyrant’s choices are the narrowest of all.

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