Richard Falk on “The Flawed Execution of Saddam Hussein”

Richard Falk, who among many other things is Professor Emeritus of International Law and Practice at Princeton University, published the following essay in the Turkish daily, Zaman. As it's not online anywhere, he kindly allowed me to publish it here.

THE FLAWED EXECUTION OF SADDAM HUSSEIN (Dec. 31, 2006)

By Richard Falk

Given the harsh brutality of Saddam Hussein’s political career I would never have anticipated a certain measure of sympathy for the man at the end of his life. It was not only the unseemliness of executing a Muslim leader in the midst of the Hajj pilgrimages, but the perverse insensitivity of hanging Saddam Hussein on the eve of Eid al-Adha. As one Iraqi political analyst, Nazem Jassour, was quoted as saying, “[t]here was no good reason why the execution could not be delayed until after Eid..Its going to be perceived by Iraqi Sunnis as one more example of how the Shia government is trying to humiliate them.” But why would Shia leaders themselves not want to defer this vindictive moment until after this period of intense religious devotion by those of Islamic faith? It is true that Saddam Hussein was responsible for years of severe criminality against the Shia, possibly explaining the claim by some religious leaders in Najaf that the execution at this sacred time was ‘a gift of God.’

Another approach is to consider the American angle. Reme Allaf, a specialist on Iraq associated with the British expert body on international relations, Chatham House, noting that the Iraqi government lacks independence, explains the strangeness of legal approach as a result of the leadership’s need “to follow an American agenda.” This makes a bit more sense of the timing. After all the Iraq policy pursued by the Bush presidency is increasingly unpopular with the American people, enjoying real support from only about 20% of the public. Despite this stark political fact, reinforced by the escalating violence and rising body counts in Iraq, the Bush White House gives no sign of changing course on Iraq, even to the limited extent recommended recently by the bipartisan Baker-Hamilton Iraq Study Group, and mandated by the outcome of the American mid-term elections in November.

It is against this background that the timing of the execution can be best understood. Bush seems as determined as ever to carry on with the war, and even now seems inclined to increase the number of American troops on the ground in Iraq. At the same time he is facing a hostile American public opinion and a Congress now controlled by the Democratic Party that has everything to gain by opposing the president on Iraq. To cope with this likely firestorm of opposition, the execution of Saddam Hussein at the end of 2006, and no later, accomplishes two important goals: it allows Bush to claim as he has, that putting the former Iraqi leader to death is yet another ‘milestone’ on the road to Iraqi democracy, and that despite the appearances of failure, the Iraqi policy is actually succeeding. All that is required for ‘victory’ is more American troops and more American patience. Beyond this the execution at this moment distracts attention from an awkward statistic, that the number of American soldiers killed in Iraq has crossed the 3,000 threshold, which is truly a milestone that President Bush had best ignore as it is a signpost pointing directly to ‘defeat.’

I think when the full story of the trial, sentencing, and execution of Saddam Hussein is told it will have a simple story line, ‘made in the USA.’ At each stage of this flawed judicial process, it is the effort to use the criminal prosecution of Saddam Hussein in a futile attempt to rebuild American support for the Iraq policy that mainly explains the terrible distortions of the rule of law in the name of rendering justice. President Bush’s reaction to the execution, as reported from his ranch in Crawford, Texas where he was spending the Christmas holidays, is supremely ironic, accomplishing an exaggeration of Orwellian rhetoric. Bush praised Saddam’s execution as “..the kind of justice he denied victims of his brutal regime. Fair trials were unimaginable under Saddam Hussein’s tyrannical rule. It is a testament to the Iraqi people’s resolve to move forward after decades of oppression that, despite his terrible crimes, Saddam Hussein received a fair trial. This would not have been possible without the Iraqi people’s determination to create a society governed by the rule of law.”

This trial of Saddam Hussein could have been and should have been a positive experience for both Iraq and the world, but to reach such a result would have required independent and international auspices from start to finish. It would have required avoiding the imposition of the death penalty, a form of punishment not available under the statute of the International Criminal Court, and increasingly abandoned by democratic countries. And it would certainly have required avoiding the unseemly spectacle of death by hanging, projecting an ugly imagery around the world that will satisfy some unhealthy appetites for vengeance, but will also ensure that this terrible political figure will be revered as a martyr by many Muslims around the world. As Robert Fisk expressed it, “Saddam died a ‘martyr’ to the will of the new ‘Crusaders.”

But more significantly, the trial and punishment should certainly have addressed the full panoply of Saddam Hussein’s crimes rather than concentrating on a single incident back in 1982 when 148 Iraqis were killed in the town of Dujail as a collective punishment in response to a failed coup attempt against the Baghdad regime. Not considered were Saddam Hussein’s more serious crimes associated with the infamous Anfal campaign in the late 1980s when as many as 180,000 Kurds were killed in northern Iraq, many by chemical weapons, the genocidal policies directed at the ‘marsh Arabs’ of the South after the First Gulf War of 1991, the aggressive war waged against Iran in the 1980s that took over a million lives on both sides, and the widespread torture and killing of political opponents during the course of his entire reign. It is likely that the adjourned separate trial on the allegations concerning the Kurds will be continued, but without the presence of Saddam Hussein as the principal defendant, it will be Hamlet without the Prince of Denmark! As the Nuremberg trial of surviving German leaders after World War II made clear, the main achievement of such criminal prosecutions is not punishment of the now disempowered leaders, but political education by way of compiling evidence of the terrible wrongdoing of those accused and showing that the contrasting way of the victors is one of fairness and due process.

Again, we need to ask why was this truncated and dysfunctional approach used, leading to the execution of the main culprit before the worst crimes of his regime were even considered. The only credible explanation is that such an approach conformed to the needs of the occupying power. A fuller exposure of Saddam Hussein’s crimes would have awkwardly exposed American complicity. Iraq was a strategic ally of the United States in the 1980s, the decade in which the worst excesses of Baathist rule took place, including the persecution and execution of religious leaders. It was the United States that encouraged the attack upon Ayatollah Khomeini’s Iran in 1980. It was the United States that supplied many of the components of the chemical weapons used against the Kurds, and then relied on its diplomatic influence to shield Baghdad from censure in the aftermath of these shocking events. And later it was the United States in 1991 that authorized the bloody crackdown of the Kurds in the North and the marsh Arabs in the South. These background realities show clearly that it was not politically possible to have a proper trial of Saddam Hussein at this time under these auspices, but it was also not politically acceptable to create the sort of auspices that would have exposed the full range of Saddam Hussein’s criminality. And so the reliance on the Dujail incident was a clever solution, concentrating exclusively on an incident involving purely internal Iraqi facts, which would provide the legal basis for executing Saddam Hussein, and forever avoid a formal rendering in a court of law of the awkward parts of this dictator’s story.

Even aside from these considerations, it was never appropriate to rush the process. To move from prosecution to execution so quickly in a major political trial of this sort is unprecedented. To organize such a trial process while the country is enmeshed in civil strife and a war of resistance is further delegitimizing. And if this is not enough, Saddam Hussein was removed from power and captured by an invading power that was guilty of waging a war in flagrant violation of the United Nations Charter, as well as in opposition to world public opinion.

Rather than provide a milestone for the rule of law and Iraqi democracy, the trial and execution of Saddam Hussein raises high the banner of vindictive justice that obscures the very criminality that is supposedly being punished. It shifts anger from the accused to the accuser, and incredibly cedes the high moral ground to the criminal voice of Saddam Hussein. His farewell remarks calling for a renunciation of hate on the part of Iraqis toward one another, and even toward the invader, however self-serving his motives, express an admirable moral sentiment. A remarkable feature of this entire legal drama is to point the compass of moral accountability away from Saddam Hussein, at least for now.