I am guessing that I may not be the only person who is underwhelmed by the verdict against Saddam Hussein, which was timed to be announced just before the midterm elections in the United States.
Not to confuse the matter: he is undoubtedly guilty, not only of the crimes with which he was charged, but of a lot else as well. But the character of the process and the conditions under which it was carried out leave a lot to be desired. And the sentence of death by hanging calls up both bizarre images of ritual sadism and a despotic tradition of offing the people who occupied power previously – both images which do more to revive the character of Saddam Hussein’s rule than to point toward any sort of vision of a democratic or just future. This kind of a punishment is the act of an insecure regime.
One way of thinking about transitional justice is as a performance: a new regime demonstrates its capacity, in contrast with its predecessor, to apply the rule of law and settle the controversies surrounding its arrival to power in the process. By providing a fair trial, they embody the distinction between an old despotism which exercised summary justice and a new legal state which does not fear its opponents’ evidence and arguments. By providing a public trial, they create the opportunity for a forum on the legacy of the past in the process which Mark Osiel calls “making public memory, publicly.” To the degree that they (in the words of Nuremberg prosecutor Robert Jackson) “stay the hand of vengeance,” they demonstrate their commitment to be constrained by legal rules.
The Saddam Hussein trial failed on all these points. The charges were selective, standing in the way of producing a comprehensive account of the character and actions of the old regime (not all of which would have reflected well on the occupying power or the current paragovernment). The court and government manifestly failed to control the proceedings, maintaining neither the loyalty nor the security even of the officers of the court. The fear of what might come out in the course of the proceedings was such that the trial was broadcast – but with a twenty minute delay, to allow for the editing out of inconvenient moments.
As for the rule of law, there is no such thing in Iraq to be represented in a trial, a fact of which the occupying powers who are obligated by international law to maintain public services and public order are no doubt aware, regardless of what their representatives say to the press.
There are probably not many people in the world more deserving of severe punishment than Saddam Hussein. It is only in the context of a misbegotten fiasco like the occupation of Iraq that his conviction on charges of which he is guilty could be made to appear like another desperate and empty act of revenge.