JURIST Guest Columnist Lawrence Douglas, Professor of Law, Jurisprudence and Social Thought at Amherst College, says the trial of Saddam Hussein had little didactic value in Iraq for various reasons, but it could ironically have more impact in America on the eve of mid-term elections...
resident Bush hailed the verdict condemning Saddam Hussein to death by hanging "as a milestone in the Iraqi people's efforts to replace the rule of a tyrant with the rule of law." Others have been less sanguine in their reactions. Amnesty International promptly condemned the verdict, decrying the trial as "deeply flawed and unfair." Clearly the trial suffered from numerous and substantial flaws. Three members of the defense team representing Saddam and his co-defendants were assassinated. The tribunal was subjected to withering political pressure from the Iraqi government, resulting in the resignation of the first presiding judge and in the withdrawal of a possible replacement. The judge who finally took the reins of control, Raouf Rasheed Abdel-Rahman, frequently got into shouting matches with the defendants and openly favored the prosecution. Had the trial been removed to an international tribunal, as many human rights observers counseled, such defects would never have been tolerated.
All the same, the trial was not a complete sham. The prosecution was able to present strong evidence connecting Saddam to the killings in Dujail. The judges apparently struggled long to weigh the evidence brought against the various defendants (though their compendious written judgment has not yet been made public). The fact that one defendant was acquitted is a good sign. At the very least, the judges appeared to have learned the Nuremberg lesson that nothing legitimates the death sentence of an architect of atrocity better than the acquittal of a lackey. So if the Hussein trial failed to live up to the hopes of some that Iraqi jurists would quickly master the rules of the rule of law, it also disappointed the doomsday prognostications of others who foretold a legal catastrophe.
But in assessing the success of the trial, it won't do simply to focus on the quality of the justice dispensed. For the trial had other goals, and we need to ask whether these were accomplished. Chief among these was the didactic purpose of the trial. Like the Nuremberg, Eichmann, and Papon trials, the Hussein proceeding meant to clarify the historical record; it sought to give an accounting to an Iraqi and international audience of the crimes perpetrated by Saddam's regime. Here, however, the trial stumbled. In part, this was a result of the very focus of the trial. Eager to establish a manageable case, the prosecution focused on a relatively minor act the reprisal killings of 148 Shiites in Dujail in 1982. While this narrow focus might have made prosecutorial sense, the crimes themselves pale in comparison to the violence that grips the Iraqi nation on a daily basis. This fact alone creates a strong case for delaying Saddam's execution until the completion of his present trial for atrocities committed against Iraqi Kurds during the Anfal military campaign in the late 1980s. That trial at least promises to do fuller justice to the abominable crimes of Saddam's regime.
The didactic value of the trial was also upset by Saddam's showmanship. At no point in the proceeding did the exposure of horrific crimes subdue the former strongman or embarrass him into a moment of contrition. To the contrary. Stealing a page from the playbook of Slobodan Milosevic, whose death in March deprived the Hague Tribunal from ever passing judgment, Saddam demonstrated showed himself more than adept at disrupting proceedings. The photo that accompanied the New York Times
' headline, "Hussein Is Sentenced to Death by Hanging," spoke volumes: absent are the five members of the Tribunal that pronounced judgment; instead, monopolizing the page is an image of the ever-defiant former ruler, brow knitted in anger, shouting and waving an admonishing finger at the court. (A disembodied hand, presumably belonging to a guard, grabs at Saddam's wrist in a feeble attempt at restraint). CNN's coverage of the verdict likewise focused not on the Tribunal but on Saddam; indeed, in the cacophony of angry voices that accompanied the reading of the verdict, only the former dictator's prevailed. From the simultaneous interpreter, the viewer heard not the court's words of condemnation but Saddam's words of denunciation. It was as if the defendant sat in judgment on the Tribunal.
By upstaging the trial as a didactic exercise, Saddam also undermined its function as a tool of reconciliation. By conferring public recognition upon a suppressed history of victimization, and by providing an irrefutable accounting of wrongs, trials can establish a common history that serves the interests of reconciliation. But by interrupting the testimony of victims and haranguing the court with challenges to its legitimacy, Saddam only succeeded in further polarizing Iraqi society. This perhaps was unavoidable. After all, in a nation in which governmental officials cannot even agree to convene a national reconciliation conference, can we expect a trial to contribute greatly to this end?
Does this mean that the Hussein trial was a failure? It's worth remembering that in the decades directly following the Nuremberg trial, the majority of Germans viewed the trial with contempt, as an exercise in victor's justice. Now Nuremberg is generally viewed in Germany with respect as an event that prodded Germans to a collective reckoning with their troubled past. This is not to say that history will be equally kind to the Hussein trial. In the short term, it is hard to imagine the verdict contributing anything to the stability of Iraq. Ironically, its greatest affects are likely to be felt not in that worn-torn state, but in America, where it might shore up flagging support for Republican candidates. I say "ironically," because we are assured that the timing of the verdict, on the eve of the midterm elections, was entirely fortuitous. Lawrence Douglas is Professor of Law, Jurisprudence & Social Thought at Amherst College