Judging Saddam Hussein
From The Economist print edition
Justice may have been done, but it is a mistake to hang him
AS WITH every aspect of the war in Iraq, the world's reaction to the death penalty handed down last weekend on Saddam Hussein has been utterly polarised. One view holds that this was “victors' justice” imposed by an illegitimate tribunal after a show trial. Another holds that it was an uplifting example of a mass murderer being held to account. George Bush called it a landmark in Iraq's transition to democracy. Sadly for those who prefer blacks and whites, the truth in this case hovers somewhere between the two extremes. Although the trial had serious defects, it was not a show trial—at least not in the sense its critics say it was. But nor is it likely to help Iraq bind its wounds (see article).
Finding the right way to put dictators and war criminals on trial is never easy. In one sense, these are always show trials—and rightly so. The aim is not only to make an individual pay for his crimes but also to demonstrate something bigger. America hoped that the Nuremberg trials would demonstrate the abhorrence in which the world held the Nazi system, and bring home to the German people America's determination to extirpate that system forever. When Slobodan Milosevic was put on trial for war crimes at a special tribunal at The Hague, one motive was to show that heads of state could not shelter behind claims of impunity. The purpose of the special tribunal investigating the Rwanda genocide is not only to bring the guilty to justice but also to bring reconciliation to a society that was split asunder.
In the case of Mr Hussein it would have been a mistake to follow the Nuremberg model: putting the occupiers in charge would simply have made more Iraqis feel that they had been conquered by foreigners, not liberated from a tyranny. The International Criminal Court established in The Hague in July 2002 was not an option, since it cannot try crimes committed before its inception. There was, besides, a good argument for holding the trial inside Iraq itself, where the crimes took place and where victims and their relatives could more easily follow its progress in a language they understood. But did Iraqi judges have the experience to deliver a fair and impartial process? Doubting that they would, this newspaper advocated a hybrid tribunal, like the one set up in Sierra Leone, that would include foreign judges and operate under international law.
The Americans decided otherwise. The Iraqi Special Tribunal had only Iraqi judges, though they had access to international advisers and the court's rules were modelled on those used in UN tribunals. Its performance has been mixed. Defence lawyers have been killed, and one judge resigned complaining of political pressure. But in spite of this, and in between the harangues, walkouts and moments of farce, a careful legal case, including documentary evidence and the testimony of witnesses, has laid out Mr Hussein's responsibility for the torture and murder of 148 people from the town of Dujail more than two decades ago. In short, it has been neither a perfect trial nor a show trial of the sort in which charges are trumped up, evidence fabricated, the verdict pre-ordained or the defendant denied a chance to answer his accusers.
Many legal and human-rights lobbyists in the West say that the imperfections of the Dujail trial have been so serious that the verdict should be set aside and Mr Hussein should be tried again in an independent international tribunal whose proceedings would be beyond reproach. This newspaper thinks the verdict should stand, but the punishment should not. That is chiefly because capital punishment is wrong in itself, even for monsters like Mr Hussein. Showing greater respect for human life than he ever did would have represented a rare moral victory for Iraq's occupiers. 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.
Several European governments have also argued against hanging Mr Hussein. Given the violent realities of Iraq, however, outsiders are deluding themselves if they expect scruples such as these to have much impact in Baghdad. Nor would a retrial in a more perfect tribunal do much to alter the way most Iraqis see this business. Most Shias and many Kurds seem to welcome the verdict: they do not care a jot about the technical defects of the trial. As for the Sunnis who were loyal to the previous regime, it is the legitimacy of the present government, not the probity of the court, that is fundamentally in question. When a country in a civil war tries a man who is regarded by one side as a symbol of its cause this will not bring reconciliation, even if it meets the demands of justice.