Fuming over the sordid details of Saddam Hussein’s execution (the video, the taunting, the fact that it was carried out on a major Sunni holy day..etc), I wrote the following essay. I’de like to get it published somewhere, but I don’t have any ideas yet. 

And Sarah is right, we do try to avoid the Iraq War as a topic here, but I am the semi-designated human rights pundit of AID, and this is a human rights issue.

Here’s my essay:

Transitional Injustice

Saddam Hussein’s death has not brought peace or reconciliation to Iraq. It has not resurrected the three thousand American soldiers and estimated six hundred thousand Iraqis who’ve been killed in the war. Saddam’s execution did not close a dark chapter in Iraq’s history; no, with the sound of the former dictator’s neck snapping, caught by a witness’s camera phone and circulated over the internet, it merely added another perverse and barbaric footnote.

It is telling that the majority of governments, including those of our allies, reacted to Saddam’s execution not with gladness or even somber approval, but with outraged disgust. Italy’s leaders were so revolted that they are using Italy’s temporary seat on the UN Security Council to push for the worldwide abolition of capital punishment.
The tragedy of Saddam’s fate is that what could have been a trial to show the people of Iraq that they now live in a state of laws –where even the vilest can expect to receive a fair trial and the justice of a civilization that holds all human life sacrosanct– became exactly the opposite.

No one can honestly contest Saddam’s guilt in atrocities. His manifold crimes against the Kurds, Shia, and opposition political groups were well-known when he committed them. Guilt is not the point here, legitimacy is. The Iraqi court, for all its good intentions, lacked legitimacy to judge the former regime. From the beginning, the trial was attacked by Sunnis (the group that was favored under Saddam’s regime and finds itself politically marginalized in the new Iraq) as the revenge of the new Shia and Kurdish ruling class.

Everything that could have gone wrong during the trial did –and then some. Lawyers were murdered. Witnesses were intimidated. A judge resigned. Saddam and his codefendants failed to show up, and, when they did show up, they used the courtroom as their personal soapbox, humiliating the weak Iraqi government. Iraqis knew what the outcome of the trial would be before it even began. Regardless of the specific charges, Saddam would be found guilty, and executed for his crimes. Because this outcome was inevitable, Sunnis saw the whole spectacle as a sham. As it so happened, Saddam was put to death on a major Sunni holy day. His executioners were Shia. It should come as a surprise to no one that these facts have only increased the rage and bloodlust of the Sunni insurgency.

Saddam’s first trial was for the 1982 Dujail massacre, in which one hundred and fifty Shia villagers were killed. He was found guilty, and, for Dujail, he dropped from the gallows on December 30th. When his death sentence was delivered, Saddam’s lawyers appealed, unsuccessfully. This meant Saddam would be put to death within a month (and he was) and would never stand trial for the al-Anfal Campaign, arguably the worst and most notorious atrocity his regime ever committed. The al-Anfal Campaign resulted in the deaths of perhaps as many as one hundred thousand Iraqi Kurds between 1986 and 1989, including the five thousand civilians gassed to death in the Kurdish town of Halabja. Without Saddam and his codefendants alive, the highest-ranking officials from the former regime will never stand trial for Halabja, and the victims of the al-Anfal Campaign will never receive justice. And even worse, the truth about the crimes Saddam and his underlings ordered and carried out in secret will never be fully revealed.

It didn’t have to happen like this. Iraq was never the right venue for the trial. It was under occupation, and in the middle of a sectarian civil war. Under these circumstances, it was hard to even provide a functioning court to try Saddam and his codefendants, nevermind give them a trial that would be considered fair by both international standards and the people of Iraq. Instead, Saddam should have been tried in an international court.

The best option would have been the International Criminal Court, seated at The Hague. The ICC exists to try those accused of war crimes, crimes against humanity, and genocide. However, the United States opposes the ICC, and US support for an Iraq-based tribunal was driven more by this–and the fact that any international tribunal would be likely to reject the death penalty– than the idea that Saddam should be tried by his own people. Moreover, if the United States and the Iraqi government were not keen on the ICC, an independent international tribunal could have been set up in a third state, as has been done for Rwanda and the Former Yugoslavia.

With an international tribunal, Saddam Hussein could have joined the few former heads of state ever made to stand trial for the most serious crimes under international law. His trial could have shown Iraq, and the rest of the Arab world, that international criminal law is strong enough to hold leaders to account, and that justice can be served independent from politics.

There is no wisdom to holding major trials in the midst of violent anarchy. Sadly, this is a lesson both the United States and the government of Iraq were bent on learning the hard way. Iraq’s former dictator lies in the ground. He has no doubt taken many secrets to his grave. Questions about massive crimes will linger forever, sowing the seeds of suspicion, and, ultimately, making reconciliation, even in the distant future, that much more difficult. Justice demands, –above all else– not retribution, but truth. For Iraq, the possibility of both died with Saddam Hussein on the gallows.