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The flawed trial of Saddam Hussein

Sadakat Kadri

The trial of the Iraqi dictator, promising justice while presuming guilt, is a parody of Nuremberg and legally irredeemable.

— Photo: AP

IN THE DOCK: Saddam Hussein argues during his trial. — Photo: AP

IN THE months after Saddam Hussein's capture, one pledge rang out. George W. Bush declared that Saddam would receive the justice he had "denied ... to the people of Iraq." Paul Bremer foresaw "the kind of justice he denied his own people." Dick Cheney guaranteed "the justice he denied to millions." Similar words from different politicians are not necessarily false. But a statement promising justice while presuming guilt is worth scrutinising — and the closer one looks, the more dubious it seems.

The most ardent apologist for the Iraqi special tribunal would admit that it has teething troubles. To characterise its dismissals, resignations and assassinations as such is, however, to underestimate the problem. The courtroom drama is less farce than tragicomedy; and history offers countless reminders of what Iraqis might expect for a denouement.

Every regime change in Iraq since the overthrow of the monarchy in 1958 has been accompanied by a judicial extravaganza. The Ba'athist coup was marked by mass arrests of supposed Zionists, their halting confessions broadcast nationwide in 1968 while their bodies swung from gibbets in Baghdad's Liberation Square. Mr. Hussein's presidency was inaugurated 11 years later by the discovery of a new nest of traitors, with well-publicised remorse and firing squads all round.

The coerced admissions and grisly executions of yesteryear do not of course compare directly to Mr. Hussein's trial, but they signal a crucial weakness. And though justice was always a stated goal of the coalition of the willing, no senior lawyer in the said coalition ever considered adequately whose justice was being pursued. An invocation of the comeuppance inflicted on the Nazis at Nuremberg was about as advanced as the thinking ever got.

Every trial reiterates the moral precepts of the community staging it. While traditions of dictatorship resonate among Iraqis, the U.S. and its proxies have to insist on such things as due process — if only to satisfy the folks back home. The result is a chasm between Iraqi and Western expectations. The judges have oscillated between indulgent and threatening, while the chief prosecutor, Ja'afar al-Moussawi, announced in February that Mr. Hussein might never be tried for his most serious crimes, and could expect to hang very soon. He was only reiterating what politicians had been saying for months.

It all makes for a legally irredeemable situation. Mr. Hussein is certainly exploiting the uncertainties — but theories that recognise his right to do so cannot be reconciled with a reality that is knotting his noose. Even the desperate suggestion that the trial be exported to The Hague is no solution, for that ignores why Iraq is hosting it in the first place. Its primary purpose is not to find facts or hear from victims, South African truth commission-style, but to punish guilt — and catharsis demands that audience expectations be satisfied.

The most significant legacy of 1945 is not the platitude that Mr. Hussein will get the justice he denied his people. It is a warning uttered by Robert Jackson, the U.S. chief prosecutor at Nuremberg: "If you are determined to execute a man in any case, there is no occasion for a trial. The world yields no respect to courts that are merely organised to convict." Events in the Green Zone have, it seems, become precisely what Jackson reviled: a ritual aimed at prosecuting Mr. Hussein very publicly to death. Jackson's words are relevant for another reason. The insistence that trials disallow preordained verdicts has a flip side: those who flout legality may seek other solutions. And in Iraq there has only ever been one honest answer to the Saddam problem. It does not involve the special tribunal.

Churchill opposed the prosecution of senior Nazis, arguing that they should be shot on capture. It was Stalin, always up for a show trial, who demanded a judicial pageant. History has vindicated the Soviet despot (which should in itself give pause to Nuremberg analogies), but legalism worked in 1945-46 only because it was imposed over the heads of a vanquished population.

Iraq, however, is supposedly a sovereign ally. Its citizens are theoretically the beneficiaries of justice, not its targets. It is also a place convulsed by suicide bombers, decapitators and death squads, where hundreds of thousands have regularly demonstrated for Mr. Hussein's execution. The preconditions for a new Nuremberg — tranquillity, stable conceptions of justice, and clarity of governing purpose — are lacking.

To laud Mr. Hussein's trial as a humanitarian milestone is a politician's lie. Iraq's invaders opened up an inferno, including notions of justice as foreseeable as they are loathsome. The hanging to come will signify nothing but sleight of hand. A more fitting tribute to the tragedy unleashed by Operation Iraqi Freedom would be Mr. Hussein's head, shot through the temple and stuck on a pole, with nary a human rights lawyer in sight. But that is just a legal opinion.

- Guardian Newspapers Limited 2006

Sadakat Kadri is a lawyer and author of The Trial: A History from Socrates to OJ Simpson [HarperCollins].)

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