The Flawed Execution of Saddam Hussein
by Richard Falk, January 2, 2007
Given the harsh brutality of Saddam Hussein’s political career I would never have anticipated a certain measure of sympathy for the man at the end of his life. It was not only the unseemliness of executing a Muslim leader in the midst of the Hajj pilgrimages, but the perverse insensitivity of hanging Saddam Hussein at the start of Eid al-Adha for those of Sunni persuasion. The Eid holiday, the holiest of Islamic sacred observances, is supposed to be a solemn moment of sacrifice and forgiveness, as well as the end of the annual Muslim pilgrimage (hajj) at Mecca. The toxic sectarian element was injected by the fact that for Sunni Eid began at dawn on the morning that Saddam Hussein was executed, while for Shiia the four-day holiday does not begin until the following day. It was on this basis that the Iraqi leadership in Baghdad secured the approval of the Shiite clerics in Najaf to go ahead with the execution, after which the Prime Minister, Nuri al-Maliki, signed the final execution order only six hours before the hanging took place.
A respected Iraqi political analyst, Nazem Jassour, was quoted as saying, “[t]here was no good reason why the execution could not be delayed until after Eid..Its going to be perceived by Iraqi Sunnis as one more example of how the Shia government is trying to humiliate them.” There may not have been good reasons for such unseemly haste, but several bad reasons seemed powerfully present. First, was the thinly disguised thirst for vengeance. Secondly, seems to have been an effort to demonstrate that the Shiia were now firmly in control of the Iraq governement. And thirdly, was the totally inappropriate, raucous, and disturbing display of tasteless allegiance to Muqtada’s al-Sadr in the execution chamber. It was Muqtada’s militia, the Mahdi Army, which is widely believed to control death squads responsible for killing many Sunni civilians in Baghdad and elsewhere in the country.
But why would Shiite religious leaders themselves not want to defer this vindictive moment until after this period of intense religious devotion by all those of Islamic faith? It is true that Saddam Hussein was responsible for years of severe criminality against the Shia, undoubtedly explaining why some religious leaders in Najaf viewed the execution at this sacred time as ‘a gift of God.’
Another approach is to consider the American angle. Reme Allaf, a specialist on Iraq associated with the British expert body on international relations, Chatham House, noting that the Iraqi government lacks independence, explains the strangeness of legal approach as a result of the leadership’s need “to follow an American agenda.” This makes a bit more sense of the overall timing of the trial and conviction, although not the execution. After all the Iraq policy pursued by the Bush presidency is increasingly unpopular with the American people, enjoying real support from only about 20% of the public. Despite this stark political fact, reinforced by the escalating violence and rising body counts in Iraq, the Bush White House gives no sign of changing course on Iraq, even to the limited extent recommended recently by the bipartisan Baker-Hamilton Iraq Study Group, and mandated by the outcome of the American mid-term elections in November.
It is against this background that the general timing of the execution can be best understood, although not the specific rush to the gallows. Bush seems as determined as ever to carry on with the war, and even at this point seems inclined to increase the number of American troops on the ground in Iraq. At the same time he is facing a hostile American public opinion and a Congress now controlled by the Democratic Party that has everything to gain by opposing the president on Iraq. To cope with this likely firestorm of opposition, the execution of Saddam Hussein at the end of 2006, and no later, accomplishes two important goals: it allows Bush to claim as he has, that putting the former Iraqi leader to death is yet another ‘milestone’ on the road to Iraqi democracy, and that despite the appearances of failure, the Iraqi policy of the White House is actually succeeding. All that is required for ‘victory’ is more American troops and more American patience. It is probably true that the execution at this moment distracts some attention away from the awkward statistic that the number of American soldiers killed in Iraq has crossed the 3,000 threshold, which is truly a milestone that President Bush had best ignore as it is a signpost pointing directly to ‘defeat.’
I think when the full story of the trial, sentencing, and execution of Saddam Hussein is told it will have a simple story line, ‘made in the USA.’ At each stage of this flawed judicial process until the very end, it was the effort to use the criminal prosecution of Saddam Hussein in a futile attempt to rebuild American support for the Iraq policy that mainly explains the terrible distortions of the rule of law in the name of rendering justice. President Bush’s reaction to the execution, as reported from his ranch in Crawford, Texas where he was spending the Christmas holidays, is supremely ironic, actually a caricature of Orwellian rhetoric. Bush praised Saddam’s execution as “..the kind of justice he denied victims of his brutal regime. Fair trials were unimaginable under Saddam Hussein’s tyrannical rule. It is a testament to the Iraqi people’s resolve to move forward after decades of oppression that, despite his terrible crimes, Saddam Hussein received a fair trial. This would not have been possible without the Iraqi people’s determination to create a society governed by the rule of law.”
The American role in orchestrating the trial process did not extend to the final phase. American military commanders and diplomats reportedly anticipated the bad effects of executing Saddam Hussein on a Sunni religious holiday, and reportedly did their best to delay the execution by a few days. At the same time, having spun the illusion that the prosecution and conviction were done under the authority of the Iraqi government, the United States was not in a good position to resist the Iraqi insistence that the convicted dictator be executed at a time and in a manner of their choosing. At the end all that American military commanders demanded was that Iraq comply with their own law as a condition to be met before obtaining physical custody of Saddam Hussein who was being held in an American military prison at a base called Camp Cropper. It was when high Iraqi officials, including the Iraqi president Jalal Talabani, refused to sign off on the execution order, that Maliki, determined to go ahead with the execution on the Sunni eid, sought and obtained approval for his desired timing of the execution from top Shiite religious leaders in Najaf. The American military officials in charge of the transfer of Saddam Hussein, could only mutter after the execution provoked such outrage that “we would have done it differently.”
In retrospect, there is no doubt that the Americans suffered their worst public relations disaster since the Abu Ghraib torture pictures were spread around the world a couple of years ago. As mentioned, they did their best at the very end to avoid an anticipated hostile reaction to the execution, realizing that hanging Saddam Hussein on a Muslim holiday would be seen as outrageous, not only in Sunni Iraq, but throughout the Islamic world. But the actual event was far worse than what was feared. Not only the timing of the execution but the grisly enactment of the hanging captured on a video leaked to the media made Saddam Hussein death into an occasion of his martyrdom, as well as heaped blamed on the United States for its presumed role. And despite the American frantic efforts to show the world that they did not have any control over the execution, and even tried to delay it, the general impression remained throughout the world that this was a show trial arranged by Washington to vindicate a very unpopular and illegal war.
As might be expected, the worldwide reaction to the execution, especially after the video was shown on TV, was uniformly hostile. Some commentators referred to the hanging death as a ‘lynching.’ Prime Minister Maliki angrily defended the manner with which the execution was handled, insisting that it was Iraq’s right to deal with Saddam Hussein in whatever way they chose. Maliki responded to international criticism with biting sarcasm: “We’re wondering where these organizations were during the crimes of Anfal and Halabja. Where were they during the mass graves and executions and the massacres that killed hundreds of thousands of Iraqis?” In fact, major human rights organizations were very vocal about calling attention to these crimes against the Kurdish minority during the 1980s. It was not these civil society actors, but rather the US Government that was mostly silent about these abuses, valuing Saddam Hussein’s Iraq as a Cold War ally. Of course, Maliki is no position to remind the United States Government of its complicity with these crimes against humanity properly attributed to Saddam Hussein.
The trial of Saddam Hussein on charges of crimes against humanity could have been and should have been a positive experience for both Iraq and the world, but to reach such a result would have required turning the case over to independent and international judicial auspices from start to finish. It would also have required avoiding the imposition of the death penalty, a form of punishment not available under the statute of the International Criminal Court, and increasingly abandoned by democratic countries as morally unacceptable. The unacceptability of capital punishment was aggravated in this instance by the awful spectacle of death by hanging, projecting an ugly imagery around the world that could appeal only to the most bloodthirsty of instincts. The opportunity was completely lost to establish a reliable public record of the oppressive dictatorship of Saddam Hussein. The fearless journalist, Robert Fisk, conveyed the perverse impact of the trial with compelling vividness: “Saddam died a ‘martyr’ to the will of the new ‘Crusaders.”
Beyond this, the trial and punishment should certainly have addressed the full panoply of Saddam Hussein’s crimes, dwelling on those that were most serious, rather than isolating a single incident back in 1982 when 148 Iraqis were killed in the town of Dujail as a collective punishment imposed in response to a failed coup attempt against the Baghdad regime. Not considered in the trial were Saddam Hussein’s far more extensive and consequential crimes associated with the infamous Anfal campaign in the late 1980s when as many as 180,000 Kurds were killed in northern Iraq, many by chemical weapons, the genocidal policies directed at the ‘marsh Arabs’ of the South after the First Gulf War of 1991, the aggressive war waged against Iran in the 1980s that took over a million lives on both sides, the attack on and conquest of Kuwait, and the widespread torture and killing of political opponents during the course of his entire reign. It is likely that the adjourned separate trial on the allegations concerning the Kurds will be continued, but without the presence of Saddam Hussein as the principal defendant, it will be Hamlet without the Prince of Denmark! As the Nuremberg trial of surviving German leaders after World War II made clear, the main achievement of such criminal prosecutions is not the punishment of disempowered leaders, but political education through compiling undeniable evidence of the terrible wrongdoing of those accused and showing in the course of the trial that the contrasting way of the victors is one of fairness and due process with respect to those who stand accused.
Again, we need to ask why was this truncated, dysfunctional, politically illegitimate, and unprecedented approach used, leading to the execution of the main culprit before evidence of the worst crimes of his regime could be presented to a competent tribunal. The only credible explanation is that such an approach conformed to the needs of the occupying power, and was either imposed upon or accepted by the Iraqi government. A fuller exposure of Saddam Hussein’s crimes would have awkwardly inevitably exposed American complicity, but have seemingly served to strengthen the appeal of the Iraqi leadership elected under cover of the American occupation. Iraq was a strategic partner of the United States in the 1980s, the decade in which the worst excesses of Baathist rule took place, including the persecution and execution of Shi’ite religious leaders, including the father and two brothers of Muqtada al-Sadr in 1999.
The US relationship to Saddam Hussein’s criminality is significant, and should not be ignored. It was the United States that encouraged Iraq to attack Ayatollah Khomeini’s Iran in 1980. It was the United States that supplied components of the chemical weapons used against the Kurds and dollar credits facilitating Baghdad’s drive to become a dominant regional power. It was the United States that used its diplomatic influence on the global stage to shield Baghdad from censure in the aftermath of these shocking events, and even dispatched Donald Rumsfeld to Baghdad, reassuring Saddam Hussein that despite his notorious deeds nothing had changed so far as Washington was concerned. And later it was the United States in 1991 after Iraq was forced to withdraw from Kuwait that either acquiesced in, or possibly even authorized, Saddam Hussein’s bloody crackdown of the Kurds in the North and the marsh Arabs in the South of the country.
These historical realities show clearly that it was not politically possible to have a proper trial of Saddam Hussein at this time under these US/Iraqi auspices, but it was also not politically acceptable to create the sort of trustworthy international venue for prosecution and trial that would have exposed the full range of Saddam Hussein’s criminality. And so the reliance on the Dujail incident must have seemed a clever solution from the perspective of the Americans who guided the process whereby the Iraq Special Tribunal (IST) was established. The IST could be charged, as it was, with determining Saddam Hussein’s criminality and punishment by focusing exclusively on an incident involving purely internal Iraqi facts. There is no doubt that Dujail did involve crimes against humanity that, given the statute of the IST, and would produce the intended verdict and impose the death penalty. As such, the Dujail incident provided a sufficient legal basis for executing Saddam Hussein, and at the same time forever avoiding a formal rendering in a court of law of these parts of this dictator’s story that would deeply compromise the occupying power.
Even aside from these considerations, it was never appropriate to rush the process. To move from prosecution to execution so quickly, and by law, in a major political trial of this sort is unknown except in totalitarian states such as Stalin’s Soviet Union or Hitler’s Germany. To carry out the execution five days after the appeal from the sentence had been denied, was to deny Saddam Hussein of most of the thirty days that Iraqi law fixed as the outer limit for carrying out the death sentence. To organize such a trial process while the country is enmeshed in civil war and a war of resistance is further delegitimizing, especially considering that most of those sitting in judgment were Shi’ite partisans. And if this is not enough, Saddam Hussein was removed from power and captured by an invading power that was guilty of waging a war in flagrant violation of the United Nations Charter, as well as in opposition to world public opinion. From many perspectives, those responsible for the invasion as much deserved prosecution as the Iraqi defendants.
Rather than provide a milestone for the rule of law and Iraqi democracy, the trial and execution of Saddam Hussein raises high the banner of vindictive justice that obscures the very criminality that is supposedly being punished. It shifts anger from the accused to the accuser, and incredibly cedes the high moral ground to the criminal voice of Saddam Hussein. His farewell written message calling on all Iraqis to renounce hatred toward one another, and even toward the invader, however self-serving his motives, express an admirable moral sentiment. A remarkable feature of this entire legal drama is to point the compass of moral accountability away from Saddam Hussein, at least temporarily.
It is difficult to interpret, considering the consistent brutality of his rule, but Saddam Hussein’s behavior at the end of his life seemed to suggest a certain softening of his temperament. How should we understand Saddam Hussein’s saving of bread crumbs from his prison food so as to feed birds, his poem that includes the line “..we even treat our enemy with honor,” his gracious words of thanks to those who presided over his captivity, and his dignified demeanor in the face of his taunting hangmen? It is true that Saddam Hussein never expressed any remorse about his past behavior, and continued to affirm without exhibiting a trace of doubt concerning the achievements of his leadership. Perhaps, then the worst result of this dreadfully crafted judicial process and punishment is that it deprives all of us of a needed closure with respect to the man and his deeds. Instead of having a full and authoritative account of Saddam Hussein’s criminality and his evolution as a human being under accusation, we have a shadowy centaurian figure, half martyred and glorified, and half reviled and abused.
The people of Iraq, especially, deserved better, but most unfortunately all indications suggest that this ugly episode addressing the crimes of the deposed dictator is a telling metaphor of the manner with which Nuri al-Maliki proposes to govern post-Baathist Iraq. Instead of establishing a clear discontinuity between the bad times of Saddam Hussein and the new governing process in Iraq, the whole drama of the execution discloses the degree to which Iraq remains victimized by a criminalized form of governance, made that much worse by foreign occupation and an ongoing civil war. It is not surprising that more and more Iraqis, including those who suffered when Saddam Hussein was alive, now lament his removal from power, and recall that at least during his period of rule, there was order and security within the country, as well as political independence.
Richard Falk is professor emeritus of international law and practice at Princeton University, and visiting distinguished professor at the University of California, Santa Barbara.