How to Judge the Trial of Saddam Hussein

Over the coming days and weeks — throughout the appeals process, up to and including the day of the execution itself — you are going to hear a lot about what went wrong with the trial of Saddam Hussein. You will be told, as an Amnesty International director put it, that the trial “has been a shabby affair, marred by serious flaws. . . . Every accused has a right to a fair trial, whatever the magnitude of the charge against him.”

You will hear many denunciations of the verdict itself: The British Guardian newspaper called on Iraq to maintain a “principled opposition to the death penalty, to which there can be no exceptions. No European country now executes its criminals.” You will also be told that the judges were incompetent, that the Iraqi government interfered constantly and that the international legal community loathed the trial from the start. All of this is true — and all mostly irrelevant.

In fact, all post hoc political trials are in some sense “victor’s justice.” That’s just the nature of putting on trial people who were not doing anything “illegal,” according to the laws of their totalitarian society, at the time they committed their crimes. The International Military Tribunal that sentenced the Nazi leadership at Nuremberg not only wrote special rules to duck the question of its own dubious legality but even accused the Nazis, at one point, of murdering some 20,000 Polish officers at Katyn and elsewhere, a crime that the Soviet judges — among them an infamous participant in show trials — knew for a fact that the Soviet Union itself had committed. The much-vaunted, approved-by-international-community trial of Slobodan Milosevic evolved into an occasion for the Serbian ex-dictator to carry on an extended rant. In part, the decision to hold Hussein’s trial in Iraq was made in order to avoid that kind of U.N.-sanctioned failure. In part it was made because back in 2003 the U.N. Security Council — led by France, Russia and China — told the Iraqis organizing the trial that it wanted nothing to do with the trial anyway.

In truth, though, the shambolic and incoherent nature of this trial was not so much evidence of too few foreign human rights lawyers as it was yet another byproduct of the shambolic and incoherent nature of the U.S. occupation of Iraq. Clearly the violence outside the courtroom affected what happened inside: Defense lawyers were murdered, judges traveled under armed guard and members of the prosecution said privately that they still felt afraid when Hussein came in the room. At times, their fear showed, adding to the appearance of incompetence. Even now, the chief investigative judge visits mass-grave sites in strict secrecy; his family is in hiding, as are the families of other judges.

The violence outside the courtroom also affected how the trial was perceived outside its walls. Televised testimony, which Iraqis initially found riveting, grew less relevant as the violence increased. The trial became nothing more than the background noise of the sectarian struggle: On Sunday, Shiites cheered the verdict while Sunnis denounced it. Imagine how different Hussein’s death sentence would sound today if a stable, peaceful Iraq with a reformed judicial system were uniting to declare it, unanimously. Even the British media might then accept that, in such extraordinary cases, the Iraqis are allowed to choose penalties of which Europeans disapprove.

And yet, in the end there is only one standard by which the trial of Hussein and other Baathist leaders should be judged: Did it or did it not compile a true record of Hussein’s crimes — a record that in some distant, future, peaceful Iraq, will be available to help Iraqis understand what took place during Saddam Hussein’s reign? Though it is unfashionable to write anything positive about Iraq right now, the answer is that it did. The crime for which Hussein was condemned — the torture and execution of 148 people in the small town of Dujail more than two decades ago — was well documented. Witnesses and archives were produced. Cross-examinations were held.

In August the Iraqi court started hearings in a second trial, this one designed to examine the Anfal campaign of 1987-89, during which Hussein murdered up to 180,000 Kurds. Already, some dozen witnesses have testified about what they saw when Hussein, at the height of the campaign, unleashed chemical weapons on whole Kurdish villages. Large parts of Shiite and Sunni Iraq are hearing these stories for the first time. Listening to them may someday, in that distant, future, peaceful Iraq, help them to understand what Kurds experienced under Saddam Hussein’s reign and help them to achieve some kind of reconciliation.

It is true that the execution of Hussein, if and when it occurs, could well have a positive effect on Iraqi politics. If nothing else, it will eliminate once and for all the Baathist dream of a Hussein-led revanche — a dream that even Hussein himself appears to have cherished; witnesses say he was genuinely surprised by the verdict and was shaking afterward. But his death will also probably put an end to this truth-telling project, one that has been unique and unprecedented in the Arab world. For the first time, an Arab dictator was held accountable for crimes against his people. Thanks to American incompetence in Iraq, it may be the last time for a long time, too.

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