Saddam’s Execution: Rule of Law or Rule of Tyranny?

Responding to the news Saddam Hussein's execution on December 30, 2006, President Bush noted that Hussein "was executed after receiving a fair trial --- the kind of justice he denied the victims of his brutal regime." (read the New York Times story by Marco Santora, Mames Glanz and Sabrina Tavernise). President Bush's comment echoes a theme that has been frequently sounded by his administration in describing the trial and execution of the former dictator of Iraq, i.e, that both reflect the replacement of the rule of tyranny by the rule of law. Yet several controversies surrounding Saddam’s trial and execution tend actually to blur the lines between tyranny and law rather than clarify them.

• The conduct of the trial against Saddam in which he was sentenced to death has been widely criticized as lacking crucial features of due process. Most importantly, Saddam’s lawyers faced lethal violence (several of them were killed) and the judge who presided over the trial was replaced by action of the ruling Shiite regime allegedly because the sitting judge had shown too much deference to Saddam. This action clearly placed the succeeding judge on notice that the government would accept nothing less than a conviction and capital sentence against Saddam.

• The crime for which Saddam was sentenced involved itself a situation of state execution in which scores of Shiite men and boys were executed for alleged involvement in an assassination attempt against Saddam himself in the town of Dujail. While these executions clearly defied international law and human rights norms, they were authorized by Iraqi law and Iraqi national sovereignty. Unlike some of the Baath regimes other atrocities, these killings took place after trials (no matter how lacking in due process) and represented a response to an alleged act of violence against the regime. Since the trial and execution of Saddam also lack international legitimacy, they too must rest on claims of sovereignty and positive state law, just like the executions for which Saddam was tried.

• The hasty execution of Saddam for the Dujail killings will cut off the current trial in which Saddam stands accused of poison gas attacks against Iraqi Kurds during the Iran-Iraq war, as well as any future trials involving other atrocities. These trials could have served a number of ends vital to the formation of a successful Iraqi nation. One of the most important is establishing a clear historical record of Baathist atrocities by giving a full and open hearing to the defenses that have been and will continue to be offered for Saddam’s actions (e.g., the notion that the gassing was a legitimate act of national defense carried out under the authority of a national leader during a time of war). Another end is to build national unity by documenting the widespread suffering of different communities within Iraq. The hasty execution of Saddam for a crime limited to Shiites, to the exclusion of a full hearing of the grievances of other communities, sends the unintended (or perhaps precisely intended) message that the new Iraq is a regime by for and of the Shiites who intended to dominate all other communities.

As Austin Sarat has argued, capital punishment even under well established court systems like those in the US since the resumption of death sentencing in the 1970s, erodes respect for the rule of law. This is all the more true of the far less reassuring circumstances of today’s Iraq. Saddam’s execution will convince many that the rule of tyranny is far from dead in Iraq.