The politics of Saddam's trial

About the author
Eric Posner is a professor at the University of Chicago Law School, and co-author (with Jack Goldsmith) of The Limits of International Law (Oxford University Press, 2005).

What would it require for the trial of former Iraqi dictator Saddam Hussein to be a moral, legal and political success – for the people of Iraq, for the international community, and for the interests of justice itself? One way to answer this question is to engage in the following thought experiment.

Imagine that Saddam’s trial, when it reassembles on 28 November after the initial hearing on 19 October 2005, proceeds quickly and smoothly. The lawyers and judges comport themselves with dignity. Saddam himself does not grandstand but answers the charges. Witnesses testify credibly; documents confirm their testimony. No one doubts the evidence that Saddam and his co-defendants are legally and morally responsible for the atrocities at Dujail, or for any of the other crimes Saddam is eventually charged with. The trial does not exacerbate sectarian tensions or interfere with constitutional politics in Iraq. Saddam is duly convicted and executed.

Also on the trial of Saddam Hussein in openDemocracy, by two researchers at the International Center for Transitional Justice:

Hanny Megally & Veerle Opgenhaffen, “Saddam’s trial: the needs of justice

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Leaving aside the important question of whether the death penalty can be justified, a trial of this kind would certainly be a moral success. Saddam’s many victims would see their moral claims vindicated, even if only some of his crimes are adjudicated. Such a trial, by showing that national leaders can be subject to legal process even in the midst of civil disorder, would also be a legal success. But would such a trial be a political success, at a time when a political success in Iraq is needed more than ever? This question is more complicated, and much depends on whether one focuses on the needs of the Iraqis or takes an international perspective of either leftwing or rightwing character.

From an international perspective, people both on the left and right must view the trial with mixed feelings.

On the left (both in Europe and the United States), a successful trial and conviction of Saddam would advance international law by showing once again that it is possible to punish national leaders for international crimes; yet the trial is taking place at all only because of an illegal invasion, and one that has been marred by war crimes such as the mistreatment of prisoners at Abu Ghraib.

Thus, a successful trial might send the political message that unilateral use of military force can properly be used to enforce international criminal law. This message would benefit the US government, which will always be able to discover international criminal law violations in the nations it might like to invade; but it would discomfort the left, which does not trust the US government and has long sought to subordinate the use of force to international law.

On the right (in the United States, mostly), there is awareness that international criminal law makes no distinction between powerful nations like the United States and weak nations like Iraq. If, then, the US wants to persuade the world that Saddam’s conviction justifies the American invasion of Iraq, then it must implicitly agree that all leaders who violate international law should be punished.

America has for decades claimed the right to launch unilateral wars for reasons of national security, and in many of these wars there have been real or arguable war crimes that can be traced to the top. America’s opposition to the International Criminal Court rests on the premise that American soldiers and civilians should not be subject to international criminal law without American consent – that international criminal law is subordinate to the needs of security policy. Thus, for the right, a successful trial would at least partly vindicate America’s use of force in Iraq, but also undermine America’s claim that its own leaders are not themselves accountable to international criminal law.

An impossible choice

Saddam’s trial, then, can be considered an embarrassment to both sides of the political divide. The closest historical comparison is not the trials at Nuremberg or Tokyo, or the trial of Slobodan Milosevic, but the 1960 trial of Adolf Eichmann in Israel.

Eichmann was seized by Israeli agents on Argentine soil in violation of basic principles of international law. He was flown back to Israel, where he was tried and executed for his role in administering the holocaust. The trial embarrassed the world because it presented an irresolvable dilemma: one could not condemn it without dishonouring the victims of the holocaust, nor endorse it without disparaging the principles of international law. As a result, nearly everyone had an interest in forgetting about it; today, it is the anniversary of the Nuremberg trial, not the trial of Eichmann, that is remembered.

Also in openDemocracy on legal and moral accountability for political crimes:

Anthony Dworkin, “The trail of Milosevic: global law or war? ” (February 2002)

Victor Peskin, “After Zoran Djindjic: the future of international criminalk justice” (March 2003)

Nahla Valji, “No justice without reparation” (July 2003)

Anthony Dworkin, “The trials of global justice” (June 2005)

Similarly, one cannot condemn the trial of Saddam without dishonouring his victims; and, indeed, what would the alternative to trial be? Release is out of the question if we care about reducing the violence in Iraq; an international trial would not eliminate the moral awkwardness, because this awkwardness arose from the means of his capture not the form of the trial. Indeed, one suspects that early supporters of an international forum for Saddam must secretly feel relieved that international judges do not have to confront the problem of how to treat a defendant whose seizure resulted from an invasion that violated the United Nations charter.

The problem, then, is that if one cannot condemn the trial of Saddam without dishonouring his victims, one cannot endorse the trial without disparaging the UN charter, which is at the heart of modern international law. What to do? The Eichmann trial provides the precedent here: an inconvenient trial that cannot be made compatible with conflicting norms of international law is best forgotten, and likely will be.

But these are problems for the international community, not for the Iraqis, who might do well to recall the reaction to the 1961 trial of Adolf Eichmann in Israel, where it was a grand political success. The Eichmann trial marked a turning-point when victims of the holocaust could be recognised and honoured rather than shunned, and the holocaust itself became central to Israeli identity.

The trial of Saddam could play a similar role in Iraq. It could mark the point, in historical memory, at which Iraq abandoned its authoritarian traditions and began the transition toward democracy.

The trial could still be a failure; it could even provoke further violence. But if it is a success, the trial will be of great moral and political importance for Iraqis. As for the rest of the world, it will be a useful even if awkward reminder that the requirements of international law and morality are not always consistent with the needs of a long-suffering people.