By Rachel King
December 27, 2006
On November 5, former Iraqi leader Saddam Hussein was sentenced to death by hanging for war crimes after a trial that lasted over nine months. He was convicted for killing 148 people in the Shia town of Djail, following an assassination attempt on him in 1982. An appeal was lodged, which has now been denied. As a result, Hussein’s execution may be eminent.
On the surface, few people will view the punishment as unjust. By all accounts, Saddam Hussein was a brutal dictator who ruled his country with an iron fist, tolerated no dissent, and killed with impunity those he perceived as his enemies. He plundered the countries resources living in extreme opulence. If the death penalty is supposed to be reserved for the worst of the worst offenders, then Saddam fits that category.
However, from a sound public policy standpoint, executing Saddam makes little sense and does nothing to promote justice in the burgeoning democracy of Iraq.
Since the death penalty leaves no room for error, it should only be imposed, if ever, after a fair and impartial trial. War-torn Iraq does not currently have the ability to conduct trials in a manner that sufficiently safeguards defendants’ rights such that people can be assured the death penalty is being fairly imposed. Saddam’s trial did not take part in a healthy judiciary with a neutral judge and competent attorneys who are given free reign to do their job.
For example, before the sentencing, one of Saddam’s attorneys, the eminently qualified former U.S. Attorney General Ramsey Clark, was kicked out of the courtroom after handing the judge a legal memo in which he called Saddam’s trial a “travesty.” Under an adversarial system, Clark has the legal obligation to raise this type of concern. Unless he objects to the trial proceedings, there is no record for the appellate court to review what happened below. Even if the judge disagreed with Clark, the appropriate response would have been for him to accept the memo, thus making it part of the official record of the case, and continue with the proceedings. The judge’s decision to evict the attorney shows he does not understand the importance of a rigorous adversarial process.
The fact that several lawyers who worked on the case were assassinated indicates that Iraqi society is not yet complying with the rule of law. In a stable judiciary, it is vital that each side have zealous advocacy. Members of society may disagree with an attorney who chooses to represent a despised party – whether it be a defendant or a government – but each side must have competent representation for the system to work. Iraqi society, plagued by violence, is too unstable to appreciate that even those who are despised are entitled to competent counsel.
Many witnesses to the trial believed the judge was not in control of the courtroom during the trial, thus making it impossible for either side to present its case. Saddam frequently erupted into outbursts that the judge was unable to control. Likewise, the government was accused by human rights groups of interfering with the proceedings. In fact, the first judge who presided over the case, Rizgar Amin, resigned after complaining of government interference and after three defense attorneys were assassinated.
It is not surprising that the Iraqi judiciary is imperfect. Societies that are recovering from brutal dictatorships need time and assistance to create a balanced judiciary. Those who have been persecuted and then become part of a new government have an understandable desire for revenge, but that will not serve the interests of promoting democracy. If the newly-constituted Iraqi government goes forward with Saddam’s execution, he will become a martyr and his execution will incite Saddam’s supporters to even greater violence to avenge his death, thus continuing the spiral of violence.
This has already begun to happen with clashes occurring in north Baghdad’s heavily populated Sunni district. Sunni politician Salih al-Mutlaq was quoted as saying, “This government will be responsible for the consequences [of the execution], with the deaths of hundreds, thousands, or even hundreds of thousands, whose blood will be shed.”
Some world leaders are predicting the violence will spread beyond Iraq. Vitaya Wisethrat, a respected Muslim cleric from Thailand said, “The hanging of Saddam Hussein will turn to hell for the Americans.” Pakistani lawmaker Jafiz Hussain Ahmed said, “Who will punish the Americans and their lackeys who have killed many more people than Saddam Hussein?” Saddam’s execution would likely increase the threat of terrorism to Americans.
Another concern is that executing Saddam may make it difficult to bring other accused war criminals to justice. Sonya Sceats of the British think tank Chatham House said, “The longer we can keep Saddam alive, the longer the tribunal can have to explore some of the other crimes involving hundreds of thousands of Iraqis.”
There are other paths that fledgling democracies can take to achieve justice apart from pursuing executions. For example, when Nelson Mandela and the African National Congress took power after suffering for decades under the brutality of apartheid, it would have been natural for them to seek the death penalty against those who killed, tortured, and imprisoned unfairly thousands of black South Africans. Instead of seeking the path of revenge, Mandela constituted a truth and reconciliation process so those who had oppressed and those who had been oppressed could tell their stories in a public forum to seek reconciliation with each other. His government also constituted a new Constitutional Court. In one of its first major decisions, the court declared the death penalty unconstitutional, thus assuring that none of the apartheid leaders would be put to death.
Human rights advocates around the world praised the new South African government for these developments. While the situation in South Africa is by no means perfect, the transition to democracy has not involved bloodshed of the former members of the apartheid government.
Even in the United States, with one of the best judicial systems in the world, we do not always provide a sufficiently fair judicial process such that the death penalty should be imposed. A recent survey of the death penalty system in Virginia by former conservative Attorney General William Broaddus, a death penalty supporter, recommended a temporary halt on executions in Virginia until concerns raised by the study could be addressed. New Jersey and Illinois have temporarily suspended executions pending resolution of problems to their systems, and Maryland had a moratorium and is seriously considering repealing its death penalty.
It was important that Iraq try Saddam Hussein for his crimes against the country. But it is equally important that Iraq not carry out the execution. Instead, Saddam should be sentenced to spend his life in prison, where he can every day pay the price for his brutality. Keeping him alive will end the spiral of violence, prevent him from becoming a martyr, and ensure that he is around to take part in additional prosecutions. Also, it will demonstrate to the Iraqi people, and the world at large, that violence is not the only way to pursue justice.
Rachel King is a Professor of Law at Howard University School of Law in Washington, D.C.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.