News that an Iraqi tribunal found Saddam Hussein guilty and delivered a verdict sending him to the gallows provoked cheers in Washington from a beleaguered Bush administration and Pentagon over the weekend. But, much like the killing of Abu Musab al-Zarqawi in June, which did little to dampen the insurgency or quell sectarian violence, Saddam’s conviction may even impede our march to success and frustrate our exit from Iraq. Operationally, Sunday’s decision is likely to further strengthen the Sunni insurgency by giving its leadership another cause célèbre. Saddam’s sentence will do little to promote the rule of law in Iraq because of the idiosyncratic way his trial was conducted. And, in the long run, his conviction and execution will only frustrate efforts to negotiate with Sunni leaders who now find themselves outside the government of Prime Minister Nouri al-Maliki.
There are very few direct connections between Saddam Hussein and the insurgency, though “former regime elements,” as they’re called by the U.S. military, do make up an important part of their ranks and leadership. But the Sunni insurgency has evolved and broadened into something much bigger than a shadow force of Saddam’s cronies and henchmen. From Baghdad north to Tikrit and out to Ramadi, the heart of the Sunni insurgency remains those tens of thousands of disaffected Sunnis who once found themselves at the apex of Iraqi society but are now in its trough. This verdict will add to their hatred of the new Iraqi society, its government, and its occupiers.
Strategically and politically, Sunday’s decision may have the greatest reverberations for the United States and the nascent Iraqi government. Saddam’s conviction and sentence will undoubtedly frustrate ongoing efforts to negotiate with Sunni insurgents and politicians. Saddam was a Sunni Muslim who continued the British tradition of enfranchising a Sunni elite while repressing the Shiite majority. Now Saddam has been convicted of killing hundreds of Shiites in one act of that long story. Many Shiites will view his death as the ultimate triumph over that flawed order, while many Sunnis will view it as the death of their hopes in Iraq. Prime Minister al-Maliki has proved himself capable of partially bridging the Sunni-Shiite chasm in recent months, but only when he forswears vengeance, such as with his original proposal to offer amnesty to Iraqi insurgents. Hanging Saddam will destroy what little hope remains for reconciliation between Sunnis and Shiites in Iraq.
What’s more, this verdict and its timing carry the taint of U.S. domestic politics. Iraqis and many others in the Middle East follow American political developments closely on Al Jazeera, Al Iraqiya, and the BBC because they know that our elections often determine the course of our foreign policy. Only a fool could fail to notice the proximity of this decision to the U.S. midterm elections, and there are few fools on the Iraqi street. Such perceptions make the verdict suspect in the eyes of Iraqis and Arabs, regardless of the trial’s fairness.
Legally, the tribunal’s judgment will do little to advance the rule of law in Iraq. The Supreme Iraqi Criminal Tribunal, which passed this sentence, is not an Iraqi invention; it is an American one. Its charter was written in English and translated into Arabic and then handed by American advisers to the Iraqi Governing Council as a fait accompli by the Coalition Provisional Authority in late 2003. On the Iraqi street, it is widely known that Americans advise every aspect of its operation, and they are believed to call the shots behind closed doors. The tribunal operates under a different set of laws than conventional Iraqi criminal courts, and many Iraqi lawyers I knew saw it as an affront that their courts were not considered good enough to try Saddam. Consequently, the verdict will do little to bolster the legitimacy or effectiveness of the regular felony courts across Iraq.
When I walked through the joint-coordination center in Baqubah—a sort of 911 call center for Diyala province, which my team advised—I frequently saw my counterparts watching the Saddam trial on television. Many were glad to see him in the dock, but they also admired his antics and tirades. The “lion of Iraq,” as he called himself, came alive with his rants against the judge and the United States. Many cheered Saddam’s recalcitrance as a kind of resistance. These Iraqis saw the hearings as more of a spectacle than a true adversarial trial. They knew the trial was victor’s justice, the verdict preordained, and the outcome as much as in doubt as that of a gladiatorial battle in Rome, where all that was unknown was the amount of gore that would be shown to the audience. These Iraqi men doubtless saw the verdict and applauded it, but I doubt they saw it as any sort of harbinger for the rule of law in their chaotic country.
In theory, the Iraqi tribunal reached its verdict solely on the evidence before it, without considering any of these larger issues. We believe in this legal formalism here in the United States and place great stock in the ability of courts to resolve disputes without referring to social context or larger truths. But in the apocalyptic world of Iraq, a state beyond civil war, it is impossible to believe that this court rendered its verdict in a vacuum. On the way to justice, many of the court’s lawyers and judges found themselves threatened; a few were killed. Judges and lawyers elsewhere in Iraq also found themselves under siege. Death and violence hover over every aspect of Iraqi life, and they were specters in Saddam’s courtroom too.
Saddam was a bad man; executing him for his crimes may be a just result for Iraqis and the world. Still, implementing this sentence without a second thought will prove to be a Pyrrhic victory. The Iraqi government should seize this opportunity to reject the Iraqi special tribunal altogether. If Prime Minister Al-Maliki is truly not America’s man in Baghdad, then he should prove it by rejecting this verdict, which is so clearly America’s verdict. The Iraqi parliament should create a new Iraqi war crimes tribunal under Iraqi law to try Saddam and his top henchmen. It should be rooted in Iraq’s law and legal system, with appeal to judges selected via Iraqi political processes. Americans should play little to no role, except perhaps as interested spectators. The point is not that Saddam should get a second chance or that an Iraqi trial might be somehow more likely to set him free. In any venue, the massive weight of evidence bodes ill for Saddam’s future. The point is one of process and perception. Achieving Iraqi justice by Iraqi hands will serve our ends much better in Iraq than American victor’s justice will.