Saddam Hussein Before the Law

What is at stake in the trial of Saddam Hussein, which is set to begin on October 19? Coming just four days after the referendum on Iraq’s constitution and touted as a “constitutional moment” akin to the trials of Kings Charles X and Louis XVI, the proceedings are supposed to help advance Iraq’s transition from tyranny to democracy. Will they?

So far, all signs suggest that the trial is unlikely to meet its ambitious aims. From the outset in postwar Iraq, criminal justice resembled deracinated constitutionalism: atomistic trials, radical purges, and compromised elections. Most egregious was the post-invasion rush to “de-Ba’athification,” which eviscerated many of the country’s existing institutions.

The mix of individual and collective responsibility associated with repressive regimes often creates a dilemma concerning how to deal with the old institutions. But, in Iraq, flushing out the military and the police merely left the country in a domestic security vacuum. By the time that mistake was recognized, the damage was done, needlessly sacrificing security. Moreover, potential sources of legitimacy in Iraq’s ongoing constitutional reform, such as parliament, were also destroyed.

The lack of legitimate institutions needed to rebuild the rule of law is evident in the debate over what authority and whose judgment ought to be exercised over Saddam Hussein. Should the tribunal be national or international? This question highlights the problematic relationship of international humanitarian law to the use of force.