Saddam's Botched Trial

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It is now generally accepted that the hanging of Saddam Hussein was a disaster. But at least it wasn't our fault. "Would we have done things differently? Yes, we would have," said U.S. military spokesman Gen. William B. Caldwell in Baghdad. "But that's not our decision. That's an Iraqi government decision." At the White House, the President's men have been all too eager to lie low and let someone else take the fall for the latest mess. "The President is focused on the way forward," the deputy White House press secretary Scott Stanze told reporters. "So these issues are best addressed out of Iraq."

Well, not so fast. It's true that no Americans were actually present at the gallows when it became a sectarian shop of horrors. Though there are serious questions about whether Prime Minister Nouri al-Maliki abided by Iraq's own laws when he decided to speed up the execution, it's hard to argue that the U.S., even if it were so inclined, could have done anything to prevent the hanging at such a late hour. But it's disingenuous to argue that the Bush Administration bears no responsibility for the ugliness that transpired.

The U.S.'s complicity in Saddam's execution dates back to 2003, when the Administration refused to consider the establishment of an international tribunal to try Saddam and his henchmen. Even before the fall of Baghdad, State Department working groups had begun drafting plans to prosecute Baathist leaders for war crimes. As documented by the International Center for Transitional Justice, the U.S. insisted that the war-crimes trials would follow "an Iraqi-led" process. Though the U.S. said it welcomed international participation in the trials, Administration officials pointedly ruled out th e idea of creating international courts modeled on the U.N.-run tribunals for Rwanda (based in Tanzania) and the former Yugoslavia (based in the Hague.) At the time, the Administration castigated those courts for their plodding brand of justice and inaccessibility to ordinary people. And besides, who needed the U.N.?

Of course, given that the Security Council had already refused to endorse the U.S. invasion, it's highly unlikely that the U.S. would have secured agreement to establish an international tribunal. But the U.S. didn't even think to try. And rather than wait for the establishment of a democratically elected Iraqi government to figure out what to do, the U.S. turned over the process for devising rules for the trials to the Iraqi Governing Council, the group of hapless exiles appointed by the Administration in June 2003 and promptly dumped a few months later. Once the Governing Council decided that the death penalty could be administered in war-crimes cases, most U.N. offices and international human-rights groups refused to take even an advisory role in the proceedings.

Would an international tribunal for Saddam, sanctioned by the U.N., have been preferable to the trial conducted by the Iraqis? As I argued before Saddam's hanging, I don't think the tyrant got a raw deal. His trial, though flawed and highly compromised by violence, ultimately resulted in a just verdict supported by the evidence. The trouble is that because the court that tried Saddam was set up by the occupying power and run by a partisan Shi'ite government, few Sunnis believed the proceedings were legitimate, or accepted the court's verdict as impartial. And that was before the ghastly scenes of last Saturday morning. Now you'd be lucky to find a Sunni willing to concede he should have been tried at all.

Critics of the U.N.-driven approach say that had Saddam, like Slobodan Milosevic, been prosecuted by international lawyers in a third country, his trial would have been too remote to have provided Iraqis any sense of closure. But does anyone feel closure now? Rather than a moment of national reckoning, the execution of Saddam will be remembered by many as a brutal act of sectarian vengeance. Of course, the death penalty is prohibited in U.N. tribunals — a point often raised by defenders of the Iraqi courts. They argue that war criminals should face the toughest penalties allowed by their respective country's legal systems. But war criminals from the former Yugoslavia, Rwanda and Sierra Leone convicted by U.N. tribunals were spared, even though the death penalty remains on the books in both Rwanda and Sierra Leone and was legal in Serbia until 2002. Is anyone prepared to argue that those war-ravaged countries would somehow be more peaceful, stable and reconciled had they put every last killer to death instead?

It's hard to escape the feeling that the Administration's insistence on "an Iraqi-led" process for trying Saddam had little to do with justice or reconciliation. The Bush Administration remains openly disdainful of bodies of international justice, most notably the International Criminal Court. As a result, the U.S. showed no more interest in seeking international legitimacy for trying the Baathists than it did in deposing them. And like so much else about this war, the reliance on Iraqi courts was informed by a fantasy — the idea that Iraq's new leaders and the institutions they have established would somehow behave as equitably and decently as our own. Last weekend we saw the truth instead.

So what should be done now? If the U.S. were truly interested in averting more sectarian spectacles, it would go back to the Security Council and ask for the establishment of a U.N. tribunal for the members of Saddam's regime still awaiting trial. Then it would airlift all of those in custody out of the Green Zone and stick them in a secure facilities outside Iraq — perhaps in some of those "black sites" the CIA says it has vac ated. The Iraqis would howl, of course, but they lost their moral credibility with last week's lynching. The Bush Administration may try to avoid responsibility for what happened last Saturday. But it's time they take some now.