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Don't Kill Saddam
What should we do with Saddam Hussein?

Josh Glasser
Staff Writer

Almost immediately after the capture of former Iraqi dictator Saddam Hussein last December, the question arose, "Now that we have him, what do we do with him?" Some argued that he should be tried in an American court Illustration By Dustin Ingallswhile others pleaded for a trial in an international court. President Bush pushed for Hussein to be tried in an Iraqi court with American backing.

An important characteristic of such a court would be that it would be free to put Hussein to death, an option not available at some international venues such as the International Criminal Court. While it may seem attractive to assign Saddam the death penalty, the issues underlying capital punishment have heavy moral, practical, and international consequences.

Two moral principles are applicable here. First, in the interest of equality, killing Saddam should receive as much consideration as killing a prisoner in any other part of the world. Thus, if one is morally repulsed by executions in the United States or elsewhere, morality dictates that one should also treat Saddam's execution with moral disdain. Moral opposition to killing a prisoner should not be contingent upon the prisoner’s identity.

Second, there is a utilitarian moral consideration: will executing the dictator make the world a better place? While Saddam's fall from power might certainly have been a good thing, the same argument cannot be made for his execution. An execution might provide a “defining moment” that could be a ratings winner for the news media, but would an execution be making Iraq a better place? Healing the national psyche and the formation of an Iraqi democracy will be based on far-reaching reforms rather than media frenzies. For example, in the former Yugoslavia, former Presidents Milosevic and Tudjman and other leaders responsible for the horrific wars of the 1990s have not been assigned the death penalty, yet the process of democratization continues to move forward. So, from a utilitarian standpoint, the death penalty is difficult to justify.

Executing Saddam creates a moral conundrum in dealing with the crimes of the last 20 years. For example, Saddam Hussein and Donald Rumsfeld had a working relationship during some of Saddam's crimes against humanity in the 1980s. Putting Saddam on trial for capital crimes places him among “worst of the worst” of world dictators and by implication worsens the nature of Rumsfeld's involvement; the Defense Secretary not only aided a dictator but the worst international criminal of an entire decade. The fact that Rusted is still in government and would be overseeing the entire post-war process creates a morally troubling scenario in which accomplices to a crime would not only avoid prosecution but would be given the power to preside over the trial for the life of their former partner in crime.

Practical considerations are a factor in this issue as well. Most importantly, executing Saddam might set back the most vital process occurring in Iraq today: democratization. One of the key components of stable democracy is that issues are settled with words and votes instead of guns and rockets. Vengeance and retribution are dangerous to the formation of any democratic society, a message that could be clouded over by a seemingly retributive execution of the former dictator. As such, the use of the death penalty in Iraq would be a disastrous step backwards for stabilization and democratization efforts.

In another pragmatic matter, how open is a trial likely to be if the death penalty is on the table? The problem in many death penalty trials is that the stakes are so high that the evidence takes a backseat to procedural wrangling intent on “getting the defendant off” or “making sure the killer doesn't get away.” However, more in this trial than in any other, testimony and evidence must be provided freely. Only in this way can the trial pave the way for reconciliation and progress in Iraq. Frankly, it is doubtful that a trial featuring the death penalty would be open enough to include all major issues of the last quarter-century of dictatorship.

Finally, there are serious problems of divisiveness in present-day Iraq, especially between virulently anti-Saddam Kurds and Shiites and the more pro-Saddam Sunnis. An emotional trial for Hussein's life could easily reopen many of the old scars that are hastily being patched over in the interest of peace and stability. Thus, Saddam's trial could be a tactical disaster for democratization and stabilization efforts in Iraq.

Even if all of these moral and pragmatic concerns could be assuaged, it is still dizzying to contemplate the barriers to a fair trial. Nearly every jurist understands that a fair trial is a necessary precondition for use of the death penalty. This requirement presents an array of tactical nightmares for the Hussein trial. Not the least of these are when, where, and how to conduct the trial. For example, to be fair, time must be given to allow emotions to cool, but how much time is necessary? Also, where in Iraq could Hussein possibly receive a fair trial? Finally, how could an impartial jury of Saddam's peers possibly be selected? The tactical problems in ensuring a legitimate fair trial are themselves huge barriers to seeking the death penalty for Saddam.

Though it is rarely framed this way, the death penalty has heavy international implications. The International Criminal Court (ICC), the European Union, and most of the industrialized world do not recognize the death penalty as valid. In fact, using the death penalty in this case really brings to the fore sticking Illustration By Dustin Ingallspoints between the United States and Europe over capital punishment and the use of the ICC, a court whose usefulness the Bush Administration has already rejected. Saddam is an obvious candidate for trial in the ICC, which was created to deal with precisely this sort of international criminal. Yet an American decision to try Saddam in a court outside the ICC, especially to ensure a death sentence, would be a perfect way for the United States to thumb its nose at Europe once again and end any hope of reconciliation with the ICC.

Furthermore, such a decision by the United States could create a severe rift in international criminal justice, between ICC-aligned (anti-death penalty) and American-aligned (pro-death penalty) countries, largely over how to deal with dictators like Saddam. Such a break would be disastrous, because there is no way to implement an effective system of international law without cooperation amongst the world’s most influential nations. Countries must trust each other to be responsible in turning over criminals for international and impartial courts to judge. Shafting the ICC in order to try to execute Saddam on its own would be a detrimental to American efforts to gain international trust. And as Bush has learned so painfully in postwar Iraq, we could all benefit from a little international trust and cooperation these days.

Treasurer Josh Glasser is a junior political science major from Chapel Hill, NC and welcomes feedback at: jglasser@email.unc.edu

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