The Bungled Death of Saddam Hussein

by Hilaire de Sauveterre (Jan. 2007)

The execution took just a few minutes.

BBC report, 05:43 GMT, 30 December, 2006.

It is a few minutes before 6:00 AM. The prisoner is led forward through a gray steel door into a cramped room. Sleepless men move uneasily around him, nerves pinched in anticipation of death in the flesh. The prisoner moves slowly. Bodies press close. As the prey rounds on the predator, the pack’s fear balances on the knife edge of panic. The prisoner is calm. His lined face is impassive, his beard trim and silver. He wears a black tailored overcoat and a clean white shirt; a man dressed for an occasion. His captors are motley in sweaty shirts and leather jackets, eyes darting through balaclavas. The prisoner is led up the scaffold. Around him, dry lips raise a nervous bruit. The prisoner is impassive, instinctively and habitually defiant. A black silk scarf is draped around his neck. He shakes his head at the black hood offered him; only the executioners will be hooded.

A voice calls out in prayer. Mercy be on those who pray for Mohammed and the household of Mohammed. The prayer is repeated by the crowd and by the prisoner. Two voices break the prayer. And hasten his return, curse his enemy and grant victory to his son, Muqtada, Muqtada, Muqtada! Surprised, the prisoner turns his head slightly. He sneers. Muqtada? This is manly? Jeers echo. To Hell! The prisoner laughs quietly. And disgrace to you. Redoubled jeers. Long live Mohammed Baqir Al-Sadr. One voice protests the clamor. No. Please, no. I beg you. This is an execution. Two hooded guards slip the rope around the prisoner’s neck. The clamor grows. The noose is pulled tight. Nothing left to fear, the prisoner accepts his end as he is guided over the trapdoor. There is no god but Allah and Mohammed is the messenger of Allah. There is no god but Allah and Mohammed is the messenger of Allah. There is no – A mechanical creak. The wooden trapdoor crashes open; the body jerks downwards, the rope snaps taut, and the prisoner’s legs flail briefly, then sway gently. The crowd bays its triumph, cheers overfilling the chamber. Suddenly bold voices vent hatred and fear in equal measure. The dictator has fallen! God bless Mohammed and the household of Mohammed! Outside the prison, the muezzin’s plaintive adhan rises over the dark roofs of the ancient city. Word begins to travel through the cold Baghdad morning, through telephone wires, internet cables, and satellite signals streaming outwards in all directions, carrying the news to the world that Saddam Hussein Abd al-Majid al-Tikriti, tyrant, is dead.

* * *

So it was, a short, shabby end to a long and bloody affair; more a lynching than an execution. Unfortunate, really, when the Iraqi government had handled the trial so well. So well, in fact, under the circumstances that one hopes the legal carnies that presided over the seven-year Milosevic sideshow in The Hague were taking notes.

Still, the two proceedings – Slobo in The Hague and the Butcher in his Baghdad – were ultimately embarrassments. In Milosevic’s case, the failure to secure a conviction within seven years was prosecutorial and institutional incompetence. Instead of whining that Milosevic’s death in prison denied his victims justice, the prosecutor Ms del Ponte should have been grateful. Milosevic’s timely end gave his victims the one thing that the International Criminal Tribunal for Yugoslavia was not empowered to offer – his death. Sic semper tyrannis. The Saddam court was at least competent, but his botched execution reveals the inadequacies of such trials.

Like all political trials, this was a stitch-up job from the beginning. The purpose was to convict Saddam Hussein, just as the purpose of the Nuremberg trials sixty years ago was to convict Reichsmarschall Goering – that effete, aristocratic dope fiend – and as many of his cohorts as possible.* Even when Goering cut and thrust his way through Robert Jackson’s cross-examinations, toying with the former Supreme Court Justice like a Bavarian moggie with a befuddled Yankee country mouse, there was no doubt that the judges had their black caps at the ready. Nor was there any doubt that Saddam Hussein would be shot, hanged, or otherwise forcibly shuffled off this mortal coil.

This is the uncomfortable paradox of political trials: Can a court dispense justice when it is convened to convict and not to try with the possibility of acquittal? And, if we thought there was any chance that a court might acquit a Hitler or Saddam, could we convene it in good conscience?

Nuremberg has much to answer for, though it needn’t have been that way. Churchill and the Lord Chancellor, Lord Simon were initially set on summary executions for responsible officers and party officials, with one-day military trials to establish identity, not guilt, and Stalin favored “liquidating” 50,000 German Nazis and sending several million able-bodied Germans to Russia and France to work as compensatory slave labor. Even FDR agreed that the mass-slaughter of the German command was the best course, and endorsed the Morgenthau Plan to reduce Germany to a 19th Century agrarian society. Curiously, it was Stalin who, in the end, changed his mind and insisted that executions be preceded by judicial process (“no doubt on the Soviet model” Lord Simon dryly observed, referring to the 1943 Kharkov show trials).

After the conferences at Quebec and Yalta, the Americans also came round to the idea of formal trials with accompanying legal process, though future Nuremberg prosecutor Justice Robert Jackson objected that: “If we want to shoot Germans as a matter of policy, let it be done as such, but don’t hide the deed behind a court. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.” He would later add that “if these persons were to be executed, it should as the result of military or political decisions.” Eventually, however, Jackson would take the central role in drafting the London Agreement – that act of Himalayan hubris, which vainly sought to criminalize the very act of waging war, and which led to Slobo’s ignoble death in his cell and Saddam’s harangues to the Iraqi court (as well as his patriotic appeals to his former subjects, which threaten to inspire Ba’athist loyalists much as Goering’s perorations lifted the hearts of German prisoners of war listening to the live broadcasts of his testimony).

After Justice Jackson had accepted his role at Nuremberg, others took up his criticism. While Jackson was engaged in lengthy preparatory meetings with the British (amiable and accommodating), French (truculent), and Russian (mercurial when not outright obstructionist) delegations, leading members of the Senate and the American Bar aired their disapproval. Senator William Fulbright did not believe that there was any law of war under which the accused could be tried, and so argued that “[t]herefore they must be executed forthwith as a political decision.” Presciently, he further objected that “[a] trial means delays – and it means giving the defendants a chance to tell their stories to the world.” Would that Milosevic’s and Saddam’s prosecutors had listened to the good Senator’s counsel.

Justice (soon to be Chief Justice) Hugo Black was equally harsh in his condemnation of what he (rightly)** perceived to be a rigged political trial. Justice Black was particularly concerned with the danger political show trials pose to the dignity of the law. “It would not disturb me greatly if the power of the Allies was openly and frankly used to punish the German leaders for being a bad lot,” he said, “but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime.” Even the mainstream press – so pious today in its concern for military due process when it can be used to unsettle the current administration – wondered “what we are waiting for to shoot Hermann Göring?” And a Gallup poll in May, 1945, showed two thirds of the American public favored executing Goering without trial.

* * *

The main arguments in favor of political trials are that summary executions look too much like victor’s justice, and that the example of the rule of law in formerly lawless societies is ameliorative in itself. The response is that trials are also, inevitably, victor’s justice – there is no hope of acquittal if they are done right. And the legal predetermination on display in Iraq itself undermines the ideal of the rule of law, tainting new legal institutions ab ovo. The judicial process, once infected with politics, is not easily cured; its health is better served by preventative inoculation and quarantine. Finally, such trials – particularly if overseen by international tribunals – take too long. They drag on for years and the world moves on. When it comes to executions, the best rule is: “If it were done when ’tis done, then ’twere well / It were done quickly.”

Note that these objections have nothing to do with whether Saddam Hussein received a “fair trial.” I have no idea whether the trial was fair according to Iraqi notions of due process, let alone by American standards. I did not follow the proceedings closely, but what I saw appeared reasonable enough, given the lethal pressure on the court. But even if the trial had been conducted by the leadership of Human Rights Watch under the most exquisitely scrupulous of procedures, it would not have made a whit of difference to Saddam’s sympathizers. If even some Americans believe that Saddam’s execution was a “completely illegal,” and orchestrated as part of the Republican Party’s “war for air dominance of TV,” (to quote some early responses on dailykos.com), is it any surprise that many Iraqis feel the same way?

The death of Mussolini, machine-gunned by partisans and hanged by his feet, is the model. Judicial involvement should not extend beyond identifying the accused, reading the bill of charges against him, donning a black cap, and solemnly pronouncing the sentence. By this rule, Saddam should have been hanged within twenty-four hours, and his bloody head left to rot on a pike in central Baghdad. He should not have been permitted to preen for court cameras, insult his judges, and encourage his Ba’athist loyalists. The American soldiers who captured Saddam did the world a great disservice by not shooting him in his spider hole. “Shot while trying to escape” was, I believe, the useful WWII euphemism. Instead he died nobly, a paragon of defiance.

May God have mercy on his soul.

* The fact that several Nuremberg defendants were actually reprieved only shows how far the four powers overreached in their ad hoc prosecutions, but there was never any doubt that Goering (or Hitler, had he lived) was going to be hanged.

** Among the (often necessary) biases in the proceedings were the court’s: disregard for the rule against ex post facto prosecutions; refusal to let the accused present a tu quoque defense (almost every charge against the Germans could have been leveled at Churchill, Truman, or Allied generals); unbalanced rules with respect to the presentation of opening and closing statements; denial of defendants’ lawyers access to potentially exculpatory documents; and close association with the prosecution (the Russian judge Nikitchenko was the chief Russian prosecutor, involved in framing the charges and selecting the accused, until he was elevated at the last minute to the role of judge).