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Friday, October 21, 2005
Transitional Justice as Reality TV: Saddam's Trials

In case you missed hearing about day one of the Hussein trial, the former Iraqi President refused to give his name to the judge. Apparently the entire nation that isn't consumed in the insurgency war abandoned cars as the gas pumps and stopped working to watch the trial of "Saddam Hussein al-Tikriti", deposed President of Iraq, and former Prime Minister. Like any truly innocent man, he apparently walked in looking old and confused, clutching a Koran. The drama was set to begin.
Instructed by the lead judge, Rizgar Mohammed Amin, to identify himself, he challenged the authority that presumed to put him on trial.

"Who are you? What does this court want?" he demanded. "I don't answer this so-called court, with all due respect, and I reserve my constitutional right as the president of the country of Iraq.

"I don't acknowledge the entity that authorises you, nor the aggression, because everything based on falsehood is falsehood."

Four times he was asked his name; four times he refused to give it. He asked to make a statement to the court and the judge answered that he should "relax" and promised he would have his chance to speak later. "You know me," Saddam replied. "You are an Iraqi and you know that I don't get tried."
Other sources reported that Saddam quipped: "If you are an Iraqi, then you already know who I am." There was reportedly also the time when he yelled at one of his fellow convictees when he referred to himself in relation to the "former Iraqi President." Saddam thundered: "I was not deposed!" Good stuff. It was amusing to see him invoke his constitutional rights as President. Didn't we change that constitution?

If you believed that the situation couldn't get more comical, in a headline worthy of the Onion, we find "Saddam's lawyer kidnapped." Is Nixon in charge of the prosecution team? Nine National (New Zealand) News reports:
The abduction came as Saddam's lawyers drew up a battle plan for his next court date after the stormy start of a landmark trial many fear will exacerbate Iraq's deep sectarian divide. A defiant Saddam and seven former regime officials all pleaded not guilty Wednesday to charges including murder and torture on the first day of a trial by millions watched across the globe.
"The trial of the 21st Century — Saddam and his era in the dock," was the headline of Iraq's Al-Mashiraq newspaper. Saddam and the seven former cohorts for the killing of more than 140 Shiites from the village of Dujail in 1982 after an attempt on his life there. The accused face execution if convicted.
The New Zealand News channel somberly added: "It is the first time an Arab leader has gone on trial for crimes against his own people." Thanks. I'm happy to see that someone is keeping count. The News got it right though: the trial of Saddam is a trial of his era and his regime. As such, it is an important vehicle to legitimate the current consitutional, legal order and contrast it to the former "bad" state. In a bizarre twist of fate, the legal trial seems to be about white men saving brown people from brown men. Have we seen this before? Colonialism? Surely you jest. The double irony comes that this removal of the leader may ultimately be better for the nation of Iraq as it distances itself from the Baathist past. Needless to say that this trial comes against the backdrop of the election in Iraq. My original thoughts on the trial here.

Eric Posner, international law guru and skeptic here at the University of Chicago (Law School) compares this to the trial of Charles I, 1649. Of course, I should be careful to praise Posner too much given this turgid explanation of the fairness of Saddam's trial:
Whether Saddam is executed or imprisoned for life, the outcome will be (substantively) fair, regardless of whether the trial is procedurally fair. The only possible unfairness would be an acquittal or short sentence. To be sure, the trial should be procedurally fair, to the extent that logistics, politics, security, and administrative convenience permit. But procedural fairness does not exist in a vacuum; it must be weighed against other considerations. [Human Rights Watch]-style legalism is what led to the Milosevic trial, which has been dragging on for almost four years with no end in sight. If procedural fairness as HRW understands it requires a four year trial of Saddam, then better to do without procedural fairness. (emphasis mine)
Apparently we have a choice between procedural fairness and substantive fairness. That at least is possible to grasp. But how does one determine what is "substantively fair" in a vacuum outside one's own subjective, particular preference. For a legalistic moralizing doesn't occur in a vacuum? The comparisons of Saddam to Hitler, and the media emphasis on his gassing of the Kurds (no mention was given of Kurdish terrorism) surely won't have an effect on what we perceive to be "substantively fair".

My favorite criteria that Posner is ready to dispense with is administrative convenience. I'd love to hear a defense of that remark. What is the rule of law if not procedural fairness to create a potentially objective mechanism located outside individual preference? Given that the state needs this trial to shore up legitimacy, it better be as fair as possible. Otherwise the new Iraqi state looks like a puppet of the United States, whose on legal record is looking a little spotty right now. (Did someone say torture?)

Although to hear a law professor offer that law is procedurally fair "to the extent that logistics, politics, security, and administrative convenience permit" might have been worth that eruption of dislogic. Law is just politics, and politics is about power, dominion, and domination. You know what's missing from that list? Fairness, justice, and truth. A pity, really.