The execution followed the classic pre-modern pattern for such events so well analyzed in the European context by Michel Foucault (Foucault, Michel. 1977. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage Books). The execution was public. "Saddam Hussein may have been the first chief of state executed in the age of the Internet and the camera phone. Probably because of that, his death was graphically documented on video and available worldwide within hours." (Qassim Abdul-Zahra, "Amateur Video Shows Saddam’s Execution," The Buffalo News, Dec. 31, 2006 at A-6 (AP)). The ceremonials of execution, from trial, to appeal, to the niceties between the occupying power and the Iraqi successor state apparatus added a certain dignity to the process. The execution itself was merciful by the traditional standards of the region and suitably symbolic for Western tastes (the convicted Nazi war leaders had also been executed by hanging). And Saddam appeared calm and in control—the very picture of a national leader facing execution. "Saddam appeared to smile at those taunting him from below the gallows. He said they were not showing manhood." (Steven R. Hurst, "Saddam Defiant Until the End: Exchanged Taunts With Onlookers," The Buffalo News, Dec. 31, 2006 at A-1, 6).
Most media coverage focused on the techniques of execution and its political effects. There were great fears that the execution would be characterized as merely a form of sectarian and ethnic revenge (by the Shi’a and Kurdish peoples against a representative of Sunni domination). "In Baghdad’s Shiite neighborhood of Sadr City, victims of his three decades of autocratic rule celebrated in the streets, dancing and beating drums and hanging Saddam in effigy. Celebratory gunfire erupted across other Shiite neighborhoods in Baghdad and other Shiite regions of the country." Steven R. Hurst, "Saddam Defiant Until the End: Exchanged Taunts With Onlookers," The Buffalo News, Dec. 31, 2006 at A-1. The West, no less parochial than Iraq, took the opportunity of the execution to further their political and cultural campaign for the elimination of the death penalty. (See, News Wire Services, "Europe, Vatican Criticize Hanging of Saddam," The Buffalo News, Dec. 31, 2006, at A-6). None of this is either unexpected or to be condemned. There is a certain comfort in business as usual. And I have no quarrel with any of this.
I write, instead to highlight another step in an important development that may be overlooked in all of the fuss that attended this execution three years in the making: the importance of this trial and subsequent execution for the construction of a process oriented global common law and the rise of a global class of common law bar and judiciary to oversee and protect this rising body of customary ‘higher’ law. This ‘higher common law’ is focused on the regulation of the actions of those with authority in the apparatus of nation states, usually but not always, its government. This regulation has a substantive component—with a basis in the developing international law of human rights and so-called humanitarian law. It has a process aspect as well—grounded in western notions of due process, that is, that a person subject to the authority of this ‘higher law’ may indeed be deprived of life, liberty or property, but only in accordance with formal process and judgment. It has been developing a mechanics of enforcement, through the creation of tribunals, increasingly permanent, for trying, rendering judgment and executing that judgment against individuals subject to its jurisdiction. Thus it was that Saddam Hussein joined a long and growing list of persons of exalted rank executed after the invocation of a formal process of judgment by self-constituted peers, based on the substantive norms made applicable to those holding the highest offices of state. And like Charles I of England, Louis XVI of France, the Emperor Maximillian of Mexico, and the leaders of the defeated or discredited regimes in Germany, Japan, Cambodia, Rwanda and Serbia in the 20th century, Saddam Hussein went to his grave challenging the jurisdiction of the tribunal that condemned him and the law on the basis of which he was judged. The execution makes it less likely that future leaders will escape formal global judgment (as, for example, Augusto Pinochet of Chile), or summary execution, the traditional method for dealing with deposed or defeated leaders (as, for example, Nicholas II of Russia).
What are some of the characteristics of this rising ‘higher law’ of individual responsibility for state acts? Its origins may be traced to the English Magna Carta. (Corwin, Edward S. 1955. The "Higher Law" Background of American Constitutional Law. Ithaca, NY: Cornell University Press). Magna Carta is usually recalled (though rarely read) as memorializing what ultimately became bound up in modern notions of due process. And indeed, the emerging ‘higher law’ of political conduct incorporates the notions of judgment by peers at its core. Peerage, of course, has changed dramatically since the early thirteenth century in England. And indeed, it can be a contextually based notion—Saddam Hussein’s peers, like those of Charles I and Louis XVI, were the people of Iraq as representatives of the ultimate holders of Iraqi sovereignty. On the other hand, the peers of Slobodan Milosevic of Serbia might well be the representatives of those states required to go to war to deprive him of leadership. But Magna Carta is first a document memorializing feudal sensibilities. Those feudal notions of hierarchy and mutual obligation have survived to reappear as part of the emerging substantive law of political leadership. And indeed, feudal notions, rather than post Westphalian notions of state, make it possible to assert a ‘higher law,’ a law above the state and the individuals vested with authority within its apparatus. Modern nation-states today stand in the shoes of the barons of England, but barons without a king. They appear to have chosen a set of mechanisms to regulate themselves on the basis of the custom of nations, some of which will be memorialized and other parts of which will develop as communal notions of appropriate conduct evolve.
Though there might be a temptation to focus on the process elements of the emerging systems for the judgment and punishment of government officials, the constitutional element is much more consequential for the future. The trial and execution of Saddam Hussein furthered what the trial of Slobodan Milosevic failed to accomplish (because of the fortuitous death of the defendant)—the deepening of a global customary law of nations. That is, the trial and execution of Saddam Hussein represents an application of the principle that states, their apparatus and the individuals with authority thereunder (from whatever source) are subject to a higher law than the constitutional law of the state they represent. The execution of Saddam Hussein suggests that even the people of a sovereign state may not vest their representatives with authority that exceeds certain standards of conduct, and that the international community may intervene to limit those excesses. But the methodology of limitation must involve a judgment of peers, and that judgment must proceed on the basis of a process that compels the accusers to amass a certain quantum of evidence of group standard violation (for the usual reasons, to protect against arbitrary judgment, to draw a moral useful in guiding future conduct, and for the protection of other peers) and for the accused peer to state his case and to submit to the judgment of the community. By the submission of the accused (and in the ‘best’ of cases, by the acquiescence in his own death), of course, the bonds of community are strengthened by bonds of blood (an old fashioned but powerful symbolic device). To ensure that all of this works properly a new class of global actors has begun to emerge, a class that mimics that bench and bar established by the time of the Tudor monarchs of England. These actors consist of global jurists and lawyers, tied to any number of national, international and non-governmental entities. In their hands, the customary law will acquire a life of its own in a global system which though uncomfortable for any single nation may provide the necessary level of mutual security to make it at least grudgingly respected. Recall that it was in the hands of one of the most powerful opponents of a global governance system, the United States, that the trial and execution of Saddam Hussein was allowed to proceed to its conclusion.
As much as representatives of post Westphalian civil law states may long for it, the source of this ‘higher law’ is custom (see, e.g., Anne Peters. 2005. "Global Constitutionalism Revisited." International Legal Theory 11:39-67 who suggests that "If we accept the hermeneutic premise that a naked meaning of a text, independent of the reader does not exist, then the reconstruction of some portions of international law is just an ordinary hermeneutic exercise." Id., at 40). There is no constitution of a global society, nor is such a constitution likely as powerful conservative states, like the United States and the People’s Republic of China, oppose such an institutionalization. And no amount of investment in the theoretical assumptions of the past or disdain for the compulsory nature of formally constituted international law as traditionally conceived can undo a process long in the making (see, e.g., Jed Rubenfeld. 2003. "The Two World Orders." The Wilson Quarterly 27:28). The structure of this new "law of laws" is NOT international law as we have come to understand it. This ‘higher law’ is meant to serve as the customary constitution of the global political community, to which national law, national constitutions, AND formal international law (enacted by the traditional forms of international statutes—treaties and the like) is bound. Its contours are not yet well understood—but that is the nature of customary law. It may not be bounded by the official actions of princes in their modern manifestation—the state, the organs of public international community or other public law actors, try as these might to manage the process of development. (cf., Alcott, Philip. 2002. The Health of Nations: Society and Law Beyond the State. Cambridge: Cambridge University Press).