Monday, November 06, 2006

On the Conviction of Sadam Hussein

So, Saddam Hussein has been convicted and sentenced to death by hanging. As reported in Yahoo News today

”The nine-month trial had inflamed the nation, and three defense lawyers and a witness were murdered in the course of its 39 sessions.

"Long live the people and death to their enemies. Long live the glorious nation, and death to its enemies!" Saddam cried out after the verdict, before bailiffs took his arms and walked the once all-powerful leader from the courtroom. There was a hint of a smile on Saddam's face.

With justice for Saddam's crimes done, the U.S.-backed Shiite prime minister called for reconciliation and delivered the most eloquent speech of his five months in office.

"The verdict placed on the heads of the former regime does not represent a verdict for any one person. It is a verdict on a whole dark era that was unmatched in Iraq's history," Nouri al-Maliki said.” Steven R. Hurst and Hamza Hendawi, “Saddam Co-Defendants Sentenced to Hang, Yahoo News, Nov. 5, 2006

I don’t write about the trial or the verdict, other than to say that Saddam Hussein has joined a long list of monarchs condemned to death after public proceedings in the form of a trail—Charles I of England, Louis XVI of France, and the defeated leaders of Nazi Germany and militarist Japan, and the political enemies of Marxist Leninist Regimes (especially under Stalin in the 1930s and Mao Zedong in the 1960s). In each case, the trails were meant as theatre. They served to discredit the ancien regime and legitimate the process of regime change. They also served to strip authority from the body of the representative of the prior political order. Then, with that representative reduced to mere man, the man—and not the state—is condemned as mere criminal; he suffers the same penalties as other bandits and outlaws. The state is preserved and punishment for its sins inflicted on the body of its proxy. The state is now reborn. In the case of the Marxist Leninist Regimes they served either counter revolutionary purposes or as an element of "cold" civil war.

All of this is necessary I suppose, as humans indulge in the ceremonials of legitimacy and the passage of power. The Yahoo News report quoted above captures this aspect of the trial and conviction quite well. The new political order sits in judgment on the old. The old order is represented by proxy. Saddam Hussein becomes the old order. But he is also less. He is merely a man, no longer the representative of the state. He sits as a thief, a usurper of state power. Now just a man, his actions, which until his removal were also the actions of the state (and thus that of the people), are now just the criminal acts of an individual. The tension between Saddam’s physical and symbolic bodies is nicely framed by the quotations by Saddam (still the head of state) and that of Nouri al-Maliki, condemning the man as well as the superseded regime.

But it should be clear that the source of these ceremonials, these rituals of passage, have only the most tenuous relation to law. To the extent this might be considered law, it is the law of state passage, of the passage of sovereignty, of revolution—stripped of its violence. We live in an age of managed conflict—there is no reason to treat revolution differently from other forms of political warfare. To legitimate the law of revolution, a template is necessary. The West has, over the past four centuries chosen the criminal law as its template. And why not? The criminal law is at the heart of the legitimate power of the state. It represents the legitimate use of violence. It is through the criminal law that the people assert self discipline. There is no better way to de-legitimate the old regime and its head than by the deployment of the criminal law. The symbolism is powerful and serves the successor regime well.

But more importantly, perhaps, it spares the state from looking too closely into its own complicity in the acts of the old once legitimate state. Saddam serves as a great mediating object. Responsibility is imposed on the leader, who perversely, is now stripped of the legitimacy of leadership. The state and its citizens are free to indulge the idea that they were either stripped of any power of resistance (at least prior to the revolutionary events leading to change) or that they were the innocent victims of the ferocious criminality of the leaders of the prior regime. As a consequence, the state remains intact and can, under its new leadership, pick up where it left off. Power has shifted, and the normative basis of the social order may have changed. A little de-Baathification and the nation is ready to rock and roll again.

But this has little to do with law. We have taken the language of law and now contorted it for another purpose—the management of politics. This is not necessarily a bad thing. But it has its dangers. Conflating the ordinary approaches of the criminal law to the extraordinary circumstances of revolutionary change (including changes in the aftermath of war) reduces the enormity of the actions subject to trial (Saddam Hussein was convicted of multiple murders) and makes every criminal activity potentially political. But in a political community founded on principles of democratic governance might find such a conflation uncomfortable. The United States is already experiencing the difficulty—where it has become increasing common, for example, to charge any threat (between spouses, on a school yard, etc) as making a terroristic threat.

Yet we have institutionalized this approach in domestic legal orders and now in the system of the International Criminal Court of the Rome Statute. With the institutionalization of conflict management, including the management of revolution and war, the world will become a very different place. We have a sense of the new criminal law of politics and war in the trial and conviction of Saddam Hussein. We may see the rise of a new political law of crime as well. Only time will tell whether this new form of conflict management is more successful than the one it seeks to replace.

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