Saddam’s trial will begin next week, according to news reports, and will even be televised. I will, from time to time, post comments on this trial, as it unfolds. In an op-ed published two weeks ago, I argued that one danger posed by the trial is that if the judges interpret the law broadly, former Baathists, and those complicit in their crimes, will fear that they will be arrested next, and will therefore be driven into the arms of the insurgents (or more deeply into their arms, as the case may be). The decision about who to punish and who to amnesty is really a political, not a legal, decision, and the court should act cautiously by applying the law as narrowly as possible, since it seems likely that any successful constitutional settlement will not involve the eventual incarceration of a large number of Baathists.
Today, I want to discuss Saddam’s strategy. We don’t know what Saddam wants to accomplish: does he want to be a hero or martyr? Does he want to justify his reign? Does he hope to stir up such chaos in Iraq so that America will leave and he will be released? Does he think that he can persuade the judges to declare his innocence? We don’t know the answers to these questions, but it is nonetheless useful to describe Saddam’s two main options – options that are faced by every defendant in a political trial, whether a national leader or a local anarchist. (I discuss these issues in more detail in an academic paper.)
The main decision faced by a defendant such as Saddam is whether to cooperate with the tribunal or to refuse to cooperate. Each approach has advantages and disadvantages.
Saddam can refuse to cooperate on the ground that the tribunal is illegitimate. The judges are the stooges of the Americans; the Americans have no authority to try and punish Saddam. Their presence in Iraq is the result of an illegal war; the trial is a pure example of victor’s justice. The advantage of this strategy is that, if it succeeds, Saddam will lose legally but win politically. If the trial is illegitimate, then his execution is a murder, an exercise of raw power by a state that claims to be acting for the sake of international law. Small consolation, perhaps, but probably the best that he can hope for.
The problem with this strategy is that it does not permit Saddam to mount a defense of his regime. The reason is that if the tribunal is illegitimate, and will make a political judgment, then a legal defense is pointless. Saddam should refuse to speak. Conversely, if Saddam mounts a legal defense, he is implicitly acknowledging the legal authority of the tribunal. But Saddam might want to make such a defense, as he has a powerful one.
The defense would go like this. Recent events prove that a country like Iraq needs a powerful leader in order to prevent rival religious factions from killing each other. Iraq had harsh criminal laws, but there is no international law against harsh criminal laws – look at America’s and China’s overflowing prisons, or Saudi Arabia’s criminal code. Iraq had an authoritarian regime, but there is no law against authoritarian regimes – look at China, Pakistan, and Egypt. Iraqi law did not apply to Saddam himself, and thus cannot be used against him. There is supposedly a body of international criminal law that prohibits genocide and other crimes against humanity, but this body of law is rarely enforced, and when it is, it is enforced selectively against weak or conquered countries. Iraq never consented to this law, and the U.S. has no authority to enforce it in Iraq.
The advantage of this defense is that it might convince some people, or even many people, especially those living in Iraq, that a place like Iraq needs a strong leader, and that means tolerating the excesses of such a leader as well as enjoying the security that he brings. The disadvantage of this defense is that it implicitly acknowledges the legitimacy of the tribunal, and by extension the American occupation.
We will see what Saddam and his team of lawyers decide to do. History suggests that uncooperative defendants have a better chance than cooperative defendants in trials like these. Usually, defendants choose a middle path of addressing arguments to the tribunal, but making political rather than legal arguments, and constantly rejecting the authority of the tribunal. This leads to a circus-like struggle between judges who try to bar defendants from making political arguments and defendants who accuse the judges of running a show trial. Defendants usually go down in defeat, but they often have the satisfaction of bringing down the tribunal with them.