All The More Reason

From a purely practical point of view, the long-anticipated snapping of Saddam Hussein’s spinal column is unlikely to cause serious unrest in his former fiefdom. Nor, however, is it likely to result in a significant tempering of the inter-communal violence and terrorism which has befallen the country. However, from the exalted altitude at which one views matters of justice, the sentence appears rather more problematic. This is the passing of a death sentence on a man who passed countless such sentences on the Iraqi people without the due process afforded to him, and who held the whole Iraqi population in a state of perpetual incarceration without any prospect of parole. Yet it leaves a curious taste in the mouth: overwhelmingly sweet, but with a peculiarly tart aftertaste.

The first cause for bitterness is the fact that Saddam, it appears, will not face trial for his ‘Anfal’ campaign against Kurdish Iraqis in the 1980s; a concerted attempt to eradicate a whole people. Although the evidence for his complicity in this genocidal atrocity is quite overwhelming, in the interests of justice, the development of the jurisprudence relating to such crimes against humanity and, most importantly, for the peace of mind of those Kurds left behind, a formal recognition of his guilt would be preferable

Those of us who support Iraqis struggling, against the odds, to build a democratic, federal republic atop the stinking quagmire of corruption and indiscriminate cruelty left by its soon-to-be-departed steward must also pause before giving our support to this sentence for a more fundamental reason. The death penalty is wrong. It is as wrong in Texas as it is in Tikrit; as barbaric in Rangoon as it is in
Riyadh . The right to life is a universal value, and cultural relativists cannot be permitted to whittle it down to size in order to ease its placement into a particular context.

Each and every argument in favour of the death penalty has been thoroughly discredited. The threat of state-sponsored murder has no appreciable effect on crime rates. As Cesare Beccaria put it, as long ago as 1786, ‘human minds harden, adjusting themselves, like fluids, to the level of objects round them’. This was true in 18^th century
Britain, where the fat and swelling sheaf of capital statutes that constituted the ‘Bloody Penal Code’ simply expanded to accommodate the expansion in crime. It is no less true today in the United States, where murder rates in
Oklahoma actually increased after the 25 year moratorium on execution was lifted in 1991.

Similarly, sentimental appeals to ‘think about the victims’ usually amount to little more than a self-serving and cynical ventriloquism of these very victims’ emotions. Even when those emotions are real, the idea that the right to life should be forfeited and rendered to society as a blood-price worth paying for the achievement of a spurious form of ‘catharsis’ is morally unacceptable.

In both practical and ethical terms therefore, the death penalty is a dead duck. So why does news of Saddam’s one way ticket to the gallows elicit a more equivocal sense of outrage? The most obvious explanation is the tussle between the heart and the head: the visceral sense that the sheer magnitude of Saddam’s crimes against humanity merits something more than mere imprisonment. This alone though will not do. In every other context we accept that the weight of depravity attached to any crime is insufficient to tip the scales in favour of the death penalty. So, again, why should the case of Saddam give us any greater cause for concern? It is in a closer examination of the nature of the offence that we may begin to find our answer.

The uniquely wicked, mechanized destruction of European Jewry was the miserable catalyst for the creation of the peculiar category of ‘crimes against humanity’ under which the criminal acts of Saddam undoubtedly falls.
Nuremberg banished forever the idea that crimes committed in the name of ‘the State’ were somehow carried out in abstracto, rather than by named individuals in a chain of causation, who ought to be held accountable for their actions. By removing this immunity, international law sought to assimilate these ‘political crimes’ into the same class as those committed by the common criminal. However, is there not a sense in which these crimes against humanity are, by their very nature, so heinous that they belong in a class not below, not on a par with, but above that of ‘ordinary’ crimes?

The labelling of the offence is more significant than it may at first appear. As Hannah Arendt points out in her absorbing study of the trial of Adolf Eichmann, such crimes are not just crimes against humanity in the concrete sense of the word, but also against the abstract notion that this word represents. They are crimes against what it means to be human. Allowing them to go unpunished is impossible if we are to have any respect for human dignity. Likewise, the choice of sanction must recognise the unique nature of the offence. When a criminal kills his victim, ‘catharsis’ is not sufficient as a justification for the death penalty. However, when the victim is an entire nation; when it is the whole of humanity, the same standards of justice are surely inappropriate to achieve ‘closure’. The benchmark against which we would normally judge criminal sanctions is so thoroughly inadequate that we do not simply require a new mark to be chalked up; we need a new bench.

Saddam was the self-proclaimed personification of a genocidal, psychopathic state: l’Etat, c’etait lui. As such, his fate is indistinguishable from that of his regime. His death is the final and necessary step in the process of de-Ba’athification. The ultimate sanction for the ultimate crime.

 Michael P