An Iraqi appeals court upheld Saddam’s death sentence, and the AP reports that he has been handed over to the Iraqi government for execution within the next 24 hours. The inexorable slide toward execution for Saddam Hussein, and irrelevance and disgrace for George Bush, proceeds apace. Saddam’s guilty verdict and certain execution will neither result in vindication for Bush’s policies nor "open the doors of hell" in Iraq, as Saddam’s defense attorneys claim. The bombing of Samarra’s golden shrine blew those doors off their hinges nearly a year ago, and Bush’s ability to impact events evaporates more each day.
I could write a scathing editorial about US manipulation of Saddam’s trial, but it’s been done. I could write a diary on the horrors and mechanisms of the death penalty, but that's been done. Rather, this diary is an attempt to understand the trial from the perspective of one of the appeals court judges. This is a biased perspective to be sure, but there are no neutral perspectives in Iraq, at least when it comes to Saddam. A few months ago, I went to Baghdad with a friend who has an interest in transitional justice and many contacts with Iraqi and US officials. While I was there, I met with Taha Baban, one of the judges who just ruled on Saddam’s appeal. This diary is intended to present Saddam’s trial from his perspective, examine his biases and background, and to comment a little on the uses and abuses of Iraq’s trial of the century. This diary is based on notes I took last August.
The half empty Iraqi Airlines jet landed at Baghdad International Airport, and the heat hit us like a hammer when we stepped out onto the tarmac. The temperature would rise to 118 degrees later that day, and the low altitude and dense, dust-laden air holds the heat in at night like a blanket. Baghdad might be the hottest capital city on earth. How people survive a summer without electricity is beyond my comprehension.
The terminal was cooler. My friend is an academic who looks from a distance as if he could be Iraqi and is shockingly unconcerned with security. All it takes to get into trouble here is one person with malevolent intent and a cell phone, but my friend claimed his luggage, and strode out in the crowd to look for his contacts as if he was at JFK. I stood out of sight behind a column with a fluorescent sign that said "State Company for Delegates Transport (Rent Car Office)". US based relief workers like me do not have the same access and security benefits extended to military contractors or private security firms. This is both a curse and a blessing. I could not function if I had to operate under the same constraints as a diplomat or contractor. On the other hand, access to these benefits can occasionally be a good thing, as the trip from the airport to the international zone is quite unnerving. We arranged protection through a political advisor to President Talabani, and rode in a ministry vehicle followed by a police car with sirens blaring. Soon were at the gates of the International Zone, a.k.a. the Green Zone. We checked in to the al-Rashid Hotel, which used to feature a mosaic of the first President Bush on the floor, placed so everyone had to step on it when entering the hotel. The mosaic was gone, along with most of the business. Some tribal leaders were there for a meeting with al-Maliki on security, but we requested cheap rooms and were the only guests on the entire fourth floor. Early in the war, a rocket or tank shell punctured the room down the hall. Hot air poured in past the bent rebar and shattered concrete, and thin layer of dust covered every surface. The hotel is under new and austere management, and the posters of Imam Ali hung discretely in the back offices are yet another sign of the winner-take-all mentality in Baghdad.
Judge Baban came by as evening fell. He’s a thin man in his mid-70’s, dressed formally in a suit and a tie. He vaguely resembles Mark Twain, with his big mane of white hair and large Victorian moustache. The judge has a similarly sly sense of humor and asked the hotel manager for a shot of whiskey. When the hotel manager frowned and said they did not serve alcohol, the judge said "We’ll be in hell soon enough, why you make us go out and suffer the heat now?" The manager did not laugh.
We climbed into the Judge’s old white Fiat and drove around the Green Zone in search of the Blue Star restaurant. In 2004, the IZ was vibrant and filled with people, and there was a sense of intense - if pointless - activity. There were plenty of Iraqi-run businesses. Then the US issued orders forbidding official personnel from going to local restaurants. It was never clear whether this was a precaution against suicide bombings or food poisoning, but to the Iraqis who work and live in the Green Zone, it is one more grievance, one more insult, one more deliberate act to cut them off from their livelihoods.
Now, nobody was walking around and the streets were nearly deserted. We passed a few US soldiers running to stay in shape. It’s so hot that plants were turning yellow, not from lack of water, but from cell damage. A group of Humvees came up behind us, equipped with improvised "sweepers" designed to set off detonating mechanisms a fraction of a second early. They were either going out on patrol or returning. Soldiers flashed their headlights and gesticulated for us to get out of the way, but the judge kept driving his fragile little car down the middle of the road. This made me nervous; you either want to be riding with the US soldiers, or you want to be very far away from them. You never want to be a bystander, and you especially don’t want to be a passenger in a strange car blocking their movement. The humvees speed past us.
We look in vain for the Blue Star restaurant, but can’t find it. We settle instead for Chinese. The last Chinese restaurant in Baghdad is sandwiched in between two hospitals, very near to the main US embassy. It’s almost impossible to find the narrow walkway between the concrete blast walls, and we would have missed it except for a small black spray-painted arrow. The walkway is about a yard wide, and we walk over broken concrete, wires, trash and chicken bones, back for about 50 meters, until the walls open out on a small grassy courtyard with date palms and plastic lawn furniture. The clientele includes the odd relief worker, journalist or Iraqi government official, and those few embassy staff who, through burnout or rebellion, no longer feel constrained by rules.
We sit down and a boy of about ten comes up to the table. The judge asks him what sort of Chinese food they have, and the boy says "the cook left last week". The judge laughs. "I never taste Chinese food for 70 years and now the cook quit?" The boy brings us kebab and beers instead.
We start talking about the trials. The judge sees the trials as sort of an exegesis of the mountains of captured documents, as a way of systematically and chronologically exposing the two worst decades of Ba’ath rule for Iraq and the world. The first trial on the Dujail massacre is intended to be the slam-dunk trial, the one with the solid documentary evidence linking Saddam with specific killings. The second trial is to focus on the Anfal campaign against the Kurds (this trial is currently in progress). The judge felt that a third trial should be held to address the abuses against the Marsh Arabs in 1991. He believes and hopes that there will be three trials in total, ordered to provide a structured exposition of the gradually increasing scale and severity of Ba’athist violence. This was certainly the way the trials were at first envisioned back in 2003, when everyone felt that there was nearly unlimited time and resources to investigate and prepare the cases, and US and UK advisors created the Regime Crimes Liaison Office. Now, there’s pressure from everyone – from the US, from the political parties, from the local media – to speed things up and be done with it. This annoys the judge. "What’s the hurry? Saddam is finished. He can never rule again."
So, five months later, what is driving the rush? Is it the State of the Union Address or is this event timed to divert attention from Bush’s plan for escalation? Probably. However, there are internal Iraqi forces at play, too. Once Saddam is transferred out of US custody, his life will be measured in hours, not days. Conspiracy theories thrive in Baghdad’s fetid atmosphere, and more than a few Iraqis want Saddam dead to prevent any possibility, however unrealistic, of the US reinstating him. (Judge Baban laughed at that suggestion.) The Shia’ political parties in particular feel they will derive legitimacy from executing Saddam. Some feel that killing him will demoralize the insurgents, while others suffered so much under the Ba’ath that they just want to kill him whether or not it incites the insurgency. There is anther internal reason unrelated to US pressure. Saddam is on trial along with other senior officials for ordering the use of poison gas and mass disappearances of Kurdish civilians in the "Anfal" campaign. Talabani’s Kurdish constituency overwhelmingly favors delaying the execution until after the current trial, which rightly or wrongly, they view as the only way to get the Arab world’s media to pay any attention to what they went through in the 1980’s. On the other hand, Shia’ politicians may well see a quick execution as a way of sending a signal that they are in charge, and they are tired of caving in to constant Kurdish demands. With so many reasons to kill him off and so few reasons to keep him alive, Judge Baban feared back in August that politics will cut the trials short.
We ask the judge for his opinion on the death penalty. Judge Baban may be a hanging judge, but he is a disarmingly cheerful and pleasant one. He is against the death penalty for all but "regime crimes", but says that both Iraqi culture and the traditional interpretation of Islam make him a distinct minority, and that outright abolition will be difficult. His perspective is similar to that of Jalal Talabani, who refuses to sign death warrants but delegated his power to vice president Abd al-Mahdi, thus permitting the executions of about 40 convicted "terrorists" over the last year. Judge Baban refuses to be pinned down on whether he will uphold the death penalty, but he’s the most liberal judge on the panel and it’s clear that Saddam has no real chance.
Judges in Iraq either suffered under Saddam or worked for him, so I ask Judge Baban whether a neutral panel of judges can even be found in Iraq. I ask him whether his own personal history will have a bearing on the appeals process. "Everybody in this country has scars, and nobody is neutral, but I shall do my best to separate my emotions from my job and follow the law faithfully." This is a politician’s answer, and Judge Baban’s objectivity is particularly suspect given his history in the opposition. His ancestor founded the city of Suleymaniya in 1784, and for the next fifty years, they ruled a quasi-independent Kurdish emirate that stretched from near the present day border of Turkey to within a hundred miles of Baghdad. He went to college, became a socialist and a friend of Jalal Talabani, and joined the Kurdish movement in 1963, after law school. He spent the next five decades oscillating between the Iraqi courts during peace, and working as Talabani’s legal advisor in the mountains during war. Remarkably, he was arrested only once and proved his legal skills by talking his way out of jail. Judge Baban is not a torture survivor, which makes him a slightly more objective choice than Saddam’s trial judge - who was a Kurdish torture survivor from Hallabja.
We stop talking. The sweat pours off us in rivulets and the first round of beer bottles are empty. The judge calls the boy and says in Arabic, "Beloved little one, bring us more beers". One is plenty for me – I don’t much like beer, but appreciate the irony of being in Iraq and still having to resist peer pressure to drink alcohol.
I ask him about whether he thinks Saddam’s trial will be perceived as legitimate in the Arab world outside of Iraq, and whether it will have any effect on the Arab street. I suspect that his ethnicity and his background prevent him from appreciating the extent to which Saddam is still perceived as a hero and the trial a farce. He concedes that the occupation undermines the legitimacy of the trial, but the notion that this is a show trial put on by the Americans strikes him as absurd, even given the very considerable US logistic, research and financial support. This is a major disconnect. Indeed, Saddam impacted the lives of individual Iraqis like Judge Baban so deeply that it is difficult for them to understand that Saddam was ever popular, or remains popular, among a section of the Arab street. The trial was supposed to address this issue, to show Saddam for what he was, to de-legitimize him before the rest of the world. One of the Judge’s main regrets is that the trial is failing with respect to this goal, and that Saddam remains as popular as ever outside of Iraq. Those on trial will be handed over by the Americans and executed by an Iraqi government largely funded and supported by the U.S. This stark reality appears to the Arab world as a form of victor’s justice, as if judges like Taha Baban are simply toying with the defendants the way a cat plays with its prey. I am convinced the reality is more complicated than this, that Saddam was always more popular among those who didn’t have to live with him, but the PR battle in the Arab world is lost.
I ask the judge if executing people, given the current environment, loses meaning and just becomes additional gratuitous violence. Do official killings merely add to the already overwhelming death and suffering in Iraq, and will a few more additional deaths do anything to assuage the pain Iraq has suffered for so long? His short answer seems to be that vengeance can’t be entirely prevented in Iraq, but it can be minimized and systematized. He wants the trials to show another way of managing the vast trauma people have been through, and suggests that executing some might make long jail sentences for others more palatable. "Saddam would be treated in ‘Amara or in Kurdistan for that matter, exactly as he treated the people there. The people would pull him apart with their bare hands if they were able. The people need to see a process continue, to understand that it is not for them to take their justice directly by their own hand."
In a way, I think Judge Baban genuinely sees the trial as a way to put brackets on the violence of the Saddam era, to make it into something manageable and understandable, to show it in its horror but also its banality, it’s coarse ignorance, and its futility. The play will end the only way it can, by deaths of the defendants. Three years ago, his hope was that this ending would also contribute toward the end of violence in general. Now the Judge has come to see Saddam as a product of Iraqi culture, as a symptom of a sickness, rather than the cause. The sickness remains, and this land – which has always been known for its stark contrast between sublime art and science on the one hand, and extreme brutality on the other, seems to be reliving its tragic history again. Perhaps culture plays a part, but colonialism, arbitrary boundaries, and the monopoly of oil wealth by a small clique played no small part too.
The conversation turns into a meditation on violence. It used to be that the violence in Iraq was more predictable, more focused, equally cruel but engineered with the same deliberate precision and central planning that constructed vast monuments that dot the landscape of the Green Zone. The sense of overwhelming fear that Saddam once inspired has receded, but something even worse now confronts everyone – the diffusion of the tremendous violence and rage of this society into millions of separate, disconnected incidents, by thousands of actors. The violence is fractured and spreading like a contagion, as bad or worse than before, but far less predictable. The uncertainty about who is behind these incidents, the fear in each community that the other community will gain absolute control and inflict another 30 years of sorrow and loss on them, the sense that in this horrible violence some find opportunity and that the worst will rise, not the best – all of this inspires a sense of dread. It is this unruly, unregulated violence that frightens the Judge and makes him worried for the future. "I cannot understand how the insurgents and militias are so devoid of human pity". He is disgusted by the barbarism. It seems like splitting hairs as I write this here, but putting a rope around the neck of a convicted official and hanging him seemed to the judge as a very different matter than the random ethnic and sectarian violence on the street, to the point that he was unable to really compare the two. He slides back into the usual refrain, heard so often in the north – in which "the Arabs" themselves are solely responsible for the current level of violence. "People say the Kurdistan government is strong, but I say it is weak! The people are peaceful and that is why the government works." I protest this as an oversimplification. "The Kurds had their own civil war in ’96, remember? Maybe Kurdistan is peaceful now because you had 15 years to establish a government. I don’t think you can blame this on being Arab". He reluctantly agrees.
As we talk, the conversation interrupted frequently by helicopters landing nearby. They fly in without any lights at all, like big insects zooming toward the floodlights of the landing zone. Sweat pours off of me. The air is dead still, except when the helicopters land – their rotors move so much air that a breeze stirs after they pass. I feel guilty for enjoying it. We are right next to the trauma center, and these helicopters are bearing wounded American and Iraqi soldiers. I have no idea if something happened or if it was just a routine night, but at least a dozen helicopters landed while we talked.
I ask the judge what will happen when the Americans leave.
"There will be a massacre."
"Yugoslavia is the soup!"
In other words, Yugoslavia is only the starter before the main dish; that Iraq will dwarf Yugoslavia in violence. I’m inclined to agree with him, although it’s far from clear that the US can prevent this from happening. He is concerned not that Iraq split into two or three pieces, but into a thousand. He fears that the worst will inexorably rise to the top, and that this fatal cycle of violence will only result in another version of Saddam.
As the evening ends, a sense of melancholy pervades the atmosphere. The judge is lonely. His wife died ten years ago, he is an old man, and his children are grown. They do not visit him in Baghdad because it is too dangerous. Another judge lost his only son to kidnappers, who collected a ransom but killed the young man anyway. He stays alone in a small apartment in the Green Zone provided to him by the Iraqi government, and will return permanently to Suleymaniya once the appeals process is concluded. He doubts he will see Baghdad again.
I finished my business and left Baghdad a few days later on a flight that was packed with people. I pushed my way through the mob and shoved an excessively polite South Korean military attaché through the gate in front of me, eager that neither one of us be left alone in the terminal at night. As I write this, I wonder whether Judge Baban has already pushed his own way through the queue in Baghdad Airport and joined the thousands of others leaving the city.
Postscript, five months later: Although I can’t quite bring myself to oppose Saddam’s execution, I can't support it either and take no solace from what will take place shortly in Baghdad. My own exposure to violence is minimal compared to most Iraqis, but I’m still unable to come to terms with what I saw in 1991, when I first came to Iraq - the caked blood on the basement floors of the security buildings, the terrified population, the thousands of destroyed villages, the man covered by cigarette burns over every inch of his body. I cannot feel much empathy for Saddam or even quite bring myself to recognize our shared humanity. He leaves me feeling deadened inside, and the actual fear that he once inspired – which was quite real in the early 90’s – has dissipated. The anger isn’t even there. Perhaps someday I will feel the same about Bush. Perhaps the anger will be gone, but not the regret for what has been lost, or the sadness that cruelty and ignorance so often prevail.