Guilty of what?

By Prem Shankar Jha | 20 Oct 2005

Had Saddam Hussein been a private citizen of Iraq, I would not have hesitated for an instant in asking that he be hanged for the crimes he has committed. In 1961 the man was a hired assassin for the CIA, who narrowly failed to kill the then Iraqi President, Gen Abdul Karim Kassem. The way in which he ordered the execution of 60 of his closest associates in the Baath party in 1979, immediately after he came to power, has become part of the folklore of Iraq. And I personally heard a vivid account of the massacre at Dujail in 1990 from an Indian railway engineer who had worked in Iraq in the '80s.

But Saddam Hussein was not an ordinary citizen of Iraq. He was its Head of State. And this raises several issues that can not simply be swept aside because they do not fit the grand plan of an imperial power that aspires to rule the world.

In any country, the purpose, perhaps the overriding purpose, of the state is to create a stable and secure environment for its citizens to live in. This requires it to use both coercion and accommodation, or cooptation with different groups, to maintain a political equilibrium. The exact form of coercion and accommodation, and the balance between them has differed from epoch to epoch and country to country. But the use of coercive power by the state against the individual has never been absent. It is in fact an essential attribute of the state itself.

In a well governed and stable state, its use of force is constrained by law. In an ideal state, that law is not handed down to the people by the ruler but decided by the people themselves. Democracy, however fractured or creaky it may be in some countries, comes close to that ideal. But democracy itself grew out of a fortuitous balance of power between the crown, the landed aristocracy and a powerful new mercantile elite in a single country, England, that forced all three to cooperate in governance for the nation to survive. But it took 140 years of mounting strife, a civil war and the beheading of a king to establish that all three needed each other.

In the three hundred and thirty nine years since that happened, democracy has been adopted by more than a hundred and twenty countries but taken firm root in barely two dozen. In the 90 states that joined the UN after 1951, not even half a dozen have managed to maintain unbroken democratic rule. Even India, which is counted among them, suffered a temporary lapse during the Emergency.

In the rest of the world, authoritarianism has been the norm rather than the exception. And correspondingly, the use of force by the state against its citizens has been less bridled. When we judge the heads of states of these countries, the principle of equality before the law demands that we apply a common set of criteria to judge whether the use of force was excessive or not.

That is not all. We also need to ask what purpose the use of force was designed to serve. Was it pure personal vendetta or was it intended to restore and maintain order, so that ordinary citizens who were not challenging the state or government could continue to live secure lives. Force used for the second purpose, even if excessive, needs to be judged differently from force used for the first.

Finally, we need to ask whether trying and executing a former Head of State will enhance or cripple the capacity of the existing government of that state to meet its central obligation to its people. In short, will Saddam's trial and execution bring peace or civil war to Iraq?

Judged by these yardsticks, the case against Saddam, especially over Dujail, begins to look a great deal weaker than it sounds. I believe that Saddam Hussein does need to be tried. But he must be tried by a dispassionate international court, like the International Court of Justice or the newly established International War Crimes Tribunal, that is capable of taking all of the above complex issues into account when giving its verdict. The present kangaroo court, cowering behind a wall of American steel, will neither render justice nor bring peace to Iraq.

To begin with, Saddam's use of force cannot be judged by the yardsticks of a democracy because Iraq not only was not one, but was never given the chance to be one. It was carved out of three Ottoman provinces after the First World War as one of three protectorates to be ruled by Britain and France. The arbitrary drawing of borders where previously there had been none, left Iraq with parts of three major ethnic and religious groups. Since this happened in the heyday of the nation state, any assertion of ethnic consciousness in these groups had to be crushed. Iraqi regimes therefore had no option but to be authoritarian and violent.

This did not mean that Saddam had no option but to be the brutal ruler that he was. It meant that only brutal men like Saddam, who did not shrink from using excessive force in the first place, could rise to the top in Iraq. In short, Saddam did not create his Iraq; Iraq created Saddam.

Dujail is a classic case of the dilemma that authoritarian power in an extremely fragile state faces. Iraq was at war with Iran in 1982, a war that the US and UK were not only supporting but which the US had, in all probability, instigated Iraq to launch. Shia men from the village planned an ambush but failed to kill him. They had to be punished but who, in a shia village would bear witness against his own kin for a Baathist state that had declared war on Khomeini's Iran?

Saddam had only two choices - to ignore the attack or impose a collective punishment. In a violent state like Iraq, then at war, he chose the latter course. Killing 143 persons was excessive but was it a crime against humanity? Can we compare this with the holocaust, the genocide against the Armenians in Turkey or the genocide against the Tutsi in Rwanda? Do we not trivialise the very notion of a crime against humanity by applying it to what happened in Dujail?

If we apply the principle of equality before the law then the charge becomes even less tenable. Collective punishment was common not only in some 'barbarian' countries, but was extensively used by the British in India. They reached a height when entire villages were slaughtered after the 1857 revolt. Should the British government not be held to account ? There is, after all, no statute of limitation on murder. As for the US and its friends in Latin America and Asia, the less said the better!

The Iraqi government claims to have another 11 cases against Saddam. The fact that they started with Dujail shows that these may be even weaker. One — perhaps the worst — is, in any case, a complete fabrication by Washington. This is Saddam's gassing of the Kurds of Halabja in March 1988.

Since May 1990 the American government has been in possession of a US army report on the effect of chemical warfare on troops, which shows conclusively that the majority of the Kurds who were killed in Halabja and elsewhere fell victim to cyanide gas, which was being used by the Iranians, and not mustard gas which is what the Iraqi army was using.

This was revealed for the third time by the author of the report, Steven Pelletiere, in an article in the New York Times on January 31, 2003. But like a million other inconvenient facts this too has been buried deep by the Bush administration and the supposedly independent international media.

The case for taking Saddam's trial out of Iraq becomes even stronger when we look at its consequences. A civil war is steadily gathering momentum in Iraq. The insurgency is out of control and, as an American general told Time magazine, 'We have realised that the Sunnis are the wolves — the warriors —and the Shias are the sheep'. When the Americans leave as they eventually must, Iraq will explode and Turkey and Iran will probably be drawn into the war. Is this the way America wants to govern the world?

* The author, a noted analyst and commentator, is a former editor of the Hindustan Times, The Economic Times and The Financial Express, and a former information adviser to the prime minister of India. He is the author of several books including, The Perilous Road to the Market: The Political Economy of Reform in Russia, India and China, and Kashmir 1947: The Origins of a Dispute, and a regular columnist with several leading publications.