-- By K. G. Kannabiran
Was Execution of Saddam Hussain right? That is not the question. What is right about death penalty as a punishment? Look at the trial and death sentence handed down by the tribunal which tried him in Iraq. The tribunal was constituted under the aegis of American Occupation. The Western Powers invading Iraq as a monstrous punitive war because Iraq defied their hegemony. The pretext was the alleged possession of weapons of mass destruction. A majority of world public opinion did not approve this invasion particularly when the world learnt that there were no weapons of mass destruction stored by Iraq.
In this view the entire punitive expedition launched by the American and British Governments become politically and morally questionable. The formation of the Government in Iraq under the supervision of American forces was and even now is wholly lacking in democratic credentials and never had, in the midst of unceasing interment violence, credibility. In this situation the trial held against Saddam can only be of the kangaroo variety and the sentence of death is pure and simple pre-meditated judicial assassination.
In fact no political trial leading to death sentence has ever been fair. The extent of Sovereign Power enjoyed by the Ruling class determines the character and conduct of the institutions, which have been entrusted with dealing out justice. The harshness or otherwise of the sentences handed down have been neither systematic nor certain. The harshness of the punishment among other related factors is related to ones hold on power as also the anticipation of overt dissent. The harshness does not vary with the levels of leadership a person occupies. Persons steeped in poverty who take up to arms as Bhoomiah and Kishta Gowd as foot soldiers of the M L Movement, Sir Roger Casement’s execution, a British Civil Servant fighting for Irish cause, the Moscow October Hall show trials of the thirties of the last century where Bukharin and his colleagues who were executed as part of the unfolding of “Socialist legality” and the American variety of democratic trials of “communists” and liberals whose politics was regarded as un American of the McCarthy period tell us how impartial these Rule of Law institutions were.
Nearer home there is the example Bhutto of Pakistan. There is not much of a difference between the Hindu baying for Afzal’s life, accused in Parliament attack case and Shias and Americans rejoicing at Saddam’s execution. At this end the bias the prejudice and the desire to avenge is so transparently preponderant that to name any of these executions as just would be a wholly untenable position to take.. No theory of jurisprudence can sustain these as just.
The debate about due process is out of place in the decision making processes which lead to the execution of politically defeated political leaders who are held captive. Do political executions be preceded by trials by tribunals constituted by the victors is a question which has to be debated. Is the defeated alone the war criminal? If Saddam is accused of ‘crimes against humanity” - an offence under the International Criminal Code - why was he not tried by the International Criminal Court? If Iraq is not a party to Covenant and Convention, which established the Code and the Court, why did not the United Nations constitute a Tribunal comprising of members selected from neutral nations. It need not be based on the myopic understanding of Rule of Law of Messrs Bush and Blair. Perhaps we will have to a move towards a culture of international rule of law to try them for their crimes and in that process try to abolish death sentences on political leaders.