At a time when the practice of the death penalty is being intensely contested, the ruling of the Iraqi court to sentence Saddam Hussein to death for crimes against humanity once again brings the broader issues of victors’ justice and its consequential ethical dilemmas to the center of international law. At a deeper and more complex level of understanding, it clearly exposes the dichotomy prevalent in judicial systems between restorative justice and retributive justice. While these ethical and ideological issues remain at stake, Saddam’s fate however will perhaps be determined by the pragmatism of real politik; and hence the diabolism of victors justice.
“Why do we kill people, who kill people to prove that killing is wrong” is the slogan embraced by Amnesty International in their pursuit against the death penalty and it eloquently deconstructs the retributive rationale upheld by a judicial system. It brings to question the issues of right to life and how so frequently because the victim is defined as the ‘state’ and not the actual person who has been victimized, the idea of retributive justice is often intertwined around the concept of revenge. It’s therefore not surprising that concepts of justice and revenge has been projected as being synonymous with devastating effect.
Without getting caught up on the concepts of justice and revenge and its jurisprudence, the issue of the death penalty in the context of victors’ justice deviates from the normal process of a justice system and reflects more acutely the socio-political realities of the victor. If Saddam were tried by the International Criminal Court in The Hague, the question of the death penalty would not have arisen; at most he would have received imprisonment for life. Western Europe has abolished the death penalty, unlike their cousins to the west of them – the United States – where death penalty continues to be practiced.
This is in light of the fact that after World War II, the Nuremberg trails put several accused to death for crimes against humanity for their role during Hitler’s regime. The executions however created divided opinions and rather than contributing towards the healing and reconstruction of Europe, it only resulted in more fragmentation. The limitations of victors’ justice through a retributive system in the context of reconstruction and rebuilding of a society was adequately exposed and there have been ongoing efforts to transform the judicial system from retribution to one that is founded on restorative justice.
While there is no doubt that Saddam has during his rule been responsible for crimes committed against humanity, the more fundamental questions focused on the legal technicalities of a fair trail procedure and the recourse that the court would take. With the court having now passed the death penalty as punishment, it has demonstrated evidently that the broader socio-political intent of the victors is to maintain the status quo as the new order, rather than taking steps of healing and reconstruction in Iraq.
The death penalty is raising issues of moral authority and could actually lead to a real divide both within and outside Iraq. If such reactions does lead to such a divide, it would ironically mean, that Saddam would have the last say. Perhaps in his death, Saddam would have a deeper impact on the US-Iraq war more than any other event.
In the final analysis, it is evident that there needs to be a paradigm shift from victors’ justice to survivors’ justice and from retributive justice to restorative justice.
