The timing of the death sentence imposed on Saddam Hussein, so suspiciously convenient for Republican aspirations in the mid-term elections, will only deepen the sectarian tensions in Iraq, fanning further the flames of civil war. While President Bush predictably greeted the news as yet another ‘milestone’ in the effort of the Iraqi people ‘to replace the rule of the tyrant with the rule of law,’ a less partisan reaction would lament the timing as intensifying sectarian strife in Iraq that has by now become a civil war intertwined with a war of resistance.

The American stage-managing of this judicial process in Baghdad has been evident to close observers all along. It always seemed legally dubious to initiate a criminal trial against Saddam Hussein while the American occupation was encountering such strong resistance by Saddam loyalists, especially as the US-led invasion was widely regarded throughout the world as itself embodying the crime of aggressive war, a crime for which surviving Nazi leaders were charged and punished at Nuremberg after World War II. This reality constitutes a fundamental flaw in this whole judicial process. In effect, why Saddam Hussein? Or differently, why not George W. Bush, Dick Cheney, and Donald Rumsfeld?

The cost of this political opportunism by the United States goes beyond the narrow circumstances of this trial. No one doubts that Saddam Hussein and the other defendants were substantively guilty of crimes against humanity when they killed 148 civilians in the town of Dujail back in 1982 after a failed assassination attempt; collective punishment is an international crime whatever the provocation. But the potential contribution to building a legal tradition of accountability applicable to political leaders has been undermined in this instance by the circumstances and auspices of the this tribunal, and by the way the prosecution proceeded. Defense lawyers were not adequately protected, and three were killed; evidence presented to the tribunal was not made available to the defense in advance; the judge was switched midway through because he was alleged to be too permissive toward those accused; there were no international judges on the tribunal; and some of the evidence appeared to be fabricated. Justice is not done if the appearance of justice is not present. This is particularly true if there is deep political cleavage about whether those accused should be prosecuted in the first place.

Finally, the impact of this death sentence is morally and politically questionable. At this point, internationally, a death sentence is not considered to be an acceptable punishment; the International Criminal Court, and other international criminal tribunals, reject capital punishment as an option. Almost all political democracies in the world have done away with the death penalty, and so to impose it here, especially by way of hanging, can only be regarded as an expression of primitive vindictiveness, an act of vengeance far more than an expression of justice that brings discredit to the whole process.

Politically, as the sectarian demonstrations throughout Iraq have already demonstrated, the verdict at this point by an Iraqi tribunal acting under the authority of the American occupier, intensifies the problematic situation in the country. It fans the flames of Sunni/Shi’ia strife, which possesses most of the characteristics of a civil war, and it reinforces the impression of an aggressive occupier imposing its historical narrative on a still deeply divided society. It also poses a dilemma. If the death sentence is carried out, it will ensure Saddam Hussein’s status as a Sunni martyr, and make even more unlikely an accommodation among Iraqis as an alternative to civil war. On the other hand if the sentence is not carried out, it will give further evidence that this is a political, not a legal, process, and sadly, encourage the most cynical views of these efforts to hold political leaders responsible for crimes of state. As well, it will sustain Saddam Hussein’s claim to be still the leader of the Iraqi people, a hero in captivity.

All in all, the outcome of this first trial against the Ba’athist regime of Saddam Hussein, should have been internationalized, or at the very least, waited until normalcy had been restored in Iraq. To convert this criminal process into a tool to vindicate the narrative of the Bush administration as to what was achieved in Iraq by the invasion and occupation was itself misguided even if the only audience was here in the United States. By now, even naïve America no longer listens when Washington claims that another milestone establishes progress in the war. As the milestones pile up, so do the bodies!