Was the Saddam Hanging Bush's and the Shiites' Immoral and Bloodthirsty Revenge?

Noah Feldman, a law professor at New York University and adjunct senior fellow at the Council on Foreign Relations, asks some contrarian questions in this coming Sunday's New York Times Magazine (login req'd).

What gave the Iraqis the direct legal right to execute Saddam? I'll provide an excerpt below.

My ruminations about this go off in a different direction. We do live a world that we believe is governed by law meant to preserve universal order. As such we reject the notion that one tribe may use laws as just another way to take vengeance on another tribe, regardless of the latter's brutality.

The biblical "law" of lex talionis - an eye for an eye - is an outgrown quasi-legal principle. All it did was balance tribal revenge to keep it from getting out-of-hand. It was an improvement over a village for an eye. In modern civilization, it does not qualify as a principled or moral law.

Merely managing our basest impulses has never been the loftiest goal of law. We prefer to think that it embodies ideals like justice, liberty, equality and that it be used to foster good and moral life and to punish and deter crimes and evil.

Using courts as a sophisticated way to wreak a bloodthirsty revenge is actually a perversion of justice. So now we ask The Question.

Was the Saddam Hanging Bush's and the Shiites' Immoral and Bloodthirsty Revenge? Was the whole point of the invasion and war a means for W to seek out and kill Saddam because in 1991 Hussein threatened to assassinate George Sr.?

Were the Shiite judges and executioners gleeful to hasten the death of Saddam to fulfill their need for revenge against Sunni brutality? If so, then the hanging was a new low point in middle Eastern society and a black chapter in the history of the US.

As I said, Feldman takes a look at the question more focused on what was the actual legal basis for the execution. He concludes,

In part, the tribunal sought to draw legitimacy from international law. The court found Saddam Hussein guilty not of ordinary murder but of ''crimes against humanity,'' a grand-sounding, internationally recognized charge with intuitive moral force. When the phrase ''crimes against humanity'' was used at the Nuremberg trials in 1945, the convening nations did not bother to explain what gave them the right to define and punish such crimes. It was presumed self-evident that certain actions were so terrible that they must be treated as illegal, even if they might have been permissible under Nazi German law when they took place. The so-called Rome Statute, which created the International Criminal Court in The Hague in 2002, specifically defined crimes against humanity in terms drawn from the Nuremberg charter, and the definition used by the Iraqi special tribunal was copied from there.

Yet it is hard to believe that the Iraqi tribunal could convincingly claim its authority from the international community. Like the United States, Iraq has not ratified the Rome Statute. Indeed, the Iraqi tribunal explicitly avoided submitting itself to international standards so that it would be able to apply the death penalty, which most of the international community rejects. This resulted in near complete withdrawal of international cooperation in the investigation of Saddam Hussein's crimes and the trial itself, and the tribunal lost some of the perception of fairness that would have come from broader international participation.

So where, if anywhere, did the Iraqi tribunal get the right to punish Saddam Hussein for crimes against humanity? Sovereign nations like Iraq can, of course, punish whatever crimes they choose, and can change or abrogate their own earlier laws to do it. But there is something unsatisfying about offering this as an account, for it diminishes the tribunal's credible claim that the Iraqi dictator's actions reverberated worldwide, implicating not just Iraq but all of humanity. There must be some deeper source of law, apart from treaties or the dictates of the United Nations Security Council, that bans the systematic killing of innocents.

The most persuasive answer is that a law prohibiting crimes against humanity derives its authority from the inherent moral responsibility that lies with whoever has the capacity to punish truly heinous deeds. To be sure, in some cases the international community will bear that responsibility. In the case of Iraq, though, the international community was not in a position to act, not only because of the question of the death penalty but also because many of its members denied the legality of the invasion. Responsibility rested with the powers that actually held Saddam Hussein within their grasp. Their right - and their duty - was to bring him to justice.

By these lights, the decision to charge Saddam Hussein with crimes against humanity was morally and legally justified. Nevertheless, the process fell short of what is needed to invoke the transcendent norms of universal justice. This was a profound failure. As with the other shortcomings of Iraq's government, many players were at fault here: the Americans for failing to provide security for the Iraqis, including the defense team; the Iraqis for failing to get the trial - or the country - to run smoothly; the international community for sanctimoniously disengaging.

But the fact that blame is to be shared does not mitigate the tragedy of this missed opportunity.

It would have been a lot more fitting to to drop the charade of pretending that we acted out of an, "inherent moral responsibility that lies with whoever has the capacity to punish truly heinous deeds" and said what we suspect motivated the whole process.

To hell with law and justice. We wanted revenge.