Reflections on the Death of a War Criminal

An experienced capital defender makes the case against Saddam's execution

The morning Saddam Hussein was executed, my wife warned me not to go on the internet. Of course, I soon went online, but instantly knew I should have heeded her advice. Pictures of Saddam’s execution were everywhere. The images depressed and profoundly saddened me. The emotions were no surprise, but their depth and duration were. I have wondered since that morning why I remain so troubled by the execution of a man who unquestionably was a thug, a mass murderer and a war criminal.

I have spent the past sixteen years representing people on death row and teaching students about the death penalty. My opposition to the death penalty stems, in large part, from my Catholic belief in the sanctity of human life. Of course there are many more “secular” reasons to reject the death penalty, but for me, these too ultimately find root in my religious belief in the inalienable dignity of all human beings. Catholic teaching on social justice has played a formative role in shaping my career as a lawyer and an educator, leading me both to represent the condemned and to become a founding faculty member at the University of St. Thomas School of Law, whose purported mission was to “integrate faith and reason in a search for truth through a focus on morality and social justice.”

I opposed the execution of Saddam Hussein from its first theoretical discussion prior to the U.S. invasion of Iraq. I believed then, and am further convinced now, that his execution will cause far more harm than good. I know this hardly sounds like the categorical moral condemnation one might expect from someone opposed to the death penalty on religious grounds. However, given the magnitude of the atrocities involved, I believe it is particularly important to analyze Saddam’s execution carefully to see if it can be justified morally or legally. The Church’s moral teachings on this subject are a good place to look for guidance in conducting this analysis.

Practically Nonexistent

Despite the assertions of some on the religious right, the Church’s teachings are clear that the death penalty may never be used in a modern society with functioning judicial and penal systems. The Catechism of the Catholic Church (sec. 2267) states that the only time Church teaching permits the use of the death penalty is where the “execution of the offender is an absolute necessity,” because it is “the only possible way of defending human lives against the unjust aggressor.” The Catechism goes on to declare that throughout the world today, the Church deems such situations “practically nonexistent.”

A case can be made that Saddam’s execution was the only possible way of defending human lives. That said, why then did the Church counsel against Saddam’s execution, and afterwards describe it as “tragic news” and “a cause for sadness?”

Although Iraq has judicial and penal systems that function on some level, it is not hard to imagine a situation in which insurgents managed to free Saddam, particularly if he remained alive following a withdrawal of U.S. forces from the country. As a result, one could rationally argue that Saddam’s execution fit squarely within this “practically nonexistent” exception, thereby leaving to the “prudential judgment” of government officials the decision of whether Saddam’s execution was warranted. Under these circumstances, a case can be made that Saddam’s execution was “the only possible way of defending human lives.” That said, why then did the Church counsel against Saddam’s execution, and afterwards describe it as “tragic news” and “a cause for sadness?”

Belligerent Occupation

The answer, unfortunately, lies in the way United States’ violations of international law artificially made Saddam’s execution appear to be “the only possible way” to defend human lives. Put aside for the moment the serious and substantial allegations that our preemptive invasion of Iraq was itself illegal and a war crime. Regardless of one’s position on the legality of our invasion, what cannot be disputed is that the U.S. engaged in a “belligerent occupation” of Iraq as that term is defined under international law in both the 1907 Hague Regulations and the 1949 Geneva Convention.

Under these laws occupying powers are responsible for ensuring public order and safety and respecting the laws of the territory occupied. Among other prohibitions, a nation that forcefully occupies the territory of another must not do any of the following:

  1. change the existing legal system;
  2. change the status of officials or judges;
  3. change the penal legislation;
  4. issue new penal provisions;
  5. change the tribunals of the occupied territory;
  6. set up new courts to try citizens while under occupation; or
  7. prosecute inhabitants for acts committed before the occupation.

The U.S. violated each of these conditions.

By withholding sufficient troops from the conflict, the U.S. failed to meet its obligation under international law to secure public order and safety in Iraq. The U.S. also dissolved Iraqi government institutions, including the legal system, police and army, thereby contributing greatly to the anarchy that followed and the perception that Saddam’s execution was necessary as an act of collective self-defense. Finally, the U.S. created new laws (in the Statute of the Iraqi Special Tribunal), appointed new judges and prosecutors and permitted these entities to try Saddam on charges based upon these newly enacted laws—all in violation of the Hague and Geneva Conventions.