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Article Excerpt
[In the performance of Saddam's trial, which culminated in the executions of Saddam and two of his co-defendants, we find both lawmaking and law-preserving violence at work. The new Iraqi State exercised its law-preserving violence when sitting in judgment on Saddam's own acts of law-preserving violence. Yet the trial was also an affirmation of its own legitimacy on the part of the new regime, a performance designed to justify and uphold the lawmaking violence of the Iraqi war. The violences of law, the violences which found and reinforce the authority of the state, are anchored in performance. There is a symbiotic relationship between violence and play; the violence of law requires play, and hence the administration of state violence against Saddam and his co-defendants occurred in the form of the rule-bound, orderly performance of the trial. Yet other forms of play, other more spontaneous performances, can disrupt the violence of law. The defiant performances of Saddam and his co-defendants suggest that play can be a strategy for negotiating the violence of law.]
CONTENTS I Introduction II Violence and Play III The Violence of the Trial IV Play in Saddam's Trial V Conclusion
I INTRODUCTION
In 2006, the first Iraqi trial (1) of Saddam Hussein and his seven co-defendants was undeniably the most publicised trial, the show trial, in the 'war on terror'. This trial, and the executions which followed, have been met with strong criticism from various organisations and individuals concerned about procedural flaws and unfairness, as well as from governments and groups opposed to the application of the death penalty. Critics of the trial process include Human Rights Watch, an international human rights organisation which constantly monitored the trial proceedings. (2) Human Rights Watch has argued that the trial process was fundamentally flawed, with significant administrative, procedural and substantive legal defects. (3) These defects detract from the credibility of the trial (4) and from its value as part of the historical record of human rights violations under Saddam's government. (5)
However, my focus is not on the defects in the trial process. I am interested, rather, in the themes of violence and play: in the extent to which multiple acts of violence surrounded, supported, justified, corroded and were judged in the trial process; and in the central role of different forms of play within this process. Play, in the form of ceremony or spectacle, is integral to the administration of state violence. Yet Saddam's trial also demonstrates the possibilities of play as an antidote to such violence, as a subversive device which can disrupt and undermine the ordered performance of law-preserving violence.
II VIOLENCE AND PLAY
I shall explore the multiple manifestations of violence in Saddam's trial by drawing on Walter Benjamin's distinction between lawmaking violence and law-preserving violence. (6) Saddam's trial exemplifies the characteristic interplay between these two forms of violence, or what Benjamin describes as the 'dialectical rising and falling' in these forms of violence. (7) In this 'oscillation', lawmaking violence contributes to the origin of every state, which then exercises law-preserving violence in 'suppressing hostile counterviolence'. (8) Eventually, when 'new forces of those earlier suppressed [forms of violence] triumph over the hitherto lawmaking violence and thus found a new law', (9) the cycle continues.
The foundation of all states lies in acts of violence which could well be interpreted as acts of terrorism, acts of revolution or acts of rebellion by the displaced regime. (10) If, however, such acts are successful in achieving political revolution, they acquire a belated legitimacy. Jacques Derrida, in his influential reading of Benjamin's essay, describes the moment of the foundation of each state as the 'ungraspable revolutionary instant', (11) a moment in which no law applies. (12) Subsequently, each state constructs the 'proper interpretative models' to confer legitimacy upon these revolutionary acts of lawmaking violence, (13) and thus affirms its own legitimacy. However, the state remains fearful of similar acts of 'fundamental, founding violence' on the part of others which will, if successful, 'transform the relations of law' and 'present [that violence] as having a right to law'. (14)
Acts of 'fundamental founding violence' differ markedly from acts of ordinary criminality. There is 'a willingness not only to die but also to kill for an understanding of the normative future that differs from that of the dominating power'. (15) By contrast, the acts of violence that are committed by the state in maintaining its authority through the exercise of law are acts of law-preserving violence. In Saddam's trial, such acts were judged and condemned by a new government, through a complex legal ritual which culminated in the spectacular violence of the death penalty.
Derrida contests the viability of Benjamin's distinction between lawmaking and law-preserving violence. (16) Indeed, Benjamin himself analyses situations in which both types of violence were simultaneously displayed. In particular, Benjamin argues that capital punishment encapsulates not merely law-preserving violence, but also its lawmaking violence; in capital punishment, 'law reaffirms itself'. (17) Saddam's trial can be perceived as an exercise of law-preserving violence by a new regime, but takes on an added significance as a legal performance deliberately designed to validate the revolutionary violence and ongoing bloodshed of the war in Iraq. The trial is part of what Derrida describes as 'the discourse of [the new state's] self-legitimation'; (18) the authority of the Iraqi High Tribunal ('Tribunal') was derived from the continuing acts of violence of the war in Iraq and its aftermath, but at the same time, the trial was intended to confer legitimacy upon these acts by demonstrating the excessive criminality of the deposed leader. Thus, the trial can be seen as part of the lawmaking violence which established the new Iraqi State.
Derrida recognises the centrality of performance in lawmaking violence, and in law-preserving violence. The founding moment of law is distinguished by a 'pure performative act that would not have to answer to or before anyone'; (19) terrorism, revolution and rebellion exemplify performance in the form of spectacular violence. Yet performance is also central to law's self-validating practices, as Derrida suggests in the concept of 'performative tautology'. This tautology
structures any foundation of the law upon which one performatively produces the conventions which guarantee the validity of the performative, thanks to which one gives oneself the means to decide between legal and illegal violence. (20)
The trial as a particular example of law-preserving violence has long been recognised as a form of play, performance or theatre. Trials are often described and analysed in theatrical terms. (21) Political playwrights and artists have exploited the trial as performance. Arthur Miller drew on the transcripts of the Salem witchcraft trials in his indictment of state-orchestrated witch-hunts in his play The Crucible. (22) Bertolt Brecht planned a theatre which would function like a courtroom and in which famous courtroom...
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