The Remains of Authority and the Trial of Saddam Hussein
Rogers, Juliet, Rush, Peter D., The Australian Feminist Law Journal
Judge: Afraid of Whom? Ghosts?
Al-Tikriti: Afraid of the terrifying court.
Judge: You're terrifying!
Al-Tikriti: No, you're terrifying.
Judge: Why do you always have to be the hero? Get him out of here.1
A courtroom is not an arena in which dissension, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice.2
What does it mean to declare the unprecedented? This article is a consideration of the act of declaring, understood both as an act of speech and as an act which always points to a remainder. It is a consideration of the ghosts of time and the ghosts of speech that always appear in fantasies of precedent, as the remainder of the sovereign/subject relation. The act of declaration holds in it the investments and promises of time - what may arrive, what has been made present and what is left behind. The collation of time in the act of declaration points to the wielding of these three imagined events held firmly in the speech of the sovereign. But the certainty of a juridical declaration must necessarily collate a certain past in the hope of asserting a certain future. These events, outside the immediacy of the declaration, ensure that an uncertainty insists. This, indeed, might be what is so terrifying about the court that tried Saddam Hussein - the 'terrifying court' - a court built on another's war, on another's authority, attempting to secure the certainty of sovereignty in the present through the death of a sovereign past.
The Iraqi High Tribunal (IHT) in its gesture to ghosts - to those that declared before and to others who may declare differendy - announces its authority and the impossibility of authorship in the trial of Saddam Hussein. These tensions appear immediately and intimately in the question from the presiding judge to Al-Tikriti: 'Afraid of whom? Ghosts?' It is a question which announces a deferral and a displacement of, perhaps, the IHTs own concern about the ghosts that haunt its juridical presence. The displacement is pronounced in the exchange - 'you're terrifying', 'no you're terrifying'. No one is certain who is terrified or who is doing the terrifying; the ghosts of a juridical present cannot ever be truly known.
The exchange between Al-Tikriti and the presiding judge offers a point of departure for our concern in this article. We are interested in thinking through and understanding the confusion and aggressive certainty announced in declarations of sovereign authority, and particularly that which accompanies the IHT's decisions and indeed any juridical decisions that stem from a belief in the authority of a sovereign's court. This belief always points to the remainders inherent in the act of declaration, and it is this residue which persists and insists in the declaration of any authority. Our concern with the declarations of the IHT is with what came before and what will remain after the execution, in every sense, of the tribunal's decisions. These remnants - which we will argue are the remnants of time and of speech - are perhaps the truly terrifying ghosts of any juridical claim to authority.
The tribunal's question to Al-Tikriti as a gesture to fear, authorship and ultimately the uncertain status of the IHT, as well as of any court which comes to claim authority over its subjects, will be interpreted in this article as the ever-present question that haunts a judicial authority. Who is the sovereign and how did it come to be so? Who must be killed and who can be killed in the name of the court? And then of course, what remains? These questions will be reframed through an interrogation of the form of the question and the form of speech that comes to announce a certain answer, a certain act, indeed, a certainty that disavows the always present status of any court's authority as a question.
We can understand this crisis of certainty as both the imperative for and as a product of the act of declaration. …