The Trial of Saddam Hussein
The New York Times on Saddam's trial:
One of the best ways to repair such a damaged society is a systematic judicial investigation of the old regime's crimes. That should be followed by a scrupulously fair trial ... In the case of Iraq, where legal training and appointments had been bent for decades ... that should have called for enlisting help from international legal experts and using relevant precedents in international criminal law. The Bush administration and its Iraqi allies strongly opposed that step because it would have excluded the death penalty.
... this prosecution would have been conducted differently if it were a serious attempt to uncover the murky lines of authority and responsibility within the Baathist regime and establish Mr. Hussein's clear personal responsibility for at least some of the roughly 300,000 murders committed in his name. It would have built up its case methodically, from the field operatives carrying out the killings to the officials who gave them their orders and on up the chain of command to Mr. Hussein himself.
Human Rights Watch on Saddam's trial:
The “Iraqi Special Tribunal for Crimes Against Humanity” (Iraqi Special Tribunal) was created by the Iraqi Governing Council in December 2003. It is fundamentally different than the Special Court for Sierra Leone, discussed above. The SCSL was established by joint agreement between the government of Sierra Leone and the United Nations, while the Iraqi Governing Council established the Iraqi Special Tribunal under an occupation and without participation by the United Nations.
The Iraqi Special Tribunal does not provide for Iraqi and international judges and prosecutors to work together to try cases. Instead, all prosecutors and investigative judges are required to be Iraqi nationals. The law allows for the possibility of appointing non-Iraqi trial and appeals chamber judges, but only if the Iraqi Governing Council approves. The Iraqi Special Tribunal law also provides for some international advisors and monitors, but this is not comparable to appointing international judges and prosecutors with relevant expertise to work alongside Iraqi jurists.
The procedures for trials provided for in the Iraqi Special Tribunal law also have numerous problems. There is no requirement of proof beyond a reasonable doubt and the death penalty is permitted. The 1971 Iraqi criminal procedure law could be used, permitting the tribunal to use confessions obtained through “physical coercion” and to hold closed trials. ...
Iraqi jurists and international specialists should work together to recommend the most appropriate form of a tribunal to try the most serious past crimes committed in Iraq. Human Rights Watch has recommended that the Iraqi Governing Council partner with the United Nations to form a mixed Iraqi-international Group of Experts. A mixed Group of Experts would allow Iraqi jurists to use existing international experience to develop a tribunal that will operate fairly and effectively.
The World Socialist Website on Saddam's trial:
The decision announced July 17 to file the first charges against deposed Iraqi president Saddam Hussein has set the stage for what can only be called a political show trial later in the year. Confronting deep popular hostility and fierce armed resistance, US authorities and the puppet regime headed by Prime Minister Ibrahim al-Jafaari have decided to put Hussein on trial in a bid to both cow public opposition and garner support from sections of the Shiite and Kurdish communities that suffered most under the Baathist dictatorship.
So blatant are the political machinations that the New York Times reported: “The tribunal officials said they had faced a swirl of pressures that have been more overtly political. Some government officials, they say, have been insistent that Mr. Hussein face trial before elections scheduled for December in which Iraqis are to vote for a full, five-year government. Their assumption, the tribunal officials say, has been that a detailed recounting of Mr. Hussein’s atrocities in court will consolidate popular support behind the Shiite and Kurdish leaders, and isolate Sunni Arab hardliners.”
Raeed Juhi, the 35-year-old judge handpicked for the task, told the media that Hussein would be tried over the 1982 massacre of more than 150 people in the Shiite village of Dujail. Juhi is the chief investigative judge for the Iraqi Special Tribunal established in December 2003 by US occupation authorities following the capture of the former Iraqi president. If found guilty, Hussein faces the death penalty.
(Speculation alert) The problem, of course, is that it is not just Saddam who is on trial. An historical background on the Nuremberg Trials describes the approach taken by the principal investigator with respect to the Nazi offenses, which were no ordinary crimes, even though individual criminals were before the court. Lt. Colonel Murray C. Bernays emphasized that the Nazi offenses were fundamentally a conspiracy; a conspiracy based on a perverted ideology. He was determined to put not only the surviving Nazi leadership, but their entire Party; its words and its actions on trial.
In July, 1944, with evidence of Nazi atrocities, not only against European Jews but also against Allied prisoners of war, the U.S. Office of the Chief of Staff appointed Lt. Colonel Murray C. Bernays to head up the investigation on Nazi war crimes against U.S. servicemen. Bernays, a naturalized American Jew of Lithuanian origin, and a graduate of Harvard Law School, was practicing law in New York at the time of his appointment. A brilliant lawyer and meticulous investigator, he began the task of collecting information.
Very early in the process, it became evident to Bernays that it would not be enough to try specific individuals for specific offenses. In his view, it would be a travesty of justice to try individual Nazis and leave the Nazi movement out of which they emerged unpunished. Accordingly, Bernays began looking for a philosophical and theoretical rationale for unmasking the bestiality of the Nazi plan and program as well as its implementation through the instrumentality of accused war criminals. ... Lemkin had argued that organizations like the SS were criminal conspiracies. In that context, the murder of 6 million Jews and nearly 6 million additional civilians by the Nazi government could be viewed as a monstrous conspiracy against humanity -- a conspiracy based upon the doctrine of racial purity.
There may be valid technical criticisms of Saddam's coming trial. But attitudes toward the trial are colored by the extent to which parties feel themselves philosophically in the dock with him. Some in the direct sense, as his accomplices; others as his hirelings; still others implicated indirectly as the Men of Munich were, the enablers of evil by omission. For too many Saddam's trial must never be the day of judgment.
Historical Note
It's not widely remembered that there two plans for de-Nazifying Germany. Both approaches were intended to "send a message". The first was the so-called Morgenthau Plan, named after American Treasury Secretary Henry Morgenthau, Jr., which involved neutering Germany for decades. (It's ironic how Germans were once regarded as incapable of democratic self-government.)
Roosevelt's motivations for agreeing to Morgenthau's proposal may be attributed to his desire to be on good terms with Stalin and to a personal conviction that Germany must be treated harshly. In an August 26, 1944 letter to Wilhelmina of the Netherlands, Roosevelt wrote that "There are two schools of thought, those who would be altruistic in regard to the Germans, hoping by loving kindness to make them Christians again - and those who would adopt a much 'tougher' attitude. Most decidedly I belong to the latter school, for though I am not bloodthirsty, I want the Germans to know that this time at least they have definitely lost the war." ... At the Tehran Conference in late 1943 Stalin had proposed that at least 50,000 and perhaps 100,000 German officers should be liquidated. ... (US Department of State, The Conference at Cairo and Tehran, 1943 (Washington: 1961) p. 602).
The plan was eventually rejected, in part through the opposition of Anthony Eden, and after considering the humanitarian disaster it would cause. The fallback method for de-Nazification were the Nuremberg Trials.
The demise of the Morgenthau Plan created the need for an alternative method of dealing with the Nazi leadership. The plan for the “Trial of European War Criminals” was drafted by Secretary of War Henry L. Stimson and his War Department. When Roosevelt died in 1945, Harry S. Truman gained the presidency and gave strong approval for a judicial process. After a series of negotiations with the Soviet Union, Britain, and France, details of the trial were worked out. The trials were set to commence on November 20th, 1945, in the city of Nuremberg.
Many faint echoes of that earlier debate will be present with Saddam in the courtroom.
posted by wretchardthecat at 10/19/2005 03:45:00 AM
46 Comments:
Three of the larger terror organization mouthpieces: NYT, HRW, and the WSW are at least all in agreement that the punishment of dictator who used terror as his leadership methodology is bad.
And I am surprised how?
I think it will be hard to evaluate the historical impact of the trial until it is well underway. It will be hard to judge the man without including the international system that made him possible. The proceedings so far suggest that Saddam will be uninhibited about his utterances. Despite the UN's concerns about the "narrowness" of the specification, the Washington Post notes that a substantial part of the regime's hierarchy is going on trial alongside him. It'll be a wild ride.
"The other defendants in the case are Barzan Ibrahim, Hussein's half brother and the head of Iraq's intelligence service until 2003; Taha Yassin Ramadan, Iraq's vice president until 2003; Awad Haman Bander Sadun, former chief of Hussein's Revolutionary Court, which sentenced many of the Dujail men to death; Abdullah Kadhim Ruweid, a senior Baath Party official in Dujail who is accused of rounding up the local residents after the assassination attempt; Mizher Abdullah Ruweid, his son; and two other senior Baath Party officials in Dujail, Ali Daeem Ali and Mohammed Azawi Ali."
Because Saddam is facing a certain death sentence he may try to take down whoever he can with him. Thus, the trial threatens to stink up the entire "international" political system. Of course, he can implicate the US as well. Why does America not fear the proceedings? Nervous observers must think that angle has been well covered but wonder at their own exposure.
The underlying premise of this Liberal trash talk is Iraqis are basically incompetent and unqualified to judge one of their own. I note first that such trash talk is conducted from afar, so very safely away from real Iraqis. These Liberal fools need to be on the ground with the Iraqi people expressing their concerns and doubts and intentions. They really need to be human shields for saddam hussein, so Jurisprudence at its finest can manifest. Can't you just imagine some pale-skinned Western Liberal fool on the street in Baghdad telling the people saddam is not being treated fairly?
One can only wonder about the twisted simulation of logic that would bring into the trial representatives of the very organization that appointed Batthist Syria to its own Human Rights Commission.
As for openness in the proceeedings - I watched part of them from my home while eating breakfast this morning.
Also, is it not curious that so many of the crimminals from the communist goverments of Eastern Euope and their allies still walk freely? Has the Bader-Meinhoff gang been rounded up yet? Were communist crimminals of Saddam's ilk, if not his absolute magnitude, brought to trial in a similar manner? If so, I don't recall it.
Perhaps the openess and thoroughness of the Butcher of Baghdad's trial is too embarassing to some people.
"Because Saddam is facing a certain death sentence he may try to take down whoever he can with him. Thus, the trial threatens to stink up the entire "international" political system."
I wonder if we will hear condemnations of these trials from some of Saddam's former suppliers? I presume that Saddam has knowledge of payments that could be very embarrassing. Once Saddam knows he has been forsaken he will not have any reason to keep his trump cards.
I should have said "the NYT's concerns about the 'narrowness' of the specification" in the post above. The implicit accusation being that the US has something to hide and therefore steering the trial into safe water. How this is possible without physically gagging Saddam is hard to imagine. And if this were the overarching goal, a grenade dropped down the spider hole on the night of his capture would have silenced him even better.
While I fully expect Saddam to lay into the US, there's every possibility that a lot of esteemed and sophisticated world leaders are going to come out stinking like a sewer. And since the US is already vilified as a matter of course, the marginal excoriation isn't going to hurt as much as it will others.
Remember, too, that Saddam's trial will bring to the forefront the point that deposing him was a highly worthy undertaking in and of itself, regardless of whether or not it leads to democracy in other parts the Arab world, and regardless of whether or not Iraq was a threat to the United States. An undertaking that one would think would get rave reviews from the left. Of course, that would require giving credit to Pres Bush. Which at least half of those on the left would sell their souls not to do.
"that should have called for enlisting help from international legal experts and using relevant precedents in international criminal law."
They don't bother mentioning that the U.S. Dept of Justice has been providing extensive advice and assistance from the very start.
exhelodrvr,
The word "international" has become a code phrase to mean "United Nations sponsored". It's one more milestone along an almost Gramscian program of creating legitimacy by construction, the theory being that constant repetition and the manufacture of enough protcols, memoranda, aides memoire, treaties and proceedings will in and of itself, independently give rise to law.
You may want to call it advocacy, or progressivism, or the act of spreading the soft glow of enlightenment over the dark North American continent. You may call it anything you want except mental fascism. That phrase is reserved, with customary inversion, for anyone who thinks the nihil obstat or imprimatur of the "international" experts is unnecessary.
One can only wonder about the twisted simulation of logic that would bring into the trial representatives of the very organization that appointed Batthist Syria to its own Human Rights Commission.
On the contrary. I think we should bring into the trial those representatives. As co-defendants...
It behooves the other dictators in the Middle East to pooh-pooh the proceedings as much as possible, too. I anticipate we'll be seeing much more of the same sort of overt spin as you can read in this article out of Abu Dubai's GulfNews:
Iraqis in Dubai say court case is a political farce
By Bassam Za'za', Staff Reporter
Dubai: Saddam Hussain's trial is unfair, unjustifiable and a political farce and he should not be treated as a war criminal because he was defending his country and people, a Dubai-based lawyer said.
Saddam Trial
Kurdish judge named to head trial
Five killed in Iraq attacks
Tikrit crowd cries support for Saddam
Saddam trial today
Ex-dictator now at the mercy of Iraqis
The differing fates of Saddam's top aides
Other charges against Saddam
Iraqis in Dubai say case is political farce
Results of charter poll 'may take several days'
"Many presidents have been involved in war crimes, such as the Israeli Prime Minister Ariel Sharon, and they haven't been arrested, charged or tried," said Hassan Mattar, an Egyptian lawyer who has been working in Dubai for more than two years.
According to international law, Saddam should not be treated or tried as a war criminal because he was his country's legitimate president, he said.
"The former Iraqi president had the constitutional power to protect his country's and people's interests by all means which he saw possible. According to international law, he shouldn't be treated as a war criminal because he wasn't carrying any weapons when he was arrested," he said.
Other Iraqis shared the same opinion.
Iraqi Sufyan Watheq Mohammad, 32, who comes from Al Anbar, west of Baghdad, told Gulf News: "The trial isn't fair because the entire situation in Iraq is unfair."
He said after the first Gulf war Saddam managed to rebuild the country's infrastructure.
"We were living a better life, had electricity and water and, most importantly, security was far more better than it is nowadays. The current government has done nothing. The people are suffering and getting killed."
The project manager, who has worked in the UAE for the past four years, said the trial was a political farce.
"It is a big lie and an unfair trial. The Americans are trying to say that independence and democracy has prevailed in Iraq because a former president is under trial."
He added he was totally opposed to capital punishment in the case of Saddam. However, others held opposite views.
Iraqi Bashar Ahmad, 35, who works in the media industry in Dubai, believes Saddam's trial is fair and if he receives capital punishment "it would be a very light sentence".
He said: "Saddam was unfair towards Shiites."
The Halabja mass graves were Saddam's dirtiest crimes, he said.
Raghad Ali, 27, an Iraqi housewife, said: "It isn't a fair or just trial because the Americans and Iraqi opposition have ganged up against him and thrown different accusations against him that they have failed to prove until now, especially the ties with Al Qaida and WMDs."
She added the statement by Iraqi president Jalal Al Talabani that Saddam should be executed more than 20 times clearly signified the trial was not fair and judgment had already been made.
Cybrludite - ditto re the UN. (But then, I think that W's point is that they are there really, in spirit).
Wretchard,
I know, it's just frustrating. My college roommate was on the U.S. Dept of Justice Liaison team for Saddam's trial for 18 months (up until last July), as the top advisor for the final six months. He has some pretty horrific stories about the going to the mass grave sites, etc., and is very proud of the work they did with the Iraqi judges, et al.
The defense will try to paint the U.S. as, at the very least, equally culpable with all sorts of conspiracy theories that cannot be proved. When faced with a lack of evidence for this the response will be that surely the U.S. has destroyed the evidence during its occupation.
Despite Saddam's obvious culpability in all his crimes, it will be the inuendo of U.S. culpability that will become the great cry of all those who bear the real burden of culpability; whether through commision or ommision.
Perhaps, one of the reasons for starting with such a seemingly small incident is that it matters not who supported or supplied Saddam in this instant, for this masacre can only be laid at his feet.
I think it would have been much better if Saddam had ended up swinging from a lamp post.
Many here would agree that the trial has utility, or that punishing Saddam is morally justified. I am just uncertain whether it is justified on other grounds. Saddam was captured by an international entity after an invasion. Historical precedent militates for an international trial, whether it be a US military tribunal or another Nuremburg. Many remain uncurious about that precedent and simply assert the obviousness of an Iraqi-governed trial. Legally, it is not obvious at all.
This public trial of Saddam is built off of ex post facto laws, to which we should be philosophically opposed (since it was a major grievance against George III and its preclusion is enshrined in our Constitution), even if a particular instance has great merit on utilitarian grounds. The uncomfortable fact is that Saddam never violated an Iraqi law, because he was the law. The obvious retort is that the same argument was made by the Nazis at Nuremburg, but Nuremburg was not under German auspices. It was under international norms, however recently built, that the Nazis were tried. It should be so with Saddam, given the circumstances of his downfall and capture.
Now, Iraqis have every moral right to punish Saddam. But if that is the justification, why use the courts, which are citadels of law as distinct from man's moral imperatives? Why not have the strength of conviction and just hang him? From what I can read, the moral justification overshadows all others in conversation, while the legal justification sits in the background unproven, and unnoticed.
A rebuttal to my position goes like this: "You are thinking in terms of American Due Process and American Constitutional Law. The Iraqis are free to have ex post facto laws because they are free to construct their own legal system and their own society. They are certainly free to try their former oppressor under universal or natural laws."
My response: it is not inconsistent to hold both positions, to concede the fact of Iraqi self-determination and disagree with the a particular manifestation of that determination. This is a distinction we often accuse multiculturalists of not making. We mock them because they refuse to disassociate tolerance and acceptance. Sure, a country is sovereign, though it behaves at its own peril in the international arena. Internally, it can make its own laws and supply any justification it can think of to support them. However, it doesn't follow from this premise that we should not criticize either the laws or the justification.
Add to this truism the situation of Saddam's capture by America, and I do not believe it inconsistent to argue that the trial is unfortunate, that its justifications are extra-legal and make a mockery of the law as Americans understand it, and at the same time hold the position that Iraqis have every right to do it. That there are good things to be had from this trial is not enough for me to embrace it.
Show trials and puppet regimes…
It would have been just if the US soldiers had shot the man dead at the time, but the Iraqi people deserve a chance to confront Saddam for his crimes and to make peace with a past that has left 300k dead and many more traumatically scared.
“In the end, it was a soldier who used a spade to unearth the hidden entrance to an underground chamber of hard-packed dirt.”
…
“The head of ground forces in Iraq, Lt. Gen. Ricardo Sanchez, called the hideout a "spider hole" that had just enough space for a person to lie down inside of it.
…
Sanchez described Saddam as "a tired man, a man resigned to his fate."”
It is telling when the World Socialist Website must turn to the NYT to dig a little deeper for scurrilous accusations.
I believe that the Bathist regime will largely shirk the Nuremburg prosecution because as far as conspiracies are concerned, Saddam as dictator was by and large his own henchman, save the family business of Uday and Qusay. Most of the collaborators are dead, in Syria or Vienna.
It seems supremely ironic that the World Socialists would object to a “show trial”. Perhaps hanging is too humane for such dispassionate butchers. A national healing can be attained through the legal process, it remains the salve for the injured in modern society as well as ancient custom.
The seed of democracy will take root when the ashes of Saddam titrate into the Tigris.
The Iraqi courts are being used to paint a semblance of legitimacy over a purely moral or utilitarian enterprise. That the moral crime is severe or the utility great is not enough to justify using using the law as dressing, or it shouldn't be for an American.
As an American, beholden to a belief in American supremacy in judicial philosophy and opposed to the idea of ex post facto laws, I cannot agree with this trial, though I will agree with the result. Since we had him in the first place and are complicit in the current affair, why not speak up and criticize?
Arguments from principle are exactly what the Iraqis need right now. The absence of American criticism is disconcerting.
This newswire headline just crossed: IRAQI TRIBUNAL CHIEF JUDGE SAYS SADDAM TRIAL ADJOURNED MAINLY BECAUSE WITNESSES DID NOT SHOW UP
Maybe because they're all dead? I don't see why they don't just take him back behind the toolshed and let the people go "Mussolini" on him.
I pray it doesn't turn into a Milosevic-style farce of proceedings. No doubt Saddam will be painted as a poor victim of Imperialist aggression. The left--if for no other reason--should find fault with Saddam for the environmental catastrophe he caused by draining the fertile marshlands between the Tigris and Euphrates. Where's the OUTRAGE?
Aristides,
Legally, this is the equivalent of the post-WWII French government trying the collaborators. They certainly didn't break any existing (under Vichy France) laws; and they were tried by the new French government. So I disagree that there is no precedent.
One last comment:
Applying the ideas of legal cause, burden of proof, preponderance of the evidence and so on does a grave disservice to the victims of Saddam. A trial in the international arena, with Iraqis as complainants, or a summary execution with Iraqis as executors, makes more sense than this. A trial is a place to apply existing law to a set of particular facts, not a place to register for posterity the reputation of an evil dictator.
This trial is an unfortunate beginning to Iraq's sovereign legal regime.
Exhelo,
I had forgotten about the French collaborators, though I do think the Vichy regime and Hussein's regime are distinct and pose different legal problems. Treason was against the law of France's Third Republic, so the question was, "Can violations of laws created by a former French regime be tried under the new French regime who carries the same law." Saddam broke no law, however you look at it.
"The best-beloved of all things in My sight is Justice; turn not away therefrom if thou desirest Me, and neglect it not that I may confide in thee.
By its aid thou shalt see with thine own eyes and not through the eyes of others, and shalt know of thine own knowledge and not through the knowledge of thy neighbor.
Ponder this in thy heart; how it behooveth thee to be. Verily justice is My gift to thee and the sign of My loving-kindness. Set it then before thine eyes."
God
Aristedes - so which "existing" international law would you apply if you took it outside Iraq? The "existing law" of the honorable French, or the "existing law" of Robert Mugabe who is busily recreating his own set of laws, or the "existing law" of 3,000 year old Sharia Law (which, given your criteria, probably has the most claim to endurance and therefore legitimacy)?
Aristides,
Is there a natural law or a universal morality in the case of craven and untried murder? What law might justify such genocide? Is it not for the triumphant to judge the vanquished and to embody that conduct into new laws into a harbinger of national legitimacy?
I disagree; certainly he murdered people/was responsible for the murders of people, which was against the then-current Iraqi law (I assume). Everyone at the time just ignored it, at least from a legal aspect; there is no statute of limitations on murder (again, I as assuming that to be the case in Iraq.) And I also disagree that "international law/courts" would have any jurisdiction over any sovereign territory. If it did, then it would always supersede every law of every nation.
Verc,
I agree, but is not your argument a moral or utilitarian argument as opposed to a legal one? Saying Iraq was lawless is the equivalent of saying that Saddam broke no laws, and tends to make my point: the laws of Iraq, which it is the sole function of the courts to interpret and apply, apply to Saddam's crimes ex post facto, which we should disagree with. It feels good and a televised trial is a great forum for closure and catharsis, but it's justifications are extra-legal as an American would understand them. The ends of punishing Saddam and holding him accountable for his acts are justified philosophically, there can be no doubt about that. The venue, however, is not justified if one starts from American principles of jurisprudence. A small point to belabor (though it seems I have done so), but one not much discussed. I thought I should, at the very least, bring it up.
I would apply international norms, Nahncee, which I was careful not to name laws (though I might have done so accidentally). The international arena is a state of nature, with ethical norms unwritten and changeable. In this arena norms are imposed most often by different powers acting in concert, and they are either accepted or denied by others as they see fit, though at their own peril. Under such a situation, the international community can impose "trials" on whoever they want for whatever reason they want, without invoking any existing written statute or law, much like it can declare war on anybody it wants for any reason it wants. Now, this general rule of the game is constrained by the capabilities and sensitivities of both the international community and the adverse party, a dynamic which is consistent with the state of nature and the evolution of ethics. This dynamic also allows me to argue for American interests without any fear of being hypocritical.
Because the international arena is a pre-law environment, or an extra-legal environment to be more precise, I have no philosophical problem with an international coalition imposing its will through show trials, if that is what they want to do (mostly because that is the way it is). Iraq is different. It is a government by consent now, and it should be constrained by the same philosophical and legal architecture in which we reside. Another way of saying this is that American legal philosophy is the correct one. Arrogant, elitist, self-important? Sure, but I always argue that way when discussing America.
Annoy,
That is not my understanding of the role of a judge.
Exhelo,
State murder was sanctioned under Iraqi law, and Saddam perpetrated his acts, not as a private citizen, but as the Head of State. So, he broke no law.
All I am doing in this argument is holding Iraq, as a Constitutional Sovereign, governed by the consent of its citizens, to the same standard as America.
With sovereign power comes sovereign immunity, and the ability of a government to protect itself from prosecution.
It is an illusion. Saddam's sovereign immunity plus $4 can buy you a nice Big Mac and fries. The question of sovereign immunity boils down to how much you want it, how capable you are in maintaining it, how much others want to dispose of it, and how capable they are of doing so.
Aristides,
Have you actually seen the Iraqi law that says that the head of state can kill/torture whoever he wants, without putting them through the existing Iraqi legal system? I would be very surprised if it is in there. (I am making an assumption, as I have not personally checked.)
It also seems to me that they are applying "international norms" here; he is not being charged with anything that would only be a crime in Iraq, it would be a crime anywhere. And you can't consider Nuremberg an "international" trial. It was a trial by the occupying powers of Germany.
Hitchens argues for four ways in which a country can lose sovereignty. He is not arguing law, he is merely summarizing issues on which the international powers agree. These are nothing more than ethical norms that a few consequential powers have agreed to enforce. The fact remains: Saddam didn't lose his sovereignty when he committed those crimes. He lost it when we took it from him.
Exhelo,
Iraq had numerous sedition laws that were vague enough to sanction any acts by Saddam if done in the name of national security.
It also seems to me that they are applying "international norms" here; he is not being charged with anything that would only be a crime in Iraq, it would be a crime anywhere. And you can't consider Nuremberg an "international" trial. It was a trial by the occupying powers of Germany.
Just so, but the specific laws being argued here are Iraqi statutes. Like piracy, Iraqis could simply hang Saddam for genocide. Instead, they are using their courts and their laws as window-dressing.
I'm not sure I understand the difference between "international" and "occupying powers of Germany," other than to say that "international" might be disfavored as imprecise. Super-national or extra-national is more operable, I suppose, when speaking of German citizens. Either way, we had carte blanche to do whatever we wanted with the Nazis. America might be constrained by treaties like the Geneva Convention, but that is because she is constrained by her Constitution, which honors treaties.
It is splitting hairs, but someone questioned the existence of an argument against the Saddam trial on principle, so I supplied one, though it seems to be unconvincing.
Think of it this way: If Iraq were a state of the United States, this trial would be struck down by our Supreme Court.
one last point, then I'm done (promise):
Verc ends his last post this saying the argument is over the location of legitimacy. That is surely what the argument is over as put forth by the UN or the EU. That is not my argument.
The legitimacy to try Saddam rests with the Iraqis now that they have him. They are sovereign (sovereignty itself being an international norm) and can do whatever they want (again, at their own peril, because sovereignty extends inwards not outwards). It is not legitimacy that I am arguing. I am arguing legal principle.
I am just checking my WWAD bracelet, and thinking it through.
Saddam's regime had a constitution/ supreme body of law.
His regime was never structured as a monarchy such as Britain where the Queen litterally is above the law as a matter of legal concept.
You know that Iraqi had laws against murder, kidnapping, theft, etc. And they certainly were applied to private parties. The prisons were full of common crimminals.
What happened in the dictatorship is that they never applied their own laws to themselves. This gives rise to notions of Baathist Iraq as a lawless state. Oh, no...It was full of laws and law breakers.
Saddam practiced selective punishment. And, obviously, never ever imagined that his time would end.
Iraq can try him for the crime of murder expressed in his own body of law. No socialist would even structure their laws on a monarchal 'divine right of kings'.
The notion that every civilian in a village could be construed as committing sedition is absurd on its face.
Deliberately targetting way under age childred for sedition.
Give us a break.
Saddam practiced selective punishment.
So do American prosecutors. Not against the law in pre-OIF Iraq on any account.
Iraq can try him for the crime of murder expressed in his own body of law.
The laws they are trying him under did not exist when he violated them. Again, Ex post facto. Murder would be one way to go, but even in the US we separate murder and state-sanctioned execution. He could just argue adherence to sedition laws.
The notion that every civilian in a village could be construed as committing sedition is absurd on its face.
Deliberately targetting way under age childred for sedition.
Give us a break.
But Saddam did justify the murder of entire villages just so. Horrible, despicable, morally detestable, but within the existing laws of the state of pre-OIF Iraq.
Hopefully you begin to see the problems and pit-falls of applying legal reasoning and principle to the case of Saddam Hussein. Law is built on the accuracy and precision of language, not on morality. That is why Iraq felt it necessary to pass the ex post facto laws in the first place, or they would have nothing on him. And it is on the ex post facto nature of the laws that I place my argumentative emphasis.
What must the people in surrounding nations think as they witness a referendum, and now this trial of a former dictator?
Hopefully this will serve to further shake the corroded foundations of these other brutal states (e.g. Iran).
I am unalterably opposed to allowing an international "anything" to supercede American ways, laws, economics, and internet management. And as long as Iraq is more or less under America's wing, this avoidance of "international anything" is good for them, too.
Unless the Iraqi's ask for "international" interference themselves, and then only if there's been an election and a majority of Iraqi's have voted that they wish to throw themselves on the tender mercies of France, Germany, Venezuela, North Korea, Syria, Vietnam, et al.
Regarding the narrow scope of the charges, I'm sure the objective is to bring the least complicated capital case possible, and get him in the ground by Thanksgiving, which I applaud.
I think you are spot on. I also think this highlights the shortcomings of the present enterprise. Such a prosecutorial tactic dilutes the utilitarian argument for Saddam's trial--documenting his crimes for posterity, catharsis for the people--and perverts the moral justification. Saddam should not hang merely because the prosecutors were successful at pinning to him the least of his crimes.
Of course, they will bring the other charges later, but the opening salvo is inauspicious by any measure but a legal one, and that is unfortunate.
And as a legal matter, I'm afraid all Iraq is doing is legitimizing ex post facto as precedent. And since this is one of the first precedents of the new Iraq, that is a bad thing. If subsequent generations of Iraqis defer to stare decisis, this could cause immense problems in the future.
Aristides
To posit law exiting ab initio without foundation in the common morality of society is absurd.
You are claiming that Law generally can be established without moral foundation and that violations and sentences can be, apparently, argued without reference to morals and norms.
You write like a law student who’s a million miles from jurisprudence.
You can post any argument here at the Belmont Club. There is no gavel to gainsay absurdities, no contempt of court rulings, no sanction at bar for pandering for attention.
You clearly know that your argument is into the wind. And there it blows.
Ultimately your reasoning would have us believe that if a criminal gang through assassination or other means achieves total control of a society, then they are no longer law breakers, but the law -- as a legal motif as against the amoral brute force reality. And by implication the assassinations and murders performed on their way to the top against the prior government – surely against the law then existent-- are to be deemed wiped clean because the criminal holds the tablet. It follows that every criminal in prison is there because he was not lawless enough, harmful enough to enslave all. True in practical terms – but for you this is a lawful construct.
jeff said--
What must the people in surrounding nations think as they witness a referendum, and now this trial of a former dictator?
Hopefully this will serve to further shake the corroded foundations of these other brutal states (e.g. Iran)...
I wish I were as optimistic. The "other brutal states" have their filters on...picture comes out looking like: evil Americans are using puppet Iraqs to get Satan's agenda done...or something like that...
Maybe we should look at al Jazeera's take on it? They were reporting the suicide in Syria the other day as the 'suicide.'
Aristedes - are your concerns limited to the ex post facto problem? would you have any problem with an Iraqi court trying Sadamm for crimes against humanity as articulated in peremptory norms (jus cogens)?
If not, do we know why that is not being done?
My God... Think it through....
Every case must be ad hoc.
To establish a standard operating procedure - codified - is to tell every other tyrant that we intend to march through the world - right now - and remake it in our image.
Further, they can see exactly what the future holds for them upon defeat. That's just great! Tell China's elite that they're next to be noosed. Talk about creating the coalition of the unwilling. You have , in one stroke, ruined diplomacy on the altar of administrative elegance.
Always keep everything ad hoc. If you want perfect order visit a graveyard. All loose ends are neatly cleaned up there.
To posit law exiting [sic] ab initio without foundation in the common morality of society is absurd.
I can't recall making this point.
You are claiming that Law generally can be established without moral foundation and that violations and sentences can be, apparently, argued without reference to morals and norms.
Again, this is entirely outside the scope of my argument. However, moral foundation is not a necessary component of law. In fact, law can contradict existing morality. Go to Nevada if you don't believe me.
Referencing morality during trial is actually prohibited under the Rules of Evidence. You can argue morality during closing arguments as a tactic, but it is not necessary.
You write like a law student who’s a million miles from jurisprudence.
Whatever my proximity to jurisprudence, it doesn't take a law student to find the prohibition of ex post facto laws in the Constitution.
You can post any argument here at the Belmont Club. There is no gavel to gainsay absurdities, no contempt of court rulings, no sanction at bar for pandering for attention.
I'm not sure if this was simply a manifesto, or whether you were describing my posts. If the former, I admire your enthusiasm. If the latter, you must explain.
You clearly know that your argument is into the wind. And there it blows.
My argument stands or falls on its own terms, whether or not it encounters atmospheric phenomena.
Ultimately your reasoning would have us believe that if a criminal gang through assassination or other means achieves total control of a society, then they are no longer law breakers, but the law -- as a legal motif as against the amoral brute force reality.
Actually, yes. Under what law would they be tried?
And by implication the assassinations and murders performed on their way to the top against the prior government – surely against the law then existent-- are to be deemed wiped clean because the criminal holds the tablet.
Not wiped clean, but obsolete.
It follows that every criminal in prison is there because he was not lawless enough, harmful enough to enslave all. True in practical terms – but for you this is a lawful construct.
A shrewd but correct observation on the practical side. Legally, they are in prison because they broke an existing law and were accused, tried, and sentenced in reference to that law.
I don't believe that it is immoral to possess marijuana. Yet 700,000 people a year are arrested for it, not because it is immoral, but because it is illegal.
If you want to commit an act that is currently illegal, it is certainly a way forward to take over your society and impose your own laws. But again, this is outside the scope of my argument, the absolute obverse of my point.
Ex-dem,
Ex post facto was the extent of my argument, simply because it is foundational in American jurisprudence.
Iraqis could try him under universal law, but I think you would run into the same critique because the Iraqis are using an extension of state power--a court of law--to punish a citizen of Iraq using laws that were not recognized as controlling when they were violated.
There is a natural law argument to be had, but that is quite different from the positivist position that I am taking.
And just to be sure, this is an American criticism. If Iraq's Constitution allows such things, or subscribes to the rule of unwritten natural law or willingly imposes international crimes against humanity ex post facto, so be it. Our's doesn't.
Aristides (finally spelled it right) -
you say: ".. using laws that were not recognized as controlling when they were violated."
Were they not? were not crimes against humanity - just like piracy -not recognized under customary international law when sadamm was doing his worst? I think they were.
I posted some interesting perspective on the "Doctor's Trial" involving "human medical experiments" by the SS, one of first in a set of 13 trials at Nuremberg (on the prior thread). It describes the defendants, the criminal complaints, the prosecution and the time line of the case - down to the final appeals and executions. The case study was conducted at Harvard (Wretchard's old stomping ground). The case is similar to Saddam thugs using humans for gas experiments and so forth.
I note two things: 1) The time to bring the defendants to trial was less then the time it took to bring Saddam to trial. 2) Once the complex 'Doctor's Trial' began it moved smoothly day-by-day to conclusion.
see: ledger said... doctors trial, 90% down thread
Ex-dem,
I should have been more precise. I meant controlling in the sense that they governed Iraq. Iraq did not ennact or ratify these laws while Saddam was President.
Verc: Aristides, the Iraqi government did inherit the Saddamite monetary debts when it inherited the Iraqi people. The Saddamite regime is still liable to the Iraqi people, which have invested their legitimacy in the Iraqi government.
This is true, but it is not what he is being charged with.
It's the same contract that makes murder a capital offense and the state the plaintiff in murder trials; the compact between the citizen and the state.
I don't subscribe to the social contract theory of government, though I can see how, if you do, this would make sense.
Saddam and the Baathists still present a danger to the Iraqi people and state and so the Iraqi government would be remiss in not defending itself and its charges from the danger.
Again, this is true, but it is not how the charges are couched. The charges flow from crimes committed in the past, some in the distant past, not from present activity or because Saddam constitutes a clear and present danger.
In other words, it is, following the primacy of the ex-post facto 'sin,' ridiculous to let Saddam go for not breaking laws.
Not let him go. I would never have given Saddam to the Iraqis in the first place, just as I wouldn't give a murderer to the family of his victims, but now that they have him the Iraqis must bring him to justice. Trying him may be the least worst option left, though a referendum on his life would be my choice. Ex post facto can be codified later if need be.
Besides, 'ex-post facto' only applies in a continuous regime, which is not what we have here. It is quite reasonable, moral, and legally consistent to punish enemies in, say, a civil war, even if the jurisdiction of governments is dubious at best.
We just began a continuous regime that must begin to build precedent. This is not a precedent that will serve them very well in the future, methinks. But again, they can amend the Constitution if they are so inclined.
Chomsky, who is morally blind, is applying gross moral equivalence analysis without consideration of the motives and constraints on the actors. To him, the shooter-policeman is equivalent to the shooter-thief.
"the pretties, prigs and prissies of Higher Consciousness"
-c
what a great phrase,c.
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