Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

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Tuesday, July 13, 2004
John Derbyshire raises some very worthwhile points with respect to the trial of Saddam Hussein in Iraq. Three points, in fact: whence does the court derive its jurisdiction? what law could Saddam possibly have traduced? and in what sense does legalizing the process of disposing of Saddam Hussein serve our (or anyone's) policy aims?

These are good questions to be asking. But there are some questions behind them that need asking, and answering, to tease out what is really being asked here.

Start with the first question: jurisdiction. Before we can ask who has jurisdiction to try Saddam Hussein, we must ask: who determines who has jurisdiction? There is an end to appeal in all things, and that end is the sovereign source of all authority in the jurisdiction. This, in Iraq, can be one of only three entities: the United States (by right of conquest), Saddam himself (by virtue of his Presidential office, though now deposed by force from same), and the Iraqi people as represented by the new Iraqi government. Inasmuch as the assertion or denial of jurisdiction means anything, it signifies a debate about who is sovereign in Iraq. The trial of Saddam Hussein, then, first and foremost is an assertion of sovereignty, just as was the trial of Charles I. And since the trial is taking place in Iraq, with Iraqi judges, the trial is, first and foremost, an assertion by the new government of Iraq that *it* is sovereign (or, rather, the legitimate representative of the sovereign Iraqi people).

This understanding should shed more light on the meaning of the Nuremburg Trials. They were, first and foremost, an assertion that the victors in WWII were sovereign in German territory. Had the defendants been tried by a German court, a different message about sovereignty would have been delivered, a message more similar to the message intended to be delivered in Iraq. Similarly, this understanding explicates a key meaning of the trial of Milosevic. The assertion of the right to try him is the assertion of ultimate sovereign authority. In the case of Milosevic, that authority is apparently vested in international bureaucratic bodies charged with the prosecution. Whether *this* is a good thing, I leave to another time to debate.

With this in mind, we can approach the second question. The purpose of an ordinary criminal trial is, indeed, positivistic - the trial establishes whether positive law has been transgressed. But that is surely not the meaning of the Nuremburg, Milosevic or Saddam Hussein trials - and this should be no surprise to anyone. Nuremburg, for example, was understood at the time to be a rebuke to a purely positivistic vision of the law (as, indeed, there was some notion at the time that German courts' devotion to positivism helped smooth the path for Nazi corruption of the law). The intention, in all cases, is to invoke a moral law, accessible to reason, to convict those guilty of gross and norotious evils.

Understood in this way, some of Derb's objections should be answered. If we're not talking about positive law, really, then, we don't need to debate *which* positive law was transgressed, or how Saddam Hussein could be prosecuted under a law he himself signed. Nor do we need to debate the justice of punishing someone under laws passed after the crime was committed. If it is just to kill Saddam Hussein by lining him up against the wall without ceremony, surely there is no injustice in killing him after the ceremony of a trial.

What, then, is the purpose of the trial? The purpose of the trial is to establish (a) the facts - that he committed the evils of which he is accused; (b) to declare that these facts are the *reason* he is being killed (assuming he is sentenced to death, as I expect); and (c) to implicate the sovereign authority by whose power sentence is passed and executed in the sentencing and execution of same.

In all these ways, a trial is different from lining Saddam Hussein up against the wall and simply killing him. There will be an official record of his crimes; this might happen anyhow, but the trial provides a formal process for this. No more debate about whether he did what it is said he did. There will be a declaration of guilt - i.e., we will know he was punished (let's assume killed) *for* these crimes, and not, for example, to cover up some more heinous crime on the part of those who killed him. And the people of Iraq will have been implicated in the moral judgement - for by their power will the judgement be carried out. To the extent that these differences serve our aims of policy, a trial serves those aims.

Derb raises two additional objections, apart from the concern that the trial is not a true legal process and so is, in some profound sense, illegitimate. They are: that Saddam Hussein might actually get off, and that war is a matter of self-defense, not justice, and so we want to kill our enemies, not try them. They are both good points. Here are my answers.

To the first: for Saddam to get off, one of three things would have to be true. Either the evidence would have to be sufficiently equivocal as to his culpability in the known crimes of the regime that Iraqis would be unconvinced of his moral guilt. Or Iraqis would have to be sufficiently sympathetic to the fallen regime, and antagonistic to its replacement, that they deny the authority of this court as the representative of the sovereign people to execute judgement on Saddma Hussein. Or Iraqis would have to be incapable of sufficient moral reason to deem Saddam Hussein's behavior to be grossly evil.

In all these ways, the trial is a test of the regime and of the Iraqi people, a test of moral reason, a test of legitimacy, and a test of will. No, we should not undertake to stage such test if we don't expect to pass, because failure is disastrous. But the Iraqis will be tested thusly at some point, and if not now, when?

Moreover, killing Saddam in his spider hole would not obviate these tests. Would the evidence of Saddam's guilt be less equivocal if we had killed him upon capture? Would Iraqis be less sympathetic to him, and more friendly to his replacements? Would our authority in killing him be deemed more legitimate? I don't see how one can answer yes to any of these questions. To the extent, then, that the trial serves any purpose other than simply making Saddam cease to be, it serves these purposes better than summary execution upon capture would.

Thus, to Derb's second point. I agree totally that our aim is to kill our enemies, and not to bring them to justice. But this is equally true up and down the chain of command; we do not set forth in war to acquire POWs but to defeat the enemy, generally by killing him. Nonetheless, if the enemy falls into our hands, we are bound to capture him and treat him according to the laws of war, not to summarily execute him because it would be more convenient. Similarly, while there is nothing wrong with seeking to capture Saddam dead or alive, nor even with having a preference for him dead, if delivered alive it is not reaonsable to say that we should simply have killed him. Once captured, he is no longer an enemy trying to kill us, and if we are to dispose of him it must be by some other means than summary execution. There must be a process of some sort. His current trial is one such; trial by the Hague would be another; by a Kuwaiti court another; by an American court another.

Derb makes the analogy to Romania, and the summary execution of the Ceaucescus. Has the procedure by which Romania was rid of these odious two tainted the new regime? Well, if I recall arguments about this very point five and ten years ago, to some extent yes. Romania was considered - by Romanians as well as outsiders - to have handled things rather less well than the Poles, Czechs, Russians, Germans and others with ex-dictators to dispose of. Certainly it is not something the Romanians are proud of. But let me make another analogy: to Iraq in 1958. The king, prince regent and much of the royal family of Iraq were murdered as part of a coup in a spectacularly bloody massacre. Does Derb think our interests - or the Iraqis' - would in any way be served by a repeat performance with Saddam on the receiving end?

Saddam Hussein deserves no compassion, on our part or on the part of Iraqis. Nor is he *entitled* to due process or the other protections of positive law. He is condemned for gross evil, and he is faced with the moral judgement of his people. They - and we - need to follow some formality for their - and our - own sakes, not for his; for the sake of moral clarity and to keep that country and ourselves from tumbling into the abyss.