A Grotian Moment?

Is Saddam's trial a "Grotian Moment" -- an event likely to alter the development of international law?  Yes, says the blog of that name.  Here's an alternative view.

Imagine that Saddam’s trial proceeds quickly and smoothly.  The lawyers and judges comport themselves with dignity.  Saddam does not grandstand but answers the charges.  Witnesses testify credibly; documents confirm their testimony.  No one doubts the evidence that Saddam and his codefendants are legally and morally responsible for the atrocities at Dujail, or for any of the other crimes Saddam is eventually charged with.  The trial does not exacerbate sectarian tensions or interfere with constitutional politics in Iraq.  Saddam is duly convicted and executed.

Putting aside the question whether the death penalty can be justified, a trial like the one I described would certainly be a moral success.  Saddam’s many victims would see their moral claims vindicated, even if only some, rather than all, his crimes are adjudicated.  Such a trial, by showing that national leaders can be subject to legal process even in the midst of civil disorder, would also be a legal success.  But would such a trial be a political success, at a time when a political success in Iraq is needed more than ever?  This question is more complicated, and much depends on whether one takes an international perspective or focuses on the needs of the Iraqis.

From an international perspective, people on the left (both in Europe and the U.S.) must view the trial with mixed feelings.  On the one hand, a successful trial and conviction of Saddam would advance international law by showing once again that it is possible to punish national leaders for international crimes.  On the other hand, Saddam’s trial is taking place only because of an illegal invasion, and one that has been marred by war crimes such as the mistreatment of prisoners at Abu Ghraib.  A successful trial might send the political message that unilateral use of military force can properly be used to enforce international criminal law, a message that would benefit the U.S. government, which will always be able to discover international criminal law violations in the nations it might like to invade, and discomfort the left, which does not trust the U.S. government and has long sought to subordinate the use of force to international law.

People on the right (in the U.S., mostly) must also view the trial with mixed feelings.  International criminal law makes no distinction between powerful nations like the United States and weak nations like Iraq.  If the U.S. wants to persuade the world that Saddam’s conviction justifies the American invasion of Iraq, then it must implicitly agree that all leaders who violate international law should be punished.  Yet America has for decades claimed the right to launch unilateral wars for reasons of national security, and in many of these wars there have been real or arguable war crimes that can be traced to the top.  America’s opposition to the International Criminal Court rests on the premise that American soldiers and civilians should not be subject to international criminal law without American consent – that international criminal law is subordinate to the needs of security policy.  A successful trial would at least partly vindicate America’s use of force in Iraq, but also undermine America’s claim that its own leaders are not accountable to international criminal law.

Saddam’s trial, then, can only be considered an embarrassment to both sides of the political divide.  The closest historical comparison is not the trials at Nuremberg or Tokyo, or the trial of Slobodan Milosevic, but the trial of Adolf Eichmann in Israel.  Eichmann was seized by Israeli agents on Argentine soil in violation of basic principles of international law.  He was flown back to Israel, where he was tried and executed for his role in administering the Holocaust.  The trial embarrassed the world because one could not condemn it without dishonoring the victims of the Holocaust, nor could one endorse it without disparaging the principles of international law.  Nearly everyone had an interest in forgetting about it; today, we celebrate the anniversary of the Nuremberg trial, not the trial of Eichmann.

Similarly, one cannot condemn the trial of Saddam without dishonoring his victims; and, indeed, what would the alternative to trial be?  Release is out of the question if we care about reducing the violence in Iraq, and an international trial would not eliminate the moral awkwardness because this awkwardness arose from the means of his capture not the form of the trial.  Indeed, one suspects that early supporters of an international forum for Saddam must secretly feel relieved that international judges do not have to confront the problem of how to treat a defendant whose seizure resulted from an invasion that violated the UN charter.  The problem, then, is that if one cannot condemn the trial of Saddam without dishonoring his victims, one cannot endorse the trial without disparaging the UN charter, which is at the heart of modern international law.  What to do?  The Eichmann trial provides the precedent here: an inconvenient trial that cannot be made compatible with conflicting norms of international law is best forgotten, and likely will be.

But these are problems for the international community, not for the Iraqis, who would do well to recall the reaction to the Eichmann trial in Israel, where it was a grand (domestic) political success.  The Eichmann trial marked a turning point when victims of the Holocaust could be recognized and honored rather than shunned, and the Holocaust itself became central to Israeli identity.  The trial of Saddam could play a similar role in Iraq.  It could mark the point, in historical memory, at which Iraq abandoned its authoritarian traditions and began the transition toward democracy.  Of course, the trial could be failure; it could instead provoke further violence.  But if it is a success, the trial will be of great moral and political importance for the Iraqis.  As for the rest of the world, it will be a useful even if awkward reminder that the requirements of international law and morality are not always consistent with the needs of a long-suffering people.

This originally appeared in opendemocracy.net.

Comments

[Alex]

I wouldn't assume, though, that Hussein's capture was in violation of international law. Certainly it's arguable -- but it's also arguable that it was justified by his violation of 1441 (if one can construe that resolution as being self-enforcing), or, for that matter, Iraq's continued violation of the original cease-fire agreement at the end of the Gulf War that became a UN resolution (whose number I forget). If the Gulf War was internationally legal, then I'd argue that any material breach of the agreement that ended that war automatically made further military action legal as well, even without 1441.

Anyway, I'm not 100% convinced of this argument, but I'm also not really convinced that international law exists in any meaningful form. If it does, though, then surely kidnapping someone from another country with whom you don't have hostilities is a violation of it -- but Hussein's overthrown is as clear of a case, that's all.

[Alex]

That should read "not as clear of a case"