11 posts categorized "Saddam's Trial"

November 30, 2005

The November 28 hearing

A few comments about the hearing last Monday.

1.  The Iraqi government is pressuring the Iraqi Special tribunal to speed up proceedings.  The press treats this as a case of politics illegitimately attempting to influence the course of justice.  Maybe so, but the opposite inference is equally plausible.  It may be that, given politics in Iraq, the tribunal is proceeding too slowly because the Iraqi judges are afraid of offending foreign opinion or simply because they place too much weight on the technical requirements of their job.  If a constitutional settlement must await the outcome of the trial, then the longer that the trial continues, the more people will die in the insurgency.  And as much as the West loves legal process, the Iraqi public might have trouble understanding why such a simple case should take such a long time to resolve and wonder whether they really want to cast their lot with Western style legalism.

Continue reading "The November 28 hearing" »

November 22, 2005

Stay the Hand of Vengeance?

The Nuremberg trial of major war criminals began sixty years ago yesterday, and so quotations of Robert Jackson’s famous opening statement are obligatory.

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

It must be remembered that the tribunal was charged with enforcing the London Charter, which had been created by the victors fifteen months earlier.  The victors had had to decide what to do about Germany.  One seriously considered proposal was to convert it to an agrarian republic.  Another possibility was to disarm it, demand reparations, and otherwise let it go about its business.  Or one could choose any point in between.  The eventual decision, embodied partly in the London Charter, represented a midpoint.  One could not shoot or starve everyone in Germany; that would just create a never-ending administrative hassle for the rest of the world, a Sudan or Afghanistan in the heart of Europe.  Nor could one let Germany go about its business, though that was the usual postwar practice during the preceding century.  Germany remained too dangerous and vast populations cried for vengeance.  The midpoint solution avoided two dangers – the danger of a united, powerful, and resentful Germany (as existed after World War I) and the danger of anarchy that would spill across borders.

Continue reading "Stay the Hand of Vengeance?" »

November 13, 2005

Is Bush a War Criminal?

One sometimes hears the argument that the Saddam Hussein trial is unfair because Bush is not also being tried for war crimes.  The argument has two steps: (1) Bush is a war criminal, or at least should be indicted and tried for war crimes; and (2) Saddam’s trial cannot be fair unless Bush is also tried.

There is something like a system of international criminal law, most clearly embodied in the Rome Statute for the International Criminal Court, which, however, does not apply to the United States because the U.S. is not a signatory.  International criminal law has also been applied against leaders and officials of the successor states of Yugoslavia, against some of the people responsible for the genocide in Rwanda, and in a handful of other cases, but at the instigation of the UN security council, of which the U.S. is a veto wielding member.  Many people also think that international criminal law is binding by force of custom.  I will assume that this is true for the sake of argument, though I have doubts about  whether the scope of customary international criminal law, so understood, would cover much of significance.

Continue reading "Is Bush a War Criminal?" »

November 03, 2005

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.

Continue reading "A Grotian Moment?" »

October 27, 2005

Should Saddam's Trial Be Fair?

Human Rights Watch lists the following concerns about the fairness of Saddam Hussein’s trial:

• No requirement to prove guilt beyond reasonable doubt. 
• Inadequate protections for the accused to mount a defense on conditions equal to those enjoyed by the prosecution. 
• Disputes among Iraqi political factions over control of the court, jeopardizing its appearance of impartiality. 
• A draconian requirement that prohibits commutation of death sentences by any Iraqi official, including the president, and compels execution of the defendant within 30 days of a final judgment.

Trenchant criticisms of this argument and related fairness concerns can be found here and here.  But although these authors cast doubt on HRW’s particular claims, they do not refute the underlying concern that animates these claims.  This concern, expressed as a question, is, What does fairness require?  Why might we think it necessary for Saddam to have a lawyer, or an opportunity to testify, but not, say, to have a jury of his peers?

Continue reading "Should Saddam's Trial Be Fair?" »

October 23, 2005

The Death of Sadoun al-Janabi

Does the slaying of Sadoun al-Janabi, one of the defense lawyers in Saddam’s trial, show that the decision not to use an international tribunal was a mistake?  A New York Times article (available here) answers this question with a “yes” (albeit, in journalistic style, by implication):

The execution-style killing of a defense lawyer in the trial of Saddam Hussein and some top associates ... renewed doubts about whether it is possible to hold a fair trial in the midst of a war that has spurred a wave of revenge killings against people linked to Mr. Hussein....

Many Western legal experts and rights advocates have argued that Mr. Hussein should have been tried before an international court, or in an Iraqi court with a strong international dimension. But the Bush administration and its Iraqi political allies rejected that in favor of an Iraqi tribunal sitting in Baghdad, partly because an international court would not have the option of imposing the death penalty, which many Iraqis believe is the only fit punishment for Mr. Hussein.

The story implies that the assassination of the defense lawyer shows that only an international trial of Saddam Hussein could have been fair, and that the Bush administration was willing to do without fairness in order (“partly”) to ensure that the death penalty will be imposed.

Continue reading "The Death of Sadoun al-Janabi" »

October 19, 2005

Political Defenses Then and Now

October 19, 2005:

He was instructed by the judge to stand and identify himself for the purposes of the trial, but the grey-bearded figure, with his thick black hair combed stylishly to one side, was not having any of it.
He buttoned up his jacket and declared: "Those who fought in God's cause will be victorious... I am at the mercy of God, the most powerful."
"You are to give your full name to establish you identity to the court," the judge said.
"Who are you? What does this court want?" the defendant challenged.
"I don't answer this so-called court, with all due respect, and I reserve my constitutional right as the president of the country of Iraq.
"I don't acknowledge either the entity that authorises you, nor the aggression, because everything based on falsehood is falsehood," he said.

Sound familiar?

January 20, 1648:

The Charge being read the Lord President replied:

Lord President. Sir, you have now heard your Charge read, containing such matter as appears in it; you find, that in the close of it, it is prayed to the Court, in the behalf of the Commons of England, that you answer to your Charge. The Court expects your Answer.

The King. I would know by what power I am called hither. . . . by what Authority, I mean, lawful; there are many unlawful Authorities in the world, Thieves and Robbers by the highways: but I would know by what Authority I was brought from thence, and carried from place to place, (and I know not what), and when I know what lawful Authority, I shall answer: Remember, I am your King, your lawful King, and what sins you bring upon your heads, and the Judgment of God upon this Land, think well upon it, I say, think well upon it, before you go further from one sin to a greater; therefore let me know by what lawful Authority I am seated here, and I shall not be unwilling to answer, in the meantime I shall not betray my Trust....  Let me see a legal Authority warranted by the Word of God, the Scriptures, or warranted by the Constitutions of the Kingdom, and I will answer.

Continue reading "Political Defenses Then and Now" »

October 18, 2005

A Jujitsu Defense?

Human Rights Watch has issued a report expressing concerns about the fairness of Saddam’s trial.  The report makes some useful points but otherwise is a triumph of the legalistic mentality over pragmatism.  Whether Saddam is executed or imprisoned for life, the outcome will be (substantively) fair, regardless of whether the trial is procedurally fair.  The only possible unfairness would be an acquittal or short sentence.  To be sure, the trial should be procedurally fair, to the extent that logistics, politics, security, and administrative convenience permit.  But procedural fairness does not exist in a vacuum; it must be weighed against other considerations.  HRW-style legalism is what led to the Milosevic trial, which has been dragging on for almost four years with no end in sight.  If procedural fairness as HRW understands it requires a four year trial of Saddam, then better to do without procedural fairness.

Continue reading "A Jujitsu Defense?" »

October 17, 2005

Saddam's Trial: Charges

Unless additional charges are brought against Saddam, his trial, which begins this week, will examine his role in the massacre of more than one hundred people after a failed assassination attempt against him near the town of Najail in 1982.  He has not been charged with the massacres of Kurdish civilians in the 1980s, of the Shiites who revolted against his rule after the first Gulf War, and of his political opponents throughout his bloody reign; nor has he been charged with torture and other human rights abuses of his citizens; nor has he been charged with war crimes (including the use of poison gas) during the Iran-Iraq war and the first Gulf War.  It’s as though Hitler had been captured at the end of World War II and charged with ordering the massacre of those associated with the failed assassination attempt against him in 1944, but not with ordering the Holocaust.

Continue reading "Saddam's Trial: Charges" »

October 14, 2005

Saddam on TV

Trials are a superb source of drama because of a double tension – one, between the prosecutor and the defendant; the other, between substantive justice and legal process.  The audience does not know who will win the case, and it does not know whether justice will be done.  A standard device in literary depictions of trials is to let the reader know that the defendant is guilty (or not), and then the reader will keep turning pages in order to find out whether the defendant will get off on a technicality (confession without Miranda warnings), whether the prosecutor will overcome the technical problem (defendant takes the stand and breaks down), and so forth.  An author, screenwriter, or film producer with even modest talents can produce a compelling drama just by framing it as a trial.

Continue reading "Saddam on TV" »

October 13, 2005

Saddam's Legal Strategy

Saddam’s trial will begin next week, according to news reports, and will even be televised.  I will, from time to time, post comments on this trial, as it unfolds.  In an op-ed published two weeks ago, I argued that one danger posed by the trial is that if the judges interpret the law broadly, former Baathists, and those complicit in their crimes, will fear that they will be arrested next, and will therefore be driven into the arms of the insurgents (or more deeply into their arms, as the case may be).  The decision about who to punish and who to amnesty is really a political, not a legal, decision, and the court should act cautiously by applying the law as narrowly as possible, since it seems likely that any successful constitutional settlement will not involve the eventual incarceration of a large number of Baathists.

Today, I want to discuss Saddam’s strategy.  We don’t know what Saddam wants to accomplish: does he want to be a hero or martyr?  Does he want to justify his reign?  Does he hope to stir up such chaos in Iraq so that America will leave and he will be released?  Does he think that he can persuade the judges to declare his innocence? We don’t know the answers to these questions, but it is nonetheless useful to describe Saddam’s two main options – options that are faced by every defendant in a political trial, whether a national leader or a local anarchist.  (I discuss these issues in more detail in an academic paper.)

The main decision faced by a defendant such as Saddam is whether to cooperate with the tribunal or to refuse to cooperate.  Each approach has advantages and disadvantages.

Continue reading "Saddam's Legal Strategy" »