Monday, December 12, 2005

PajamasMedia blogjam on Saddam trial

I am going to be joining a Pajamas Media blogjam at 3:00 pm EST, on the topic of the Saddam trial. One of the questions put in the opening statement is whether this trial is one of those pivotal "trials of the century," or something different or something less. Well, here are some initial reactions, which I'll try to incorporate into the blogjam discussion.

First, the place for news and analysis of the Saddam trial is Grotian Moment, a blogsite that links to the latest trial news along with expert analysis by a number of leading experts with quite varied points of view.

Second, what is the importance of this trial? It is very important for the Iraqi people, of course - I don't think anyone would really dispute that, although perhaps a little less so now that Saddam's crazy sons are also dead. But how important is it for the rest of the world? I would like to think that this trial is not just important because of justice meted out to one of the world's most appalling dictators, but that it will also serve as an exemplar into this new century. However, for a couple of reasons, I don't actually think that will be the case. Why not?

  • First, precisely because it is a local trial, conducted by local judges, using Iraqi law, and aimed at satisfying an Iraqi concept of justice. Yes, the trial process has been heavily advised by Americans and others, and yes, Iraqi law allows international law to be brought into it, etc. And I think it is absolutely right that the trial be "local" (really, more "mixed"). Nonetheless, for these very reasons, it will have less resonance as an international precedent, even if the charges heard go beyond the current narrow charges of massacre in 1982 to include such large scale acts as the 1988 Anfal campaign (which I had a small role in helping to investigate for Human Rights Watch in a mission to Kurdistan in 1992). I am very skeptical of grandiose international tribunals, with grandiose pretensions to be establishing big new rules of international law - I much favor, if the tribunal must, because of incapacity or logistics or what have you, be international and not local, the sort of mixed tribunal as was established for Sierra Leone.
  • Second, I think it will not be considered a "trial of the century" because it will not wind up establishing grand new rules or procedures. On the contrary, the substantive crimes at issue here are well covered by existing Iraqi and international law. The rules of procedure, such as allowing concealed witnesses and judges, etc., have been used in the Yugoslavia tribunal and elsewhere, and do not introduce grand new concepts. Part of the point of the design of this trial, after all, was aimed at showing that even though it was Iraqi and American design, it essentially used all the stuff found in existing international tribunals - the designers did not want to introduce new concepts, because the tribunal already had enough problems of legitimacy.
  • Third, the trial will be downplayed by the pressure groups - NGOs such as Amnesty International and Human Rights Watch - that would typically want to play up, indeed overplay, the importance of such tribunals. Why would they want to do this? Fundamentally because it is an American/Iraqi creation, and not the creation of those groups' favored mechanism of international justice, tribunals created by the Security Council or UN system. I don't think it matters as much as it should to the international human rights organizations whether the trial is procedurally fair or not - what matters more than it should to those groups is that justice in such cases as Saddam's be a monopoly of international organizations. It is a worship of internationalism for its own sake, not a pursuit of justice, and as such is a very disturbing trend for international human rights monitors who prefer a certain kind of internationalist procedure to substantive justice if it happens to be meted out by nation states, or at least involves the United States. This is where the charge of "victors' justice" will come in - so long as the United States and the new Iraqi government conduct the trial, it won't really matter how fair it actually is, it will get dismissed as victors' justice - and if the trial looks especially fair in fact, then it still will be dismissed as "well, it has the appearance of victors' justice." (What the reaction would be if Saddam were somehow acquitted? I don't know. What would the the reaction be if Milosevic were acquitted?)
  • Fourth, thinking of the Saddam trial as a trial of the century invites comparison to Nuremberg as the international trial of the century. But this makes some important historical mistakes. Nuremberg was not thought of as the trial of the century, really, until the 1990s. (I have an earlier post on the 60th anniversary of Justice Jackson's opening statement at Nuremberg on this topic.) Nuremberg was largely ignored in the decades after the trial, partly because of the Cold War, partly because Europe wasn't really interested in remembering the Holocaust, but in large part because the major point of the trial - the prosecution of the crime of aggressive war - did not survive the UN charter, which committed the use of force either to self defense and related customary international law or the Security Council. Jackson's juridification of the crime of aggressive war, which he regarded as the real achievement of the trial, did not survive long at all - aggressive war remained within the realm of international politics, not international judges. What we remember Nuremberg for today is war crimes - but those were essentially dismissed by Jackson as (correctly) stating mostly already existing law and handed over to the French and Soviets who, it must be said, had suffered more of those crimes, certainly of course than the Americans or British. Even on the topic of war crimes, even the International Committee of the Red Cross did not pay much attention to Nuremberg - it preferred, as did nearly all international law scholars on the Continent and most in the US, codified laws of war in the form of the Geneva Conventions, not judicial proceedings as the basis of law. Only later did the ICRC take the Nuremberg precedents on board.
  • There is not getting around the death penalty as being a key feature of why various international actors have refused to get involved. I think that this is cultural imperialism at its worst, myself, and shows an astonishing and cruel indifference to the views of Iraqis themselves and respect for their legal traditions, but hardly a surprising one.

Okay, time to go to ... Pajamas Media for this little blogjam.

1 comment:

Anonymous said...

Interesting exercise. I'm somwhat concerned that the time constraints precluded deep thought . . . but perhaps not. I was most impressed with your comment 13, which I think was dead on:
We have mythologized Nuremberg to mean a legal precedent against war crimes, crimes against humanity and genocide. But for the those who put Nuremberg together - Justice Jackson especially - it was supposed to be a trial not about the conduct of war, but about the crime of aggressive war.

That is certainly supportable from Jackson's statement on the subject:

The definitions under which we will try the Germans are general definitions. They impose liability upon war-making statesmen of all countries alike. If we can cultivate in the world the idea that aggressive war-making is the way to the prisoner's dock rather than the way to honors, we will have accomplished something toward making the peace more secure.

But I mostly liked the "mythology" part, which you alluded to, and probably pre-dated Jackson's involvement, and goes back to the original intent behind the international part of the tribunals:

those German officers and men who have been responsible for or have taken a consenting part in these atrocities "will be sent back to the countries in which their abominable deeds were dome in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein"; and (2) that the above declaration "is without prejudice to the case of the major criminals, whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies."

Subsequent events have caused a perception that the international flavor of the tribunal was to add fairness, which I don't believe is historically accurate. You touched on the problems with such an approach (specifically the issues of legitimacy conferred by organizations with disparate motivations), but I wish the panel had pursued it. Anyway, very nicely done . . . and a nice bonus in getting the last word! Cheers.