We're fortunate to have such a distinguished group. Saddam's trial --it's circumstances as well as it's circus-- is the news hook. The deep story is "the rule of law." When we discussed organizing a panel on "the rule of law" David Corn dropped me a note that said "Who's against it?" The "aginners" are out there, but they're not on this panel.
How do we implement it? How do we foster and encourage it? Is "the rule of law" essential to security on the planet? To creating and spreading wealth?
A couple of weeks ago I wrote a Creators Syndicate column that concluded with this line: "The democratic judicial process holding Saddam accountable for his murders provides a stark, confidence-raising contrast with Saddam's regime and al-Qaida."
Well, Nuremberg was half a century ago but Saddam’s trial is taking place now and I said once that it is the trial of our time.
Milosevic was Europe’s last dictator to be tried while Saddam is the first dictator in the Middle East, Arab or Muslim region to be put to trial. Don’t you think this marks the beginning for a new era-rule of law in a lawless region-and at the same time marks the end of another one?
Rule of law is absolutely essential for anything we want to do in Iraq, the Middle East, anywhere else.
Nobody will invest a penny without rule of law. We have had it for so
long in the English-speaking countries that most of us haven't the
slightest idea what a country with weak rule of law is like. Take the
story of the murder of Thomas a Beckett. Most people miss one of the
key points, which is why the King had to resort to such
circumlocutions and shenanigans to have an inconvenient critic killed.
It is because even back then, the King was not above the law. He
might have somebody killed, but he would have to skulk around and
subvert the law, and everybody knew it.
As to how we can encourage rule of law in Iraq and elsewhere, that's a
long discussion which we can save for the Jam. My points would be
two; one is that this is something most Iraqis want, the're just not
sure how to get it. The second is that Iraq had a reasonably workable
civil code back in 1958, which was substantially more Westrnized than
pure shari'ah, and which was generally accepted by the people of the
land. I don't think it was ever fundamentally revised. If the Iraqis
could just get that functional again, and strip off the totalitarian
layers added by subsequent regimes, that would probably provide quite
adequate rule of law.
Okay, I'll kick off with a quote from this account of the Nuremberg trials and ask if it set us off on the wrong foot:
'Churchill reportedly told Stalin that he favored execution of captured Nazi leaders. Stalin answered, "In the Soviet Union, we never execute anyone without a trial." Churchill agreed saying, "Of course, of course. We should give them a trial first." All three leaders issued a statement in Yalta in February, 1945 favoring some sort of judicial process for captured enemy leaders.'
Did Nuremberg establish an unfortunate precedent? Or are we doing the right thing?
Omar-- I agree with you. We're in a world that is technologically more complex than the post-WWII era. Democracies police terror, they don't empower it. Poverty doesn't cause terrorism, but it does seed disenchantment. As Jim Bennett said, no one wants to invest in a place that lacks honest laws.
One important note I think I need to mention, Iraq had succeeded in bringing a tyrant to trial and it is just a matter of time till justice is served. The question now, will we be able to bring those who are currently immune (and I mean clerics) to a court of law incase they break the law.
I think this has to be the next step we Iraqis need to start working on..
Austin:
I think most Iraqis would have been happy with an immediate execution but that would damage the reputation we’re trying to build for Iraq and in the same manner it would be bad for America.
The judge or more generally the proceedings might seem “soft” and slow.
In my opinion Saddam doesn’t deserve this softness but it shows that Iraq is making its first steps towards creating a judicial system that is one of a kind in the region.
Austin: Churchill came to regard the Nuremberg Trials as a good idea. Nonetheless, the Nazis were exceptional. Do we have mission creep here?
I've heard some people say so. I'm inclined to think that the cathartic effect of the Saddam trial -- and the testimony of victims there -- will be beneficial in spite of any carnival-like aspects now. The Milosevic precedent offers a cautionary tale, though. Of course, it may be a cautionary tale on *how* to run a trial, as opposed to whether.
It's important to remember that Nuremberg means something very different today than it did when it took place. 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. The idea that aggressive war would be a matter for judges to decide did not last the establishment of the UN - which committed the question of war over to self defense in customary law and the Security Council. Nuremberg means something quite different today.
In the exchange Glenn quoted above: 'Churchill reportedly told Stalin that he favored execution of captured Nazi leaders. Stalin answered, "In the Soviet Union, we never execute anyone without a trial." Churchill agreed saying, "Of course, of course. We should give them a trial first., it's pretty clear that "trial" has two different meanings in Churchill's and Stalin's minds, respectively. This was one of the problems with the Nuremberg trial, that the four judges represented three substantially different approaches to law, so that any decision had to find some common ground from which to act. The guilty parties there were so obviously guilty that in most cases this was not a problem, but in less obviously clear cases, it would be a major problem. The first requirement of justice is that it be perceived as just within the jursidiction of the court. At a national level, this can be done; at wider than the national level, it can become difficult. This is one reason why I'm happy that Saddam is being tried in an Irqi court.
My concern re the Saddam trial is whether it began before a crucial element of the rule of law was established: security. Can you have a decent trial--if that's what you are aiming for--when lawyers are being killed, for instance?
The Milosevic "precedent" must be avoided -- endless posturing, endless complaints, endless digressions, interminable trial.
Some circus, however, is unavoidable. A trial is a drama, it does not have to degenerate to Hollywood show (OJ). You darn well know Ramsey Clark was going to show up. I know I threw Omar a soft pitch, but part of what Iraq is up to is "showing"-- as in demonstrating change.
One of Mesopotamia's all-time bad guys is in the dock, gentlmen.
I don't think that the Saddam trial will turn out to be that memorable - though it ought to be - for at least a couple of reasons. First, precisely because it deliberately being conducted as a "local" trial, under Iraqi law and legal concepts - it will inevitably have less resonance as an internaitonal law trial. Second, the crimes at issue are well established and the procedures, even though not an international tribunal, have been carefully drawn from international tribunals so as to create as little controversy as possible - with the result that it aims at not breaking new international legal ground. Third, many of the pressure groups normally in favor of this kind of anti-impunity trial are not happy with a non-international tribunal, and one with the death penalty, and so they have both not cooperated with it in providing evidence and support and have actively withheld the legitimacy that comes with their approval.
And there are plenty of stories out of Iraq that sugest that the trial of Saddam Hussein--a murderous thug who deserves no consideration--is inflaming the sectarian tensions that already threaten the fragile political culture in Iraq. Is putting him on trial more important than establishing security and stability? Or can one argue that such a trial will bring such benefits?
And there are plenty of stories out of Iraq that sugest that the trial of Saddam Hussein--a murderous thug who deserves no consideration--is inflaming the sectarian tensions that already threaten the fragile political culture in Iraq. Is putting him on trial more important than establishing security and stability? Or can one argue that such a trial will bring such benefits?
I think the security situation complicates the proceedings of the trial quite a bit but it doesn't mean we can't hold the trial.
It is more like a closed cycle that one will eventually need to break from one part or another and I think putting Saddam to trial is the best point for breaking the cycle.
Of course the other recent example was Romania, where Ceaucescu and his wife were executed after a very hasty and pro-forma military trial. That didn't look very good, and many people suspected it was done to prevent Ceaucescu ratting out his accomploces. On the other hand it brought very immediate closure to a very nasty and painful period in Romanian history.
On the whole it is probably better that Sammad is being tried in a reasonably transparent process.
David-- Good point. However, the Rule of Lawin and of itself provides a component of security, ie, expected standards.
When I was researching my column on Saddam's trial I found this Martin Luther King quip in an dictionary of quotations: "It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important."
Anderson's comments seem to suggest that there will no "big bang" from the trial. So then is it worth it at this particular point? Would it have been better to haul Saddams sorry backside out of Iraq for imprisonment and trial elsewhere?
David, one thing that concerns me among the human rights community is how it urges in so many other situations that justice and attacking the culture of impunity must take first priority - trials and so on no matter what the risks to fragile peace and security in post conflict situations - but then suddenly take the opposite tack here re Saddam. I think it's inconsistent.
David: It's interesting. A major part of the Iraqi insurgency consists of Ba'athists who are really engaged in a drawn-out campaign for amnesty. I note that they seem to be splitting with Al Qaeda now, so it seems as if the Saddam trial may be having positive effects. Austin, you know more about this angle. Any comments?
Big bang internationally shouldn't be the point, whether with Saddam, Milosevic, etc. Part of the reason it won't be a big bang is because various groups that, under other political situations, would have pushed a big bang, suddenly don't want to see one, in large part because - HRW, Amnesty International, etc. - have a preference for justice that is international for its own sake as much as it is about justice. they do not want to legitimize this trial, for reasons that, in my view, have very little to do with substantive jsutice.
Since the trial is just getting under way now, perhaps it would have been best to have Saddam fester in a jail until a new government was fully installed and then that government could have decided to how and when to bring Saddam to trial. I hate to agree with anything Saddam has said, but hasn't he argued that the rules for this court were partially written by the CPA. I admit to not being an expert on this point. But letting the Iraqis decide what to do would have hardly been any violation of the RUle of Law.
Again, I am fascinated by the liberal inversion today - what began as the mantra, no justice, no peace - well, today, suddenly the argument, no peace, no justice. I myself am agnostic about the relationship - sometimes it works one way, sometimes the other, and sometimes together, but there's something peculiar about the sudden flip.
David: I agree. There is an argument for having had a speedy trial of Saddam -- or no trial at all -- but we're past that point. Arguably it would have been better to have waited a few months, having waited as long as we did.
That said, I don't feel that any actual injustice is likely to be done if Saddam is convicted under current rules, and he would call the proceedings unfair regardless.
The posturings of HRW, et al., meanwhile, merely serve to undercut their legitimacy, for the reasons that Prof. Anderson notes.
Glenn-- I think the trial is an overwhelming positive for Iraq and Iraqis -- it may not sit well with some potentates in the Middle East (and elsewhere) but so what.
Saddam's trial may in fact have a unifying effect. Iraqis from all regions, all sects, all ethnic groups suffered from his tyranny. Before he fell the harshest Iraqi critics of Saddam I knew personally were Sunnis; all exiles, of course, but all anti-Saddam. They blamed his tyranny for destroying the country.
See Jim Bennett's comment about Iraq's civil code prior to 1958. Tyranny impoverished Iraq. The nation ought to be rich. Money, agriculture, water.
Kenneth,
The issue of what to do about national tragedies and genocides has bedeviled other societies. The South African experience (which emphasized reconciliation), for instance, was much different than what was done in El Salvador with the Truth Commission (which emphasized revelations about the secret past). Differnet situations might require different takes. I'm actually being a pragmatist here. The bottom line is that Saddam Hussein is going to end up dead or caged for the rest of his life. But how that happens may have better or worse consequences--or mayne bone at all, Glenn. My bet is that the inusrgents are not affected much one way or the other by this trial
Kenneth, would it have been better or worse from the standpoint of justice, and the appearance of justice, if (supposing the July 1944 officer's plot had succeeded) Htler's cronies had been tried before a Wehrmacht courtmartial and shot by a German firing squad? I'm not trying to make an exact analogy between that scenario and Saddam's trial, but there is the questiion of whether an international tribunal is considered preferable or more just than a national trial in cases of genocide, etc.
Frankly speaking, I think if Saddam is found guilty (and he is!) and executed within the next few months, we will probably then witness a good reduction in violence levels, especially violence that comes from his loyalists because they will lose the "symbol" they're fighting for.
However, the outcome of the trial will most likley have no effect on the activities of al-Qaeda in Iraq.
What I mean by that last comment is to ask whether realists are right in raising their eyebrows at the idea that the attempt to instill democracy in Iraq will have a positive impact in winning the war on terror.
Jim: I once was told by a senior British military lawyer, "The Nuremberg trials were a lovely hood ornament on the ungainly vehicle that liberated Western Europe, but they were not a substitute for D-Day."
I think that instilling democracy and the rule of law in Iraq is meant to do several things. First, to scare the crap out of other Arab despots in the area. Second, to demonstrate that there's a more progressive alternative than Islamist violence. Third, to promote democracy even beyond the Middle East (e.g., China).
That's a project that goes well beyond Saddam's trial, of course, and in fact Saddam's trial is fairly peripheral to that goal except in the short term.
David makes a very important point, and I'm glad he made it. There is no "one size fits all" path to reconciliation. I attended an Episcopal Church seminary discussion a couple of years ago that included a presentation by a lady who had been on the South African Truth and Reconciliation commission. In Q&A one fellow asked (paraphrasing from memory) if you needed a legacy of British or western law, or the structure of such law, to pull of a Truth and Reconciliation commission.
Iraq needs a reconciliation process. Saddam's trial may be part of that-- for one thing, groups acknowledging shared suffering.
I admi it: I, too, have no concern about justice for Saddam. The issue is how a society decides--for itself--how to handle such matters. My fear is that the current trial is more of a muddle than anything else and might be exacerbating what I believe is the most pressing challenge: the rising sectarian conflict....As for the larger problem, how does rule of law--in the abstract--lead to a win in the war of terrorism, if the main problem is a non-state group that operates coverly in many countries? I am asusming there were laws in Afghanistan at the time al Qaeda was based there. And Algerian fundamentalists--who may or may not have been sympathetic to jihadists--nearly won an election there in the late 1990s. But the military canceled the election. Which might be read by some as a positive development in the struggle against Islamic extremism..
Glenn: I agree that this is the strategy - and I regard it as a genuinely grand strategy, in the military-political sense, a recognition that the realist project of pure stability had undermined our security. I am entirely and wholly committed to it - this form of idealism is, to my mind, the new and necessary realism. Count me in on the Condi doctrine. At the same time, it is very important to recognize that this is a strategic bet - it is not written in the sky that because democracy is a moral good over dictatorship, that must, because it is moral, lead to our greater security.
James,
Answering your question (though you didn't address me); I believe that many Iraqis would not welcome an international intervention when it comes to the trial.
Toppling Saddam wasn't within thier reach but putting him to trial seems quite doable.
And I'm an all-politics-is-local man (well, most of the time). I don't bbuy the argument that putting Husein on trial or killing him will do much to demoralize or dis-incentivize (as an economist woul say) much of the insurgency. Those folks must know that Saddam ain't going be leading them any time in the future. I assume they are fighting for other factors--essentially for their piece of the pie. And that is unaffected by Saddam's whereabouts or existence (continued or not).
I think it's important to remember that the Middle East in general has had much of its civil society degraded by dictatorship and war over the past fifty or sixty years, somewhat like Eastern Europe and the FSU but worse in some ways. They are not building from zero, but they are in some senses going back to the departure point and trying to reinvent where they might have been without that detour. The question is are our efforts helping that process? My sense from the on--the-ground reports is that on the whole we are. I'd be interested in Omar's take on that.
I'm with Kenneth on the democracy-and-security front. Democracy is a fine thing. But it may not necessarily lead to greater security (for us, that is). What would happen if there were open elections in Saudi Arabia? It's possible--a la Algeria--that fundamentalists could win or gain a pretty big chunk of power. How would that affect US security and oil prices and availability?
Jim-- Let's pick up on your thought about the Rule of Law being essential to actually winning The War on Terror. Understand I dislike the moniker "War on Terror" very much but that's another discussion.
We live in a world characterized by "technological compression." That means we share diseases almost as readily as we share information. And we share each other's problems. Religious wars and tribal wars are bad enough, but when hardliners get ahold of WMD, we risk sharing the mega-casualties as well.
Here's a quesiton that's either a softball or a beanball: Does the Rule of Law -- democratic justice-- increase security?
Omar: I am not in favor of the death penalty in US domestic circumstances, not because I think it unjust - it is often just - but because I dont' think it is a power the state should have. That said, I think it quite astonishingly hard-hearted and unjust for folks from outside Iraq to essentially say, if you want us to say that your trial of Saddam is internationally legitimate, then no death penalty.
We in Iraq realize that we woldn't have been able to bring Saddam to a court of law without the enormous efforts of the US and allies.
So the answer is definitely YES, you are helping in the process of transformation of the middle east from a totalitarian to a region ruled by law. Slowly though surely.
I think strengthening civil society increases securoty, and the rule of law is a critical part of strong civil society. It's also a precondition, so making the court and police systems work (even imperfectly) is one of the first things you do. But if it's the only thing you do it almost certainly won't be enough. Rule of law, work ethic, public service ethic, trust in people beyond your kin and clan -- all of these need fostering.
Regarding Austin's question, I think I covered part of it above. But open and just societies can provide terrorists more cover and running room perhaps than police states. You know I'm not advocating the latter over the former. But given that al Qaeda and its copy-cats have beefs that are deeply rooted and at odds with civil and democratic society, I don't know if y ou can claim that more democracy in, say Egypt, will make it harder for such outfits to strike at the United States and the west. Or do you want to argue that such actions wll dry up the well for al Qaeda terrorists? Perhaps. But it seems to me, Austin, you cannot make a direct and black-and-white correlation between rule of law and security--if we're talking about OUR security and THEIR rule of law.
Kenneth: I agree on the death penalty (I've been pushing the Corey Maye case lately in the U.S.) but Saddam is hardly a typical defendant, and leaving ex-dictators alive poses a whole different order of risks.
I can't help but feel that opposition to the death penalty from international human rights groups is often just a way to snipe at the United States, not least because they make far more noise about executions in the United States and its allies than, say, China. But then I don't think that the human rights community has done a very good job of husbanding its credibility.
Those people do not know what Iraqis hade been through when Saddam was in power, therefore they do not realize how important it is for Iraqis to see Saddam executed.
From an Iraqi point of view, execution-and nothing lesss than execution-IS justice.
As I said earlier, I think it is a bet. I regard it as a morally necessary bet, and I regard it in the Middle East today as the best bet that can be made in the circumstances. I am wholly committed to it. But it is a bet - it is a little like arguments that David Rieff and I once had with someone from Human Rights Watch, which had just written a report arguing that because human rights law said there must be justice done for human rights crimes, the attempt to forget about those crimes would inevitably lead to resurgence of war. Maybe that's so and maybe it's not - but the HRW person was essentially arguing that its moral position dictated how history must go, and that seemed quite unsupportable. I believe in this historical bet - but there are no certainties just because I think it is morally right. On the other hand, the unseemliness of liberal idealists suddenly discovering their realist side, and encouraging a hands off attitude toward the world's worst dictators - well, it has made me doubt their moral seriousness, when as soon as concrete proposals were made to act on a combination of moral principle and interest, well, suddenly the idealists start backing, backing, backing away ...
I'd leave the death penalty decision to the new government--if one forms. But I would certainly allow people to criticze the decision. As for Ramsey Clark, who knows?
Thhis goes for David's comment about democracy and securty as well. democracy is more than majoritarianism; otherwise why would southern segregation have been wrong? It's just one part of a civil-socoety fabric. So I'm not neccesarily for elections if no other aspect of civil society is in place. probably functioning reasonably fair courts come first.
Omar: I spent several months for HRW digging up 1988 Anfal victims in Kurdistan after the first Gulf War. I have in my basement the tail fins and casing of a chemical weapons bomb dropped on a Kurdish village. When I say that I don't think this trial will cause a big bang internationally, that does nothing to diminish its moral importance on its own terms.
The time for exile for Saddam was sometime before April 2003. I'm in favor of exile for these kinds of criminals if it saves a war. But to have the war and then let him walk? That's hardly an incentive for the next guy.
David -- I do not disagree with your caveat. One "large shot" (as in critical jibe) at our discussion is the fact we see democratic ruole of law as being superior. Someone might say, gee, you gents are actually pushing the superiority of British-type legal systems.
Note the Brits didn't always have it. They bled a heckuva lot to get there.
One important aspect of the trial is the message it sends to others. The message sent by the rather inept response to Milosevic probably caused us problems with Saddam.
Totally agreee, gents. Imagine the conspiracy theories. "Rumsfeld let Saddam go into exile as a pay-off for buying weapons" etcetera.
Saddam needs to be tried by Iraqis, using Iraq's new, emerging, imperfect, but democratic legal system. Saddam's getting his say. His arrogance, however, marks him as the clown he is.
Remember the term "cult of personality"? Hitler and Stalin were 20th century practitioners of self-worship and state terror. Saddam managed to keep his franchise until the early 21st.
Certainly the Milosevic trial has not caused dictators sleepless nights - and televising it to Serbia has had very bad results, as M. has played to the home crowd. The Saddam trial has very big television risks, too.
By the way, I wanted to mention that the single best, one stop place for information about the Saddam trial in English is the group blog Grotian Moment, at http://www.law.case.edu/saddamtrial/ - with many experts of many different points of view. It posts news of the trial and up to the minute analysis of it.
Welcome to the rule of law blogjam. This first comment is a test to make sure we're communicating.