The trials of trying Saddam

We’ve got him! Now, what are we going to do with him? That seems to be the problem these days, as the euphoria of capturing Saddam Hussein and dealing a serious, if not fatal, blow to the Iraqi resistance gives way to the practical question of where to go from here. While it is good for Iraqis to see their former tormentor reduced to a disheveled bum, and there may be great value in the information he may yet disclose during interrogation, now that he’s been captured alive we can’t just kill him. Because that’s what Saddam would do. The whole point now is to prove that we’re not like him, and that means a trial–a trial before we kill him.

Yes, let’s be honest about this: Whatever trial is given to Saddam, it will just be a formality. No matter how fair the trial is, there’s no way he’s getting past the voluminous evidence of his atrocities against fellow Iraqis. As much as Justice Robert Jackson was correct in saying, prior to the trials at Nüremburg, that “[t]he world yields no respect to courts that are merely organized to convict,” this is a case where the world would have no respect for a court that could let this oppressor get away. The only real question is, which court gets the honor?

We could go the Nüremburg route, whereby the leaders of a deposed regime are tried for war crimes by the conquering powers–in this case, the United States. While the U.S. has one of the fairest judicial systems in the world, there would be a feeling that no American could judge Saddam fairly, regardless of the evidence. Worse, the trial would also give Saddam a chance to speak out against us on our own turf where he could more easily galvanize anti-American sentiment in those that already believes America to be an insufferable bully or Zionist stooge.
Besides, in Nüremburg the victors were themselves the aggrieved parties, putting unrepentant Nazis on trial to pay for violating the peace. Aside from Kuwait and Iran, Saddam’s crimes were mostly against his own people. We invaded not because he had committed crimes against us, but because he would inevitably help terrorists who would commit crimes in the future. We don’t have a grievance to grind, just a relief that the world is a bit safer.

Putting Saddam before the International Criminal Court is another option, but it too has its flaws. For one, why give the ICC a respectability that it does not deserve? The United States has been smart enough to not sign on to its charter because of its lack of due process guarantees and its questionable jurisdiction. So why trust it to handle the tyrants we’ve gone through the effort of apprehending?

But more important, there is something inherently odd about prosecuting Saddam for “crimes against humanity,” as the ICC would do–it presupposes that humanity, as some amorphous mass, has rights that individuals do not have. One would think that with any true tyrant, the evidence of them ordering or being complicit in the murder or oppression of their own people would be enough to convict, but no! It is humanity itself that the ICC defends. But when the ICC only requires that some governmental body oppress a single person for a crime against all humanity to lie, it becomes clear that the ICC’s core concern is giving itself some important-sounding work to do. There’s no need to inflate the magnitude of Saddam’s crimes, and there’s no reason to countenance the fuzzy notion of “group rights” in the process.

So barring Nüremburg and the ICC, we could let the Iraqis themselves handle Saddam’s trial. Much has been made in the media about the shambles that Iraq’s judicial system has been left in after decades of abuse, and I will assume that most of it is true. It would be ridiculous to expect the rule of law to sprout suddenly from a people so long neglected under the rule of one man. But the Iraqi people have the best claim to deserving satisfaction from Saddam’s trial, and they are the ones who need this chapter of their history settled. Saddam should be held accountable to the people he terrorized for so many decades, and he will not be able to claim that he has been the victim of U.S. internationalism when it is his own former subjects who are in control of the proceedings. A U.S. court or the ICC would leave the Iraqis on the sidelines, yet again denied control of their own future. Don’t they deserve the chance to start their new path by convicting the old one?

It seems to me that letting the Iraqis handle Saddam is ultimately the best option, although it would be best to wait until their judiciary is able to handle it. Until that time comes, let him cool his heels in jail while we savor our early Christmas present. There’s no rush–although every day he is alive in Iraq is a chance that his followers succeed in breaking him out and revitalizing the resistance. And if the Democrats are smart, they’ll be all for postponing Saddam’s trial. After all, not much could be worse for them in Election 2004 than to have daily coverage of prosecutors reciting the litany of abuses and terrors Saddam inflicted upon his nation, while implicitly putting Democratic foreign policy on trial at the same time.

James N. Markels is a law student at George Mason University.

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