Saddam Trial – Kangaroo Court?

A friend of mine posted on Wednseday, at a forum we both contribute to, about the opening of the Saddam Trial. He has consistently been one of the members of the forum who have opposed the Iraq War. Over the course of our correspondence I have gotten the impression that his opposition is due more to his partisan opposition to President Bush than to a consistent ideology; and from that impression, I read a question which he posted with some skepticism. Here’s what he wrote:

My question is: What’s the point of even having a trial?

Everyone here knows there is absolutely no chance he will be released alive. His objections to the legitimacy of the trial will be overruled, and he will be found guilty and sentenced to death. There is no other outcome. Moreover, he will use the trial as a stage to embarass the United States.

So what’s the point of even having a trial? Why do we need to perpetuate the illusion of fairness when the conclusion is already predetermined?

We should skip the dog-and-pony trial and go straight to sentencing. Maybe Bush should have Saddam’s head cut off and stick it on the gate around the Whitehouse.

I think it would be fair to say that, as his post went on, his visceral opposition to President Bush took over, and the post assumed a more emotional overtone. Here was my response (which I’ve edited for easier understanding outside of the forum):

So your question is really:

“Is a kangaroo court better than no court at all?”

First, I wouldn’t write this off as a complete kangaroo court just yet. Just reading [some of the other] comments indicates that there’s a chance that some bright lawyer(s) will find a way around it. They can make similar arguments, that he did what was necessary for “national stability”; although that didn’t work real well for ex-President Park Chun Doo Hwan of South Korea, or even Augusto Pinochet of Chile.

Second, is this trial going to be a fair trial? [One commenter has already]People in this thread have already begun to weigh in, and arlingtonz brought up the question of Slobodan Milosevic, whose trial could take up to 4-5 years more. I’d like to also consider the question of the Nuremberg trials, and compare them with the handling of Japanese war criminals after World War 2.

1. The Nuremberg Trials were conducted by the Western Allies, while the Soviet Union dealt with the Germans they captured rather more directly. Not all who were brought under the Nuremberg trials were actually convicted, and even then, not all who were convicted were sentenced to death. Was Nuremberg a show trial? Why or why not? What was its purpose, and did it achieve its purpose?

2. The Tokyo War Crimes Trials were conducted solely under MacArthur’s authority. Were they show trials? Why or why not? What was the purpose, and was it achieved?

3. The Saddam Trial is a trial of just one man [Note: the Iraqi Special Tribunal will be trying at least another 11 members of Saddam’s former regime], conducted under the auspices of the Iraqi government under the military protection of the United States. Is it, in fact, a show trial? Why or why not?

That brings us to a third point: the question of “why have a trial?” You posed this as the main question, but given your assumptions, that’s not the question you really wanted to ask. Still, it’s a fair question, and may help to answer the previous point, and give us a way to ascertain the trial’s effectiveness in implementing policy.

So, why have a trial? Without jumping to conclusions as to whether or not it’s a show trial, let’s list the reasons that one would want a trial (as opposed to summary judgment and sentencing).

1. The crimes alleged (crimes against humanity) supposedly supercede national sovereignty. Clear exceptions to this theory exist in the United States’ refusal to sign on to the International Criminal Court, and the failure in the past to move against the authors of the Rwandan genocide and in the present against the authors of the Darfur genocide, or even against Israel. Do these exceptions exist because of inadequate structure of the ICC, or because crimes against humanity do not, in fact, supercede national sovereignty? The United States has argued (in its refusal to join the ICC) that the problem is structural: The ICC has no clear authority, and clearly no accountability. Other structural arguments in favor of exception are pragmatic (let’s just see Arab nations try to abduct any Israeli leader and hale him or her into court), and existence of viable alternatives (some states have well-established venues for trying crimes, e.g., Israel’s trial against the terrorist settler who went into a Palestinian village and opened fire with an automatic weapon). It would seem that few serious moral arguments are made that the category of “crimes against humanity” is superfluous.

2. That leads us to venue. What would be optimum venue for a Saddam trial? EUroniks are partial to the ICC, which is their creature. But given the problems in authority, accountability, and effectiveness (if the Milosevic trial is any example), the argument would seem to be weak. Some Americans may wish to see the tiral executed as a court-martial, presumably under the auspices of the US Armed Forces. This is a weak argument in terms of accountability, and as such can undermine the authority of the body (the US military) that imparts “authority” to the court trying this case. What about a special trial adjudicated by the Arab League? It would be a court of Saddam’s peers, in a way; but one would be hard pressed to argue that such a court would allow an address of the grievances of Saddam’s alleged victims.

   The only place we’re left with, then, is Iraq, where both Saddam’s “peers” (whether you define them as tribal leaders, Ba’athists, military men, bureaucrats, or alia) and his alleged victims reside. Such a court is probably best able to satisfy the questions of authority, accountability, and effectiveness.

3. … What propaganda points are being served by having a trial for crimes against humanity in Iraq?
   1. New Iraq – “We have legitimate authority over Iraq, including the authority to try previous members of previous regimes.” This is an important piece of propaganda, and has the highestlikelihood of being affirmed, if not by this trial, then by history (otherwise all previous revolutionary governments, from the Bolsheviks to the Jacobins to the Americans, are invalid). Like Washington putting down the Whiskey Rebellion was deemed by many as illegitimate federal overreach, it nonetheless established federal authority. The same goes for Marbury v. Madison, which established judicial review not only against Congress, but against States as well.

   2. United States – “We are a nation of rules and due process, so there must be a trial.”

   3. Saddam Hussein – “Because the invasion was a violation of Iraqi sovereignty, no trial would be valid.” This may be a weak defense given the technical merits of the invasion (violation of ceasefire conditions).

I think we can expect rigorous arguments on both sides, but like all first impressions, this will be decided more by policy than by anything else. It may be superficial, but that judgment should not be made until after all the proceedings have taken place. In the end, judgment as to its superficiality are irrelevant to the judge (who must certainly doesn’t, or doesn’t want to, see himself as any sort of “puppet”), and unless it causes outrage among a significant enough portion of the Iraqi population to spark a revolution on its own merits (meaning, unconnected with other perceived grievances against the new Iraqi regime), it is historically irrelevant as well.

Stephanie Kline argues in favor of postponing the trial, for reasons of fairness. As Mohammed notes at Iraq the Model, the judge seemed to be of the same mind:

I think today’s session has also proven the independence of the court in making its decisions; while skeptics accused the court of being manipulated by the government which wants to get this done in 30 days, the judge set the date for the 2nd session 45 days from now with probably more sessions to come.

We’re drawing the outlines of a change not only for Iraq but also for the entire region and I can feel that today we have presented a unique model of justice because in spite of the cruelty of the criminal tyrant and in spite of the size of the atrocities committed against the Iraqi people, we still want to build a state of law that looks nothing like the one the tyrant wanted to create.

So far, then, so good. Let’s see how this unfolds.

[Cross-posted at Law Law Stud]