Saddam Trial – Jurisdiction

The friend who asked, rhetorically, if the Saddam Trial was nothing but a dog-and-pony show before a kangaroo court later (but before I responded to him) asked this question:

If the invasion is illegal, the Court has no jurisdiction.

The smart money is that this is what Saddam’s lawyers will try to argue. Professor Willis, my Civil Procedure instructor, concurs, but adds much more nuance. She suggests that Saddam’s lawyers will specifically try to argue that the court has no jurisdiction over him because the Coalition Provisional Authority headed by Paul Bremer, under whose auspices the statute creating the Iraqi Special Tribunal was drafted, had no authority due to the illegality of the war. According to the Human Rights First page, “Iraqi Special Tribunal: Questions & Answers“, the statute was actually enacted by the Iraqi Governing Council, to which the CPA temporarily ceded legislative authority for that purpose. Moreover, arguing the illegality of the war may be futile.

This is how I answered my friend:

The invasion was not, in fact, illegal, on the technical merits. Violation of ceasefire conditions + continued hostilities = grounds for war. And in the end, like it or not, war tends to throw all of our preconceived notions of law and morality out the window during its conduct.

Moreover, the jurisdiction question may be academically titillating, but factually inconsequential. Jurisdiction questions in peacetime are often subject to questions of law. However, in times of chaos (war, revolution, natural disaster), “might makes right”. As I addressed in an earlier response to your initial post, no incipient government or judicial system will rule itself out of existence; and if the results are so egregious, citizens will take to revolution instead.

Here’s a parallel. The First Continental Congress had no jurisdiction over the several States. Indeed, then, as now, Americans were pretty much evenly split as to handle relations with the Crown. A minority of extremists, made up primarily of lawyers, doctors, merchants, and some Southern landowners, conducted a war that was not authorized by any single State. Indeed, no State had the authority to declare war against the Crown. In fact, several Loyalists would raise the argument, and lose. While the great body of common-law continued, the questions of jurisdiction were decided in favor of governments assembled in a time of chaos (although some were “constituted” beforehand), when both the Crown and the Rebels claimed legitimacy and charged the other with illegitimacy. Thomas Jefferson made the most famous charge by laying out grievances in the Declaration of Independence. But it was neither an English nor an American court that decided in favor of the Rebels. It was the Crucible of War in which the legitimacy of independence was decided.

I understand that the legality of the war is something that many people of good faith remain hung up on. That is why I went into the second, and larger, point in my response. And I leave the larger point out there, that ultimately, “in times of chaos (war, revolution, natural disaster), ‘might makes right'”. I’m sure it’s not a proposition that many would be comfortable with, as accustomed as we are to more-or-less peaceful progression of social history. There’s also the chance that someone will want to invoke some sort of statute of limitations — but that too is an unsatisfying answer.

The question then, dear readers, is, what is the basis for jurisdiction ab initio? In other words, how is the legitimacy of a regime established? Does the Iraqi Governing Council of 2004 count? Does the January Election count? How about the October Election? Is there even any way to determine a single act or set of acts that confers legitimacy after a “time of chaos”? If so, what is it, or what should it be?

[Cross-posted at Law Law Stud]

23 thoughts on “Saddam Trial – Jurisdiction”

  1. So what was the ‘legal’ basis for President Roosevelt’s invasion of neutral French North Africa in 1943? We were not in any state of war with Vichy France at the time. It wasn’t like France was in breach of any cease fire accords with the US at the time. Since we’re all wrapped up with ‘legal’ definitions, I’m interested to know. And if I recall correctly, it was the French who dealt with their fellow Vichy French afterwards, not the allies as at Nuremberg.

  2. how is the legitimacy of a regime established?

    “…When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness…..”

    There is no moral equal to America in the world today. We are far from perfect but by all historical standards have earned our white cowboy hat.
    (Plus we won the first Iraq war).

  3. I don’t recall any of the legal-status agonizers worrying whether the Kurds, marsh Arabs, or Kuwaitis killed by Saddam’s armies had fair trials. But here’s a compromise: Let the guards stuff 10 pounds of asbestos pipe wrap down his throat, and let his survivors sue Johns-Manville Corporation. Then the well-settled principles of US bankruptcy law can deliver a tidy resolution of this messy case (which could have been easily avoided by tossing a grenade into Saddam’s hidey-hole rather than taking him prisoner).

  4. What about the series of UN resolutions? What about the 50,000 (I think) sorties by American planes during the nineties that kept the Kurds safe & able to esablish a democracy? What about Saddam Hussein’s refusal to work with the inspectors? What about the conditions that ended the earlier war? I was under the impression this wasn’t just some bright idea Bush got one morning, thinking it would be fun to invade another country. (That it conveniently borders Iran, which we wanted to keep an eye on, is coincidental.) This was finishing a war that wasn’t finished a decade before.

  5. “The consent of the governed” sums it up pretty well. And if his fellow Iraqis, who were the Hussein regime’s principal victims, don’t have standing to judge him, who does?

    Thank God lawyers don’t run wars. The earnest questions about jurisdiction and the legitimacy of the trial are troubling, because it looks like a lot of the people raising these points are wrapped up in the details of procedure but have no appreciation for the moral and historical context in which the war took place.

  6. For all those who worry about the legitimacy of the current government and the court that will try Hussein, I ask how did Hussein himself ever become the legitimate and sovereign ruller of Iraq.

  7. Legitimacy is established ab initio by a government establishing effective control over territory, meaning that it obtains an effective monopoly on the use of force and other, lesser badges of legitimacy.

    This means that all existing states started with acts of armed violence, displacing previous states or populations living in a pre-state level of organization. Very few states have been established by a peaceful transfer of power.

    I am not sure that the example of the Continental Congress is apt. There was a solid case to be made that the various colonies, which had charters and had governed themselves for many years, were in the legal right to resist the encroachments of the King. Many people in England agreed. But that is a very large question.

    The question of jurisdiction of a court in a situation like this one is questionable. Nuremburg was challenged at the time as being an illegitimate exercise in ex post facto law. I am not sure that is wrong. It might have been better if that proceeding, and this one, had been expressly set up not as “trials” but as hearings to preserve the historical record, with penalties recognized as unique to those unique proceedings. But the Iraqis may believe that giving even Saddam his “day in court” is something that they need to do to get their country going on the right track.

  8. He doesn’t deserve a day in court, but that’s not the point. The trial isn’t about Hussein, except to the extent that he can function as an educational prop until his execution.

  9. The one thing that just about everyone fails to consider when discussing law between nations is the question of enforcement. The Kyoto Accords were doomed to failure because there isn’t an international body of policemen, armed and standing ready to apprehend and punish any government which violates the agreement. The same goes for all of those resolutions that the UN passed against Saddam.

    Robert Schwartz points out that the invasion of Iraq was legal because both houses of our Congress voted for it, so our military had the only mandate that mattered. Lex defines it further by saying that the establishment of a monopoly of force is the only legitimate standard for forming a legitimate government.

    Lawyers find the debate about the legality of war to be endlessly fascinating. The soldiers and police that do the dirty work think that there is a debate at all is rather amusing.


  10. Don,
    I will attempt to address your questions.
    I don’t believe the US recognized Vichy France, and it would therefore be seen as a legal fiction. They very well might have seen it as German controlled territory.
    I would say that the Vichy situation matches fairly well the current Iraqi situation. I think it does make sense where possible that each country take care of its own transgressors.

  11. Lex, I think you addressed best the point I was makikng to my friend, who I think our fellow readers will not be surprised to find is a lawyer. :) As you wrote, Lex, prescious few new states come into being without some sort of violence or threat of violence, except perhaps when an older state falls apart (as was the case with the Soviet Union and parts of the British Empire).

    My reference to the First Continental Congress prompted someone to post a copy of the Declaration of Independence, which amused me, and rather illustrates my point: Even when attempts are made to ground a revolution in legality, such as the American Founding Fathers did by asserting their rights as Englishmen, at the end of the day there will be violence. The Crown could have made the argument that, regardless of the legitimacy of American grievances, their firing upon Redcoats at Lexington and Concord was clearly illegal, and warranted military action.

    That brings me back to another point I made: “in time of chaos (war, revolution, natural disaster), ‘might makes right'”. The Americans were different in that they asserted a moral rectitude as well, and set the tone for the American perspective for centuries to come.

  12. Bruce, you are right that all the legal arguments in the world would not have resolved the American Revolution after April 19, 1775. The Founders sincerely believed in the legality of their case, but they knew they’d have to fight for their cause if it came down to that or submission to what they saw as unjust and illegal authority. Every state, ultimately, has to vindicate its right to continue to exist by providing for its physical security, whether by its own armed force, or by alliance, or by treaty. The latter two can be violated of course. States come and go, and their legal orders come and go as well, and the legitimacy of their actions and the jurisdictions of their courts come and go.

  13. I thought we had all agreed a couple of hundred years ago that sovereignity resides with the people; that they may entrust this sovereignity (without surrendering it) to a government to safeguard their life, liberty, and property; and that a government which abuses this trust and usurps the people’s powers to its own uses has no legitmacy and may be overthrown. You recognize the paraphrase, of course.

    The UN and the tranzis take a different view. To them, a government may do “bad things,” but can never render itself illegitimate and thus subject to removal. The conflict between sovereignity and human rights can never be resolved under this framework.

    Lex, a government may be established be exerting effective monopoly of force over a territory, but it may not legitimate itself thereby. Otherwise, how could we have justified driving Saddam’s forces from Kuwait after he had established control over that “beloved 19th province”?

    By the way, with dogs, ponies, and kangaroos, we will need to lay in a variety of animal feeds and should probably engage the services of a competent veterinarian before proceeding to trial. And the UN had better address the elephant in the room and reconsider its equation of democracies with tyrannies, or the 500 lb. gorilla may take up residence elsewhere.

  14. “…exerting effective monopoly of force over a territory…” OK, Mitch, I should have added a phrase like “…which it can get other countries to accept, either by agreement or coercion.” Saddam never got that from the rest of the world. If we had ignored his action, or just sent strongly worded diplomatic notes, over time, Iraqi rule would have been recognized de facto and ultimately de jure over Iraq.

  15. Lex, I’m still not there yet. Maybe I’m using “legitimate” in the wrong sense, with its Latin roots implying a relation to law. I’m speaking mostly in moral terms in saying that there is no legitimacy in simply achieving a monopoly of power.

    I don’t think Saddam was a legitimate ruler over Iraq in this sense, either. A tyrant can never be legitimate. We may certainly treat with one as a legal ruler, he can have a seat in the UN General Assembly, but we would be morally bound to support a democratic challenge. This is especially the case where he maintains himself in power by terror and violence. At best, he is forms a provisional government until the people can establish a better one.

    Even the worst give lip service to this principle. How many times have you heard the leaders of a successful coup promise democratic elections? They have already achieved a monopoly of force, they will be recognized by foreign countries as the legal government after a decent interval, so why make such a promise? It is either a tactic to calm resistance, or a claim for legitimacy by claiming to act as trustees of the people.

    The alternative, no matter how you refine it, comes down to vae victis, which, being translated, signfieth “you and what army?”

  16. “A tyrant can never be legitimate. We may certainly treat with one as a legal ruler …”

    I don’t think the first phrase is right. He may be, as you say, the legal ruler. He may be a benevolent tyrant. He may be a tyrant who inherited an anarchic situation and is imposing order. He may be a tyrant whom other countries and even his own people believe is the only guy who can fend off some worse evil. I would not particularly like any of these situations, or to live under them, but the variety of concrete situations that arise make it difficult for me to concur that no tyrant is ever legitimate. The old-time law, prior to the UN and the modern era, was that the legitimacy of a government was an empirical rather than a moral or a legal notion. If you actually controlled the place, and everyone had pretty much conceded that you did, then you were the government and everybody acted accordingly, even if you were not a very nice government. For example, the Chinese government which slaughtered all those people in Tiananmen Square was, let us say, tyrannical in doing so. And in all the years since it has retained many of the badges of tyranny — e.g. no nationwide elections, arbitrary laws, harsh punishments, no presumption of innocence, etc., etc. Is it a legitimate government? I think it is, as a practical matter. It controls its territory, it is capable of entering into and keeping and enforcing agreements with foreign powers, it has a high degree of internal organization, though not always of the character we would like. I don’t think that we say anything useful if we say even such an unpleasant government is illegitimate.

    But, maybe I am not understanding you. I think we are somehow typing past each other.

  17. Of course the Chinese govt is illegitimate. It is morally illegitimate. It is a dictatorship. It could be overthrown and its rulers stood up against a wall, and that would be fine. (If a representative govt replaced it, good, but otherwise it wouldn’t matter much.)

    Needles to say, I don’t think the concept of “law” means much in international affairs.

  18. Juan, re. Sadam’s rise to power.

    I believe he came up, starting as an arm-breaker, through the state security system.

  19. “It is morally illegitimate.” We have treaties with it, which are binding law in our country. We negotiate with it, we have exchanges with its military officers. Our government does not recognize anyone else as the Government of China. As to legality, we recognize the Chinese government as legitimate. Moreover, it has all the traditional empirical evidences of sovereignty.

    If some rebels some day overthrow the Party, and succeed in establishing a new regime, we will recognize that.

    Moral disapproval of a government does not make it illegitimate.

  20. Let’s define terms. I define legitimacy as resulting from popular consent. We may make expedient agreements with gangsters, but that fact doesn’t imply that the gangsters hold power legitimately. Morally the people who run the Chinese dictatorship are distinguishable from street criminals mainly because the former have achieved greater success and scope in their depredations.

  21. “I define legitimacy as resulting from popular consent.” Most governments that have ever existed, including some good ones, and most of the ones we have had to deal with over the years have not been subject to popular consent. And, even then, there are degrees of popular consent. There is a big continuum between, say, the USA as currently run and “gangsters”. I can’t really agree about the current Chinese government. I don’t like them. But they are not really like Mao. Mao took over the country by armed force, the old fashioned way. He seems to have had a large degree of genuine popularity initially, for that matter. After he died, his successors have struggled to move the ocuntry along, . The current regime has delivered all kinds of benefits that make it to some degree or another popular, and it has been building in local democracy and other forms of accountability bit by bit. So, it is somewhere on the continuum, and more importantly, moving in favorable directions. Perhaps most importantly, it exercises actual authority and is capable of entering and keeping agreements. So, we deal with it.

    The American founders did not think that popular sovereignty was the only basis for legitimacy. 18th Century England had little of that. They insisted on lawful processes and adherence to existing and accepted rules.

    I think you are setting a standard of perfection that is not particularly useful.

Comments are closed.