Saddam Hussein had his first day in court today. The New York Times does a pretty good job of breaking down the pitfalls and opportunities that this trial presents the United States. Rather than repeat everything they say, however, allow me to point out one fatal flaw in this trial: under what laws is Saddam Hussein being tried?
There are basically three traditional ways to break the law. If you or I do something illegal, we get charged under the legal system that was in place when we violated the laws. This is what American courts are set up to do. This way, you know before you commit an act (or would if you read and understood the legal code) that this act is illegal, you know the kind of court you will be prosecuted in, the standards by which you might be found guilty, and the likely punishments you will face. Furthermore, you can be confident that this law applies to everyone equally (barring corruption or discrimination, of course), and not simply to you arbitrarily. This is the way that democracies are supposed to put people on trial.
The second method is to pass a law ex post facto (after the fact) which makes the activity illegal. In other words, you go out and mow your lawn on Sunday morning, which wakes up your neighbor, the mayor. He then goes down to City Hall on Monday, signs a law banning the mowing of grass on Sunday morning, and sends the police to arrest you for doing something that wasn’t a crime when you committed it, but is a crime now. This kind of thing is explicitly unconstitutional, and very undemocratic, although society does try this sometimes; notice the attempt by some to punish baseball players for taking steroids that weren’t against the rules when they took them. (Wrong, yes; illegal, sometimes; against the rules, no.) Of more questionable constitutionality is the attempt to change the rules of the legal system after the fact, but not the criminality of the action. For instance, we require convicted sex-offenders to register themselves, even when the registration law was passed well after they committed their crime. Functionally, this adds a penalty onto the original sentence after the fact, although the courts have allowed these kinds of laws in some cases.
Finally, the world community has decided that there are some crimes that violate all standards of human decency, and are too large for national courts to try; crimes such as genocide, organized campaigns of rape and torture, etc. As a result, the world community has established international courts, using the model of the Nuremberg War Crimes trials after World War II. These courts usually handle crimes committed under previous regimes, and they try the ring-leaders and tyrants who committed them, using international standards of justice. That means full benefit of the doubt for the defendant, adequate legal representation, and no death penalty. The whole idea behind them, after all, is that their legitimacy does not rest upon the legitimacy of any particular government, but upon a set of moral standards that all humanity can agree on.
Now, if you were trying to bring Saddam Hussein to justice, which of these would you choose? The problem with the first solution is that many of the things that we want to try him for were not illegal, according to Iraqi law, when he did them. Furthermore, trying a tyrant under the laws and courts that he established only gives legitimacy to those laws and courts, and therefore to the ruler who you are trying to convict. Clearly that is a bad option. The second option is a possibility; we can simply declare a lot of things that Saddam did illegal, and then convict him based on the new laws. The problem, however, is that democracies must exist upon a foundation of established law. People need to know, and trust, the rules of the system if you expect them to participate in that system. Ex post facto laws undermine that trust. The absolute prohibition of these laws is a necessary component to any functioning democracy. Instead, the third option seems the best, right? Situations like this are exactly why the international courts were created in the first place.
So what option did the United States insist upon? Option number two, of course. That’s right, folks, we’re trying Saddam Hussein in Iraqi courts under laws, and with a legal system, that came into existence only after Hussein was already in prison. Not a particularly auspicious start to Iraqi democracy. There are three basic reasons why. First, to slake the blood-thirst of those who want Saddam dead, both in the Bush Administration and in the Iraqi government. Second, because the Bush Administration hates the international courts in principal. After all, we can’t have good American boys be tried in some foreign European court, even if they did commit acts of genocide! And third, because they want Saddam tried in Iraq, by Iraqis.
Trying him in Iraq, however, creates some risks. On the one hand, it allows for the trial to be a better, more accurate accounting of the horrors and tragedies of Saddam’s reign. For instance, it’s a lot easier to get witnesses to Baghdad than to get them to the Hague. On the other hand, it allows Saddam to grandstand in front of a potentially friendly audience. There are more than a few Iraqis who are hoping that Saddam can do in Iraq now what Hitler did in Munich in the 1920s, which is to use a public trial to declare the entire system a farce. And, given the way these courts were established, he might have a point.
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