July 2, 2004
JUST IN CASE HE WAS ON HOLIDAY WHEN HIS ASSISTANT GASSED THE KURDS
Can Iraqis conduct a fair trial? (Rory McCarthy and Jonathan Steele, The Globe and Mail, July 2nd, 2004)
But that still leaves several issues unsettled. A team of defence lawyers will challenge the legitimacy of the court set up by the Iraqi Governing Council, a now-disbanded group of advisers appointed by U.S. occupation authorities.“I don't think there is a prospect of a fair trial in Baghdad and I think any court in Baghdad will inevitably be one which is not fair,” Tim Hughes, a British criminal lawyer, said yesterday in Amman, where a 20-member defence team has gathered under a power of attorney from Mr. Hussein's wife, Sajida Khairallah. “We say that the regime which is currently in force is a regime which has no backing in law — and coalition forces are still there,” he added.
The fact that the tribunal is being run by Mr. Chalabi — nephew of one of Iraq's most vociferous Hussein opponents, Ahmad Chalabi — will also raise questions over its neutrality.
Amnesty International has said the terms of the Iraqi special tribunal needed to be changed. The statute behind it did not prevent arbitrary arrest or the torture of detainees to extract confessions, it said. It also suggested there was a lack of expertise among Iraqi judges in tackling cases involving human rights and crimes against humanity. Other rights groups noted there is no requirement for proof beyond a reasonable doubt.[...]
Perhaps the biggest hurdle may be the logistics of amassing evidence. The process may be seriously slowed by sifting through thousands of unsorted documents to find the papers that definitively prove Mr. Hussein issued direct orders for the most heinous crimes.
Few would deny there is a longer-term military imperative to conducting a trial that is seen by all sides as impeccably fair.
Lieutenant-General Thomas Metz, the second-most-senior military commander in Iraq, said it is important the trial does not “become a carnival and something that the insurgents or the Baathists or anybody can say wasn't proper. We have invested too much, we have come too far not to do those last couple of steps with Saddam correctly.''
Iraq's human-rights minister, Bakhtiar Amin, said yesterday that Mr. Hussein must not be allowed to use his trial as a political platform. “We must learn from the experience of Milosevic's trial at the international war-crimes tribunal in The Hague and not repeat its mistakes.”
Jordan's King Abdullah said the trial is a test for the new Iraq and must be clearly seen to be fair. “This is one of many first tests for a new Iraq, and obviously there is going to be a lot of attention on how Iraqi justice will be carried out,” the King told BBC television yesterday. “I just hope that, as it's a showcase trial to an extent . . . I hope that it will be done through the law, and just and fair,” he said, adding that it is up to the new Iraqi government to decide what punishment is best suited to the case.
As with the United Nations and multilateralism, this surreal drama flows from the sunny postwar liberalism that emerged regnant after the defeat of the Nazis. Both the U.S. and the USSR insisted the Nazis be tried publically in a court of law, albeit for very different reasons, and brushed aside those British and French voices who argued the matter was political and moral, not legal, and that they should simply all be shot summarily. The few conservative jurists who foresaw where using positive law to define and enforce visceral moral outrage could lead to were ignored, largely because it was politically impossible to argue that case without appearing to either advocate Nazi practices or understate the horror of what had occurred.
So now a man everyone on the planet knows was guilty of unspeakably gruesome mass murder and genocide for years has a team of twenty lawyers to argue all the juisdictional and technical issues lawyers are paid to argue, while the chattering classes fret about whether the trial is "fair". What exactly an unfair trial of Saddam Hussein would look like is an embarassing question no one will ask. Meanwhile, the U.S. Supreme Court and the international community are adamant that terrorists who would delight in beheading us all should be treated like your friendly local shoplifter. The decline of the West will be complete when all moral impulses have been subsumed in law, but who will be brave enough to take that case to the public?
Posted by Peter Burnet at July 2, 2004 7:34 AMI don't see what the problem is with finding experienced jurists who are fair and impartial. Iraq is part of the great Arabian civilization, and can simply ask its brothers for assistance. I'm sure they have such judges to spare.
Posted by: David Cohen at July 2, 2004 8:39 AMFor all of you, like David, who can't see the forest for the trees, let me spell it out:
1. A trial, by definition, is a process used to determine what has occurred in the past.
2. It is an established and undeniable fact that Saddam Hussein barbarically invaded Kuwait, that he ordered the killing of thousands of Kurds with poisonous gas, and that he ran a terrible tyranny for decades.
3. Because Saddam's past is established and undeniable, there is no need to have a trial to determine what has occurred.
4. From a theoretical standpoint, "war crimes" tribunals are high-minded and all that, but the simple fact is that war is outside the bounds of community and civil government. Consequently, you can't apply civil remedies (like trials full of rights and appeals) to war.
Saddam Hussein should be given morpheine and shot in a way that is reasonably painless to him.
Posted by: EO at July 2, 2004 9:23 AMI'm a little speechless.
Posted by: David Cohen at July 2, 2004 9:39 AMI'm just looking forward to watching the international law junkies try to tell the Iraqis what they have to do with Saddam. Popcorn-worthy!
Posted by: mike earl at July 2, 2004 9:50 AMDavid:
Take heart. At least no one is after you for your spelling.
Posted by: Peter B at July 2, 2004 10:07 AMA great deal of bother and expense would have been averted if the U.S. soldier who espied Saddam in his hidey-hole had, upon observing that he had a pistol, simply dropped in a grenade.
Posted by: Axel Kassel at July 2, 2004 10:07 AMJust as well they didn't. Maybe the Iraqis can get some real information out of him in their interrogations.
Posted by: pj at July 2, 2004 11:11 AMPeter B. --
Between you and snide of snide.org (on another Blog) I'm beginning to think I should retire.
Point of fact. If David had left well enough alone or asked his legal secretary (they do know how to spell), I would have not intervened.
I expect that you will never be aware of this (my) comment since burnetlaw.com is still bouncing my e-mails (generated without my permission by MT, presumably because that's the way oj likes it) whether you instigated the bounce/block or not.
That being the case, would David or oj or TheOtherBrother please be kind enough to see that Peter B. is informed that he has just been inexcusably 'flamed'.
Uncle Bill:
Actually, it wasn't your exchange with David I was referring to. Didn't you see I may be tarred and feathered if I don't drop the subversive spelling we use up here?
Orrin alerted me to the bounce back problem a while ago. Apologies, but it must be a problem with you or GHQ, as I have no control over it. I suspect it is you because everyone else's posts get through. I just checked and yours did not.
Posted by: Peter B at July 2, 2004 11:36 AMUncle Bill: I thought Peter was being snide at me, not you, or maybe at whoever it was who first made fun of "synomym". By the way, the second misspelling, "symonym", was purposeful.
Posted by: David Cohen at July 2, 2004 11:45 AMOh, until I ran into Peter's dig at David (speak of self referential!) what I meant to comment on was the original post.
Specifically, if Iraq cannot try Saddam fairly, he should be 'exported' to Kuwait and if there is anything left to Iran.
Peter B. --
Just caught your reply -- comments to oj and David don't bounce, why do yours? And, just who or what is GHQ?
Don't bother to answer the last question here, I'm off this thread and will not be back.
Posted by: Uncle Bill at July 2, 2004 11:46 AMMaybe I also need to say that my posts and comments bounce back and forth between painfully earnest and entirely tongue-in-cheek. Apparently, only I can tell the difference. If, however, something I've written not only leads you to believe that I've lost my marbles, but also that I've joined the left, I am probably not being earnest.
Posted by: David Cohen at July 2, 2004 11:51 AMI keep forgetting that self-mockery and sarcasm on the web is dangerous because of the unusually high risk of injury from friendly fire. Apologies all around.
Posted by: Peter B at July 2, 2004 11:52 AMUnfortunately, my artistic vision does not allow me to flag those posts that are serious and those that are not.
Posted by: David Cohen at July 2, 2004 11:55 AMPeter: Know appolagees our dew mi. I dnt ubgeck too you're snidity. I take it as license.
Posted by: David Cohen at July 2, 2004 12:09 PMActually, Stalin did not want trials. He proposed to just shoot the top 50,000 Nazis.
That would have been partial (in both senses of the word) justice, but Churchill refused to go along.
Posted by: Harry Eagar at July 2, 2004 1:40 PM"Amnesty International has said the terms of the Iraqi special tribunal needed to be changed. The statute behind it did not prevent arbitrary arrest or the torture of detainees to extract confessions, it said. It also suggested there was a lack of expertise among Iraqi judges in tackling cases involving human rights and crimes against humanity."
Wouldn't the fact that they personally suffered these crimes make them experts? What expertise is necessary here? If anything, these kind of crimes require LESS expertise than any other kind of court proceeding. There is no ambiguity with these crimes, a five year old child knows that gassing innocent people or dropping them into a shredder is wrong.
"Other rights groups noted there is no requirement for proof beyond a reasonable doubt."
There is no reasonable doubt. Does anyone in the world deny that he invaded Kuwait? He admits it himself. Why does a judicial proceeding for a crime to which noone can deny the defendant committed require that the people conducting the trial suspend knowledge of what they already know. It can't be done!
Posted by: Robert Duquette at July 2, 2004 4:35 PMAs I understand the theory of Nuremburg, it needed legal proceedings to demonstrate to the satisfaction of the world, or at least of the Germans, that the bad things had happened.
That was a strange argument then, stranger now that we know (from reading brothersjuddblog, for example) that such trials do not, in fact, persuade people that bad things really did happen.
Posted by: Harry Eagar at July 2, 2004 6:31 PM