Thursday, October 20, 2005

Does Saddam Hussein Deserve A Fair Trial?

It's already being discussed in some legal circles as a defining moment in legal philosophy: The trial of former Iraqi President Saddam Hussein for war crimes.

For an expert legal analysis of the trial, check out the Grotian Moment blog. It gives an excellent technical explanation of the various charges and discusses issues surrounding the trial.

The impact of the Saddam Hussein trial, in a political sense, settles around the debate of whether or not Hussein can and will receive a fair trial. I have already seen commentary by conservatives essentially saying that Saddam Hussein was a brutal dictator and thus any trial ending in his execution is a fair and just trial. The problem is that the trial has broader implications on U.S. foreign policy.

First, the concern is that Saddam Hussein cannot or will not receive a fair trial.

From Human Rights Watch:

"The trials of former Iraqi government officials will be closely watched inside Iraq and throughout the world," said Richard Dicker, director of Human Rights Watch's International Justice Program. "The proceedings must be fair and be seen to be fair, and that means ensuring that the accused can vigorously defend themselves."


Problems with the tribunal and its statute include:

  • No requirement to prove guilt beyond reasonable doubt.
  • Inadequate protections for the accused to mount a defense on conditions equal to those enjoyed by the prosecution.
  • Disputes among Iraqi political factions over control of the court, jeopardizing its appearance of impartiality.
  • A draconian requirement that prohibits commutation of death sentences by any Iraqi official, including the president, and compels execution of the defendant within 30 days of a final judgment.

    In Iraq's fragile political climate, the legitimacy of the court will be in question. To provide a measure of truth and justice for hundreds of thousands of victims of gross human rights violations in Iraq, fair trials are essential, Human Rights Watch said.

None of this indicates that Hussein cannot receive a fair trial, but the Iraqi Tribunal will have its hands full maintaining the legitimacy of the proceedings. A case has been made that an international war crimes tribunal, such as that in the Hague, would be a more appropriate venue for the trial. However, the Iraqi government has remained adamant in its desire to see Saddam Hussein tried in Iraq under Iraqi law.

There are essentially two main reasons why Saddam Hussein needs to have a fair trial and neither has anything to do with the righdefendant defendent, per se. The first, as HRW points out above, is that a fair trial is the only way to assure justice for the victims of Hussein's brutality. Few observers outside of Hussein's own defense team would be willing to argue that he's not complicit in a huge array of crimes against humanity. But "frontier justice" doesn't suit in this instance. For better or worse, Hussein must have a legitimate trial so that the millions afflicted by his reign can have their day in court to air their grievances. Such can help smooth the transition to a democratic, pluralistic Iraq. Moreover, a fair and sophisticated legal system is one of the bedrock underpinnings of a successful democracy. Bush can crow all he likes about the Iraqi elections, but voting alone is not going to create the stable democracy that Bush has identified as his latest justification for the U.S-led invasion and occupation.

Which leads directly into the second reason the trial needs to be fair and that is the effect of the trial on U.S. foreign policy goals in the context of the "War on Terror". In the first day of the trial, Hussein's defense centered around a refusal to recognize the court as legitimate based on his removal from office being illegal under international law. It's a fair point, frankly. The United Nations has openly stated that the U.S. invasion of Iraq was illegal under international law. Thus, it could be argued that any trial conducted by members of the new Iraqi government lacks legal standing, as that government was made possible by an illegal act. In order to quell this criticism, the tribunal must maintain the strictest standards of fairness and transparency. If the impression is given that the United States has a free hand to depose any ruler it wishes and then exert pressure to insure that said rulers receive punishment in accordance to U.S. policy goals, then the standing of the U.S. in world opinion could crumble even further.

Now, most on the Left will argue that the illegal invasion of Iraq has already done immense damage to the U.S.'s reputation as a supporter of human rights and freedom, and that's also a fair point. However, at this point the goal of U.S. foreign policy has to be damage control. The Bush Administration has struck a mighty blow to U.S. credibility in the world, and it must be a priority of succeeding administrations to mitigate this damage. Successful security policy for the U.S., in regards to terrorism, depends on the U.S's ability to woo allies for international anti-terrorism efforts. That cannot and will not happen if the trial of Saddam Hussein is seen as being tainted by U.S. interests.

Does Saddam Hussein deserve a fair trial? As an American, I have to say "yes" because that is one of the foundational beliefs that make us Americans. But in the larger sense, the victims of his regime deserve to see justice done, as do those that have lost their lives in the invasion that deposed him. Those that instigated the illegal and immoral invasion of Iraq had little regard for justice or the rule of law; many have lost their lives for the duplicity of these neoconservative warhawks. Our first step in repairing the damage they've done is to reintroduce America to the world as a nation that defends those principals. A fair trial for Saddam Hussein is a good start.

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