»  National Review Online

July 13th, 2004

  Whose Justice?

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The appearance of Saddam Hussein before an Iraqi judge the other day illustrated a number of things. It illustrated, for example, the truth that a bully is not always a coward. Also that the new Iraqi government (or perhaps some U.S. adviser) has savvy presentational skills: letting Saddam come to the court cleaned up and well-dressed reduced the sympathy factor among Arab viewers. And also that there are patriotic Iraqis like this judge, willing to face horrible risks to get Iraq working again. The fifty Iraqis appointed to investigate and prosecute the deeds of Saddam and his colleagues are all marked men, who spend their lives being shuttled from one safe house to another. Five have already been murdered.

I believe Saddam's appearance illustrated another thing, though: the folly of the legalistic approach to war criminals, and our continuing inability to take seriously the threats facing us.

Consider the legal issue. Here was Saddam Hussein in court, before a judge. Most of my friends and colleagues are thrilled about this. "We have brought the tyrant to justice!" they crow. "Now the people of Iraq can deal with him in a proper, civilized way!"

Well, I am all for justice, and equally so for civilization, but I can't convince myself that either is being served by this embarrassing spectacle. In what sense is Saddam supposed to be guilty of crimes? You are guilty of a crime if you have broken a law. What law or laws did Saddam break? There are, in logic, only three possibilities.

You may say that Saddam Hussein is a very horrible person, who has committed great cruelties. As a matter of fact, I think you are right. However, the purpose of the criminal law is not to punish wickedness. The purpose of the criminal law is to punish crime, as codified in statutes, and in customary prohibitions long established and sanctified by precedent. To the degree that such things exist in a dictatorship, they are instruments of the dictator's will. It is therefore absurd to say that the dictator violated them. If anything is sanctified by precedent in Iraq, it is arbitrary cruelty and persecution of just the kind for which Saddam is on trial.

You may likewise say that Saddam committed outrages of such magnitude that they horrify all right-thinking people, and cannot be allowed to go unpunished. Again, I am in complete agreement. I just don't believe that a court of law is the right place to deliberate on those outrages, or to determine the punishment for them. (Unless, of course, as well as being outrages, they were also crimes — see above.) If we are to apprehend and imprison people for committing shocking outrages against humanity, even if those outrages cannot plausibly be said to violate the laws of any particular jurisdiction — why, then, who determines that the outrages are outrageous? Who prosecutes them? Who decides the punishment for them? Are we not here in the territory of the so-called International Criminal Court, against which our government (and this magazine, and I myself) have set our faces? There are plenty of people in the world who believe that George W. Bush is as big a monster as Saddam Hussein, and who would like to haul him in front of a "war crimes" tribunal. Should we let them do so? Who gets to decide?

It seems to me that all "war crimes" trials have this quality of spuriousness. "Victor's justice," while there is surely a good case to be made for it, is not the same thing as the justice we expect in a settled state under established laws, and we ought not pretend that it is. This was seen rather clearly in the Nuremberg trials, during which Soviet torturers took a break from their labors in the cellars of the Lubyanka to pass judgment on Nazis whose crimes were no greater than their own — with whom, indeed, just five years previously, they had been co-operating in the rape and pillaging of Poland!

More recently we have been given the ludicrous "war crimes" trial of Slobodan Milosevic, now well into its third year. The methods employed by the International Criminal Tribunal for the former Yugoslavia (ICTY) are scathingly exposed by John Laughland in the current issue of Literary Review (not available on the web). After pointing out that the creation of the ICTY was illegal in itself, Laughland ticks off the methods by which it seeks to attain "justice": secret indictments, widespread use of anonymous witnesses and hearsay evidence, constant revision of its own procedures, "an unhealthy community of interests between prosecutors and judges," violation of the basic principles of extradition law by adding new charges to the sheet after the defendant was in custody, accepting the departure of the Presiding Judge without ordering a retrial (this one actually contravenes the ICTY's own rules), and so on. There is a foretaste here of what we might expect from the International Criminal Court.

The archetype for all these victor's-justice kangaroo courts, at any rate in the Anglosphere, was the trial of King Charles the First in January 1649. Charles had had the bad luck to lose a civil war against Oliver Cromwell and his Parliamentarians, who promptly put him on trial for "tyranny, treason, and murder." Charles, who was a poor king and an unattractive human being (these are, in British history at least, independent variables) conducted himself magnificently, laughing in the face of his judges, and refusing to acknowledge their authority. From whence derived that authority? he repeatedly asked. From the Commons of England, they told him.

King:  Shew me where ever the House of Commons was a court of judicature of this kind.
Bradshaw:  Serjeant take away the prisoner.
                     — George Borrow, Celebrated Trials

By his simple refusal to plead either guilty or not guilty, Charles actually managed to make the trial even more of a mockery that it would otherwise have been, since until he entered a plea, none of the thirty-three witnesses who had been assembled to testify to his responsibility for the wars could legally be heard. They convicted the King anyway, of course, and cut his head off; but his dignity and courage strengthened the Royalist cause, and added to Cromwell's problems instead of subtracting from them.

There is also the following not insignificant issue: If you bring a man to trial in a fair court of law, there is a non-zero probability that he will be acquitted. So by proceeding with this trial, the Iraqi authorities are saying to the Iraqi people: "We're going to do this properly; and as a consequence of that, it is possible you may find Saddam Hussein walking free among you a few months from now." This is an alarming prospect. Or rather it would be, if we did not all know that the outcome of these pseudo-judicial proceedings is as much a foregone conclusion as the one promised by the Sheriff to Marlon Brando in One-Eyed Jacks: "You'll get a fair trial … and then I'm gonna hang you."

Colleagues that I have discussed this with come up with the following as, it seems to me, the best argument for hauling Saddam before a judge:

The alternative would have been to just put him up against a wall and shoot him as soon as he'd been found and identified. But then, Iraqis would have said: "Oh, these Americans are just like all the rest of the gangsters we've endured this past fifty years — get the better of the other guy by force, then whack him." By going through a formal legal procedure, we're showing that this is a truly new order, unlike what went before. It's a declaration that this will now be a country of laws, not men.

I doubt, in fact, that this argument would be taken seriously by many Iraqis. The bogus nature of the proceedings, whose verdict is known in advance, make this a very poor advertisement for the rule of law. Furthermore, given that the new government was installed by an invading and occupying force — bound to be resented by any populace under any circumstances — and that the court is an instrument of that government, and that Saddam is thumbing his nose at it, the net effect of the trial will probably be to increase public sympathy for Saddam and reduce the government's credibility and authority, just as it was in the case of Charles the First.

My own belief that putting Saddam up against a wall and shooting him within hours of his apprehension would have been exactly the right thing to do, and would have saved us, and the Iraqis, much embarrassment and many unnecessary and undesirable complications. The street vendor I buy my coffee from on my way to National Review editorial meetings is a native of Romania, where he tells me things are now looking up, with hopes of an eventual entry into the European Union. Yet the up-against-a-wall approach was precisely the one taken by the Romanians towards their last dictator, Nicolae Ceasescu, when they overthrew him in 1989. Are there any Romanians who regret this? Or who feel that their new Constitution is less legitimate because of it? I doubt it.

We have lost our chance to do the right thing with Saddam Hussein, but there is still Osama bin Laden to dispose of. I very much hope that when that rat is cornered, subsequent events will follow the admirable and correct Romanian model, not the absurd Yugoslav/Iraqi one. I don't want my country's enemies "brought to justice." I want them killed.