Should Saddam Hussein Have A Criminal Trial?

[BHS]

Posting is slow today, so I'll be a sport and start a new thread.

George Jonas, writing in The National Post a couple of years ago, made a compelling argument against bringing Saddam to trial in a criminal court. The thrust of his argument was that no one can honestly expect Saddam to walk away from the trial exonerated, so the trial fits the definition of a kangaroo court, where the process can jump from accusation to sentencing without the need of all that icky trial stuff in the middle. He concluded that the best thing course of action would be for Saddam to be taken out and shot without a trial.

I have a couple of additional ideas that argue against giving Saddam a criminal trial, both of which are based on the concept of "extralegality".

1) A man who rules a country completely and dictates the law is above all law, no matter it's source. While he remains in power, all of his actions are de facto legally justified. He also has every opportunity to eliminate evidence and witnesses that might one day be used against him, making it extremely difficult to construct a strict legal case against him, using the normal rules of evidence and due process.

2) This is the more important point. By putting Saddam on trial in a criminal court, you are acknowledging that he is entitled to certain rights that are common to any accused person.

All laws extend ultimately from the state's power of coersion. If you break the law, the state has the legal power to act against you, with physical violence if necessary, to bring you to trial. However, the rules that the state must follow are very strict in order to ensure that your rights have not been abrogated in the process. A conviction can be thrown out if it's proven that an accused's rights were not fully observed in the process of arrest and trial.

War is by it's very nature extralegal. It is the unconditional use of a nation's might to force a resolution to a dispute. It is the last course of action to be taken between nations, when all else has failed.

A man who has been brought to trial as a result of war has undoubtedly had at least some of his rights abrogated, by the very nature of his arrest. The soldiers who captured and detained Saddam most certainly did not read him Miranda, for instance, and so a criminal trial against Saddam could not proceed in the US.

This is the reason that armies prefer military tribunals, because the rules of evidence and due process are different.

To reiterate:

If you put Saddam on trial, and that trial involves anything like due process, there's a substantial risk that he's going to walk. But if you don't use due process, what's the point of a trial? Like George said, take him out and shoot him, and use the money you would have spent putting him on trial for a South Africa-style reconcilliation process.

[I Miss Trudeau]

The thrust of his argument was that no one can honestly expect Saddam to walk away from the trial exonerated, so the trial fits the definition of a kangaroo court, where the process can jump from accusation to sentencing without the need of all that icky trial stuff in the middle.

Whether or not we can honestly expect Saddam to be exonerated is really rather irrelevant. If the evidence is so strong as to leave no doubt, then why not just go through a fair trial and be done with it?

The real reason that most western states don't want a trial to go forward is that, if Saddam was permitted a real defense, it would prove to be extremely embarassing, if not to incriminating, for most of them.

He concluded that the best thing course of action would be for Saddam to be taken out and shot without a trial.

Which is basically the crime that Saddam is accused of.

1) A man who rules a country completely and dictates the law is above all law, no matter it's source. While he remains in power, all of his actions are de facto legally justified. He also has every opportunity to eliminate evidence and witnesses that might one day be used against him, making it extremely difficult to construct a strict legal case against him, using the normal rules of evidence and due process.

So, first you're saying that a trial could not honestly be expected to exonerate him, and now you're saying that it could be really difficult to make a case against him? IOW, you're saying "We all know he is guilty. We might just have a hard time proving it, so we'll just skip that part and get to the good part."

2) This is the more important point. By putting Saddam on trial in a criminal court, you are acknowledging that he is entitled to certain rights that are common to any accused person.

Isn't our main problem with Saddam that he didn't afford the accused such rights, he just took them out and shot them?

However, the rules that the state must follow are very strict in order to ensure that your rights have not been abrogated in the process. A conviction can be thrown out if it's proven that an accused's rights were not fully observed in the process of arrest and trial.

The police are generally entitled to enter a home forcefully if they believe that a crime is in the process of taking place. Given all the claims made about the Iraq war by its supporters, this shouldn't be too hard to argue for in this case.

War is by it's very nature extralegal. It is the unconditional use of a nation's might to force a resolution to a dispute. It is the last course of action to be taken between nations, when all else has failed.

There is no reason that war needs to be extralegal. An international law code would function in largely the same manner as a national law code.

A man who has been brought to trial as a result of war has undoubtedly had at least some of his rights abrogated, by the very nature of his arrest. The soldiers who captured and detained Saddam most certainly did not read him Miranda, for instance,  and so a criminal trial against Saddam could not proceed in the US.

Which is why an international criminal court is greatly needed. It is unfortunate that some nations, who claim to support the rule of law and the protection of humanity, are so opposed to it.

This is the reason that armies prefer military tribunals, because the rules of evidence and due process are different.

Not to mention that they typically keep embarassing evidence out of the public spotlight.

To reiterate:

If you put Saddam on trial, and that trial involves anything like due process, there's a substantial risk that he's going to walk.

I don't see any danger of him walking becauseof a lack of due process. If he walks because the accusers can't produce enough evidence, then someone is in for a whole lot of embarassment down south.

But if you don't use due process, what's the point of a trial? Like George said, take him out and shoot him, and use the money you would have spent putting him on trial for a South Africa-style reconcilliation process.

I see no reason to believe that due process, in terms of arrest, is even relevant when the crimes are along the lines of genocide, rather than shoplifting.

[mirror]

The US defied the UN by going into Iraq.

Now with Saddam's trial the Bush and Blair administrations are going to pay a heavy prive for this illegal war, which was manoevered by smoking the American public.

[Guest eureka]

There is also the very real prospect that no crimes (chargeable ones) can be proved against Saddam.

The accusation of Genocide may not be valid. The so-called genocides do not fit very well with the Convention since they were actions against insurrection. They were "justifiable" as actions taken for the security of the State against treason and sedition.Murderous regime his may well have been, but what did he do that is actually criminal?

New ideas that are entering international law may well convict him, but, as IMT says, they have not been accepted by states that are, theoretically, opposed to "brutal dictators."

[cybercoma]

There is also the very real prospect that no crimes (chargeable ones) can be proved against Saddam.

The accusqtion of Genocide may not be valid. The so-called genocides do not fit very well with the Convenetion since they were actions against insurrection. They were "justifiable" as actins taken for the security of the State against treason and sedition.Murderous regime his may well have been, but what did he do that is actually criminal?

New ideas that are entering international law may well convict him, but, as IMT says, they have not been accepted by states that are, theoretically, opposed to "brutal dictators."

<{POST_SNAPBACK}>

I love your posts sometimes, mostly when they're not directly opposed to my ideas. I'm narrow-minded like that.

[BHS]

Whether or not we can honestly expect Saddam to be exonerated is really rather irrelevant. If the evidence is so strong as to leave no doubt, then why not just go through a fair trial and be done with it?

The real reason that most western states don't want a trial to go forward is that, if Saddam was permitted a real defense, it would prove to be extremely embarassing, if not to incriminating, for most of them.

So let me get this straight. You think Saddam should have criminal trial, but America et al are against this idea because details could come out that would prove embarrassing to them. Can you provide some examples of these details, that might be relevant to whatever charges Saddam is facing?

He concluded that the best thing course of action would be for Saddam to be taken out and shot without a trial.

Which is basically the crime that Saddam is accused of.

The argument is essentially consistent, though. What he was saying is that any trial that happens will be a mockery of justice anyway, and Saddam is going to end up facing a firing squad (or worse) no matter what.

So, first you're saying that a trial could not honestly be expected to exonerate him, and now you're saying that it could be really difficult to make a case against him? IOW, you're saying "We all know he is guilty. We might just have a hard time proving it, so we'll just skip that part and get to the good part."

My first point made the case that the process of gathering evidence against Saddam has already been tainted by the nature of his role in the pre-war society. The criminal investigation of Saddam is inherently flawed by his unique position in Iraqi society. If the prosecutors decide to go to trial anyway, they'll be going in with tainted evidence. If he walks because of legal technicalities, the government will execute him anyway, because they can't afford to let him go free. The entire process has nothing to do with justice and everything to do with retribution. So what's the point?

2) This is the more important point. By putting Saddam on trial in a criminal court, you are acknowledging that he is entitled to certain rights that are common to any accused person.

Isn't our main problem with Saddam that he didn't afford the accused such rights, he just took them out and shot them?

Yes. Review what I wrote above about retribution.

However, the rules that the state must follow are very strict in order to ensure that your rights have not been abrogated in the process. A conviction can be thrown out if it's proven that an accused's rights were not fully observed in the process of arrest and trial.

The police are generally entitled to enter a home forcefully if they believe that a crime is in the process of taking place. Given all the claims made about the Iraq war by its supporters, this shouldn't be too hard to argue for in this case.

I guess you didn't comprehend the snippet you were responding to here. What the police do, and what an army does, are two different things for two different situations. Using the same set of rules for judging the legality of the forceful action doesn't make any sense.

War is by it's very nature extralegal. It is the unconditional use of a nation's might to force a resolution to a dispute. It is the last course of action to be taken between nations, when all else has failed.

There is no reason that war needs to be extralegal. An international law code would function in largely the same manner as a national law code.

A man who has been brought to trial as a result of war has undoubtedly had at least some of his rights abrogated, by the very nature of his arrest. The soldiers who captured and detained Saddam most certainly did not read him Miranda, for instance, and so a criminal trial against Saddam could not proceed in the US.

Which is why an international criminal court is greatly needed. It is unfortunate that some nations, who claim to support the rule of law and the protection of humanity, are so opposed to it.

Here we go. "If only Belgian anarchists had the option of charging world leaders with crimes on a daily basis, forcing global governance to come to a standstill, everything would be better." That's what all the of you ICC supporters sound like tom me. You have no idea the can of worms that you're opening.

An ICC with global reach would be a joke, because the terrorists and the Mugabes and ayatollahs would never respond to any of the charges, which means that someone would end up having to send in the troops, for which they would immediately be charged with starting a war. It's a vicious, twisted circle that only benefits the worst offenders in the long run.

This is the reason that armies prefer military tribunals, because the rules of evidence and due process are different.

Not to mention that they typically keep embarassing evidence out of the public spotlight.

Do you know, at this point I wouldn't expect any other answer from you. As if it's all just a great conspiracy to keep military bondage videos out of the press.

To reiterate:

If you put Saddam on trial, and that trial involves anything like due process, there's a substantial risk that he's going to walk.

I don't see any danger of him walking becauseof a lack of due process. If he walks because the accusers can't produce enough evidence, then someone is in for a whole lot of embarassment down south.

Again, you're starting to sound like a broken record (or Dr. Demento's greatest hits).

But if you don't use due process, what's the point of a trial? Like George said, take him out and shoot him, and use the money you would have spent putting him on trial for a South Africa-style reconcilliation process.

I see no reason to believe that due process, in terms of arrest, is even relevant when the crimes are along the lines of genocide, rather than shoplifting.

<{POST_SNAPBACK}>

Which, strangely, seems to be in keeping with my argument. So I don't have anything snide to add here.

I've edited this post three times and I still don't know where the problem is. Can anyones see what's wrong with it?

Edited July 18, 2005 by Greg

[BHS]

The US defied the UN by going into Iraq.

Now with Saddam's trial the Bush and Blair administrations are going to pay a heavy prive for this illegal war, which was manoevered by smoking the American public.

<{POST_SNAPBACK}>

You know what? Just because Kofi says the war is illegal doesn't make it so. The US took action that was entirely consistent with 17 Security Council resolutions that were passed following the 1991 invasion and ceasefire. Go blow smoke somewhere else.

[BHS]

There is also the very real prospect that no crimes (chargeable ones) can be proved against Saddam.

The accusqtion of Genocide may not be valid. The so-called genocides do not fit very well with the Convenetion since they were actions against insurrection. They were "justifiable" as actins taken for the security of the State against treason and sedition.Murderous regime his may well have been, but what did he do that is actually criminal?

New ideas that are entering international law may well convict him, but, as IMT says, they have not been accepted by states that are, theoretically, opposed to "brutal dictators."

<{POST_SNAPBACK}>

I love your posts sometimes, mostly when they're not directly opposed to my ideas. I'm narrow-minded like that.

<{POST_SNAPBACK}>

If Saddam didn't commit genocide, then neither did Milosevic, for the same reasons you've listed.

See my previous post in regard to the problems with the ICC.

[Guest eureka]

Perhaps the situations are the same: perhaps they are not. There are differences and it is for the Court to decide that.

There are all sorts of problems with an ICC. There are even more to support one and unqualified support by all the major powers would make it effective.

There will always be delays in bringing perpetrators to justice but there is that in any justice system. Any delay would be mitigated if the powers threw unconditional support to the process with all the diplomatic and economic pressures that they could bring - apart from military.

[BHS]

Perhaps the situations are the same: perhaps they are not. There are differences and it is for the Court to decide that.

There are all sorts of problems with an ICC. There are even more to support one and unqualified support by all the major powers would make it effective.

There will always be delays in bringing perpetrators to justice but there is that in any justice system. Any delay would be mitigated if the powers threw unconditional support to the process with all the diplomatic and economic pressures that they could bring - apart from military.

<{POST_SNAPBACK}>

An ICC without military support would be like a criminal court without bailiffs or police. Diplomatic pressure is meaningless without an army to back it up, regarless of what LLoyd Axworthy thinks.

Under your scheme, participation in the court (that is, making the decision to extradite one of your own citizens or leaders to the court) would then have to be made at the national level. Can you see a country like, say, Sudan participating with the same level of good faith that Canada would?

[Toro]

Somebody should really just do a Ceaucescu on this guy. But its important to have him stand trial if, for anything, it demonstrates the rule of law.

[Guest eureka]

Of course not. But is that not a reason for broad support of the major powers? There many ways of dealing with a regime if the world community is together in a way that precludes the narrow, momentary interest of one or a few.

This topic brings to mind a related topic of not long ago. It may stimulate some thoughts on the broad issues.

The Genocide Convention took many years to gain International agreement and ratification. That was because the USA refused to be a party without aqualifying clause that would make the Convention toothless.

For about twenty years, Senatot Proxmire fought daily to pass the Bill in the US Senate. Eventually, he was successful.

The fallout from the ratification has not been so good and may be part of the reason that genocide has reared its head in the last decade or so.

The bar in what is genocide has now been set much higher as the International Community (read US in the main) is reluctant to term any situation as genocide where it would pretty freely have condemned it previously. This because it would now be obliged to act.

[BHS]

Somebody should really just do a Ceaucescu on this guy.  But its important to have him stand trial if, for anything, it demonstrates the rule of law.

<{POST_SNAPBACK}>

Again, it won't demostrate the rule of law. At best, they'll come up with a halfway decent legal case against him to give a veneer of respectability to his inevitable death sentence. At worst, they won't be able to make a proper case against him but will execute him anyway, respectable veneer be damned.

[BHS]

Of course not. But is that not a reason for broad support of the major powers? There many ways of dealing with a regime if the world community is together in a way that precludes the narrow, momentary interest of one or a few.

This topic brings to mind a related topic of not long ago. It may stimulate some thoughts  on the broad issues.

The Genocide Convention took many years to gain International agreement and ratification. That was because the USA refused to be a party without aqualifying clause that would make the Convention toothless.

For about twenty years, Senatot Proxmire fought daily to pass the Bill in the US Senate. Eventually, he was successful.

The fallout from the ratification has not been so good and may be part of the reason that genocide has reared its head in the last decade or so.

The bar in what is genocide has now been set much higher as the International Community (read US in the main) is reluctant to term any situation as genocide where it would pretty freely have condemned it previously. This because it would now be obliged to act.

<{POST_SNAPBACK}>

Didn't I read that Kofi & co. at the UN were also refusing to call Sudan a genocidal situation, for the same reason? It seems to me that the US is not the only country in the world that isn't too keen to send in the troops every time the "g" word is used.

[I Miss Trudeau]

So let me get this straight. You think Saddam should have criminal trial, but America et al are against this idea because details could come out that would prove embarrassing to them. Can you provide some examples of these details, that might be relevant to whatever charges Saddam is facing?

Go do a search on Rumsfeld and "dual use" technology.

What he was saying is that any trial that happens will be a mockery of justice anyway

Perhaps the original author successfully made the case for that. I haven't read the article, so I won't comment on that. Your recap, however, didn't even come close to justifying the claim.

The entire process has nothing to do with justice and everything to do with retribution. So what's the point?

The first point has not been established. With regards to the second, the point is that the idea that one can just execute anyone that he/she has the physical power to execute is really whats at stake. This idea that people ought to be killed for political reasons is repulsive, whether it is Saddam or "us" doing it.

Yes. Review what I wrote above about retribution.

"Retribution" without trial is not retribution at all, but rather murder.

I guess you didn't comprehend the snippet you were responding to here. What the police do, and what an army does, are two different things for two different situations. Using the same set of rules for judging the legality of the forceful action doesn't make any sense.

Then it is doubly ironic that you used an analogy between the two to support your claim that the trial would be a mockery.

Here we go. "If only Belgian anarchists had the option of charging world leaders with crimes on a daily basis, forcing global governance to come to a standstill, everything would be better." That's what all the of you ICC supporters sound like tom me. You have no idea the can of worms that you're opening.

Until you actually understand and raise a valid objection to what supporters of an ICC envision, you're unworthy of response.

Do you know, at this point I wouldn't expect any other answer from you. As if it's all just a great conspiracy to keep military bondage videos out of the

press.

Again, you're starting to sound like a broken record (or Dr. Demento's greatest hits).

The moderator of this forum has told people to refrain from personal attacks. Its a shame that he doesn't have the time or inclination to enforce that rule.

Which, strangely, seems to be in keeping with my argument. So I don't have anything snide to add here.

Not at all. You claimed that the lack of due process would make a mockery of the trial. I disagreed. Do you now agree with me?

Fuck I hate

Another poster was recently banned for using inappropriate language. You'd do well to watch for that in the future.

[BHS]

Go do a search on Rumsfeld and "dual use" technology.

Great response. All this got me were a million conspiracy theory websites. Can you be more specific?

Perhaps the original author successfully made the case for that. I haven't read the article, so I won't comment on that. Your recap, however, didn't even come close to justifying the claim.

And I sincerely doubt that any argument could ever convince you otherwise. Unless we were talking about Rumsfeld instead of Saddam, maybe.

The first point has not been established. With regards to the second, the point is that the idea that one can just execute anyone that he/she has the physical power to execute is really whats at stake. This idea that people ought to be killed for political reasons is repulsive, whether it is Saddam or "us" doing it.

* * *

"Retribution" without trial is not retribution at all, but rather murder.

Doesn't going to change the fact that he's going to end up dead in any case.

Then it is doubly ironic that you used an analogy between the two to support your claim that the trial would be a mockery.

Huh? Which of my analogies are you referring to?

The situation: an extralegal individual is captured and imprisoned by an extralegal process. Trying to fit this set of circumstances into the context of a normal criminal trial isn't possible, but quite a lot of people are demanding it anyway. So the trial proceeds, the prisoner is/isn't found guilty and is executed in any case. And I'm saying that that's a mockery of justice. It's too bad, for your sensitivities, that Saddam can't be treated like an ordinary individual, but that's the situation.

Until you actually understand and raise a valid objection to what supporters of an ICC envision, you're unworthy of response.

Another useful rejoinder. Please, I'm begging you, don't just assume that your prejudices are the norm that everybody is familiar with. I happen to think my objections to the ICC are all valid. Tell me a little bit about this "vision" you pro ICC people have.

The moderator of this forum has told people to refrain from personal attacks. Its a shame that he doesn't have the time or inclination to enforce that rule.

A couple of little jabs. Believe me, I'm keeping it in check here, bud.

Not at all. You claimed that the lack of due process would make a mockery of the trial. I disagreed. Do you now agree with me?

I didn't get that you disagreed. So, does this mean you're in favour of a show trial?

Another poster was recently banned for using inappropriate language. You'd do well to watch for that in the future.

<{POST_SNAPBACK}>

...(s)he says, quoting the forbidden word. That's hysterical. It reminds me of those instances when some big MSM news organization quotes the most horrible lies about a person from some tacky little tabloid, knowing that they can't be sued for libel because they're just quoting. And then they have the nerve to reprimand the tabloid for saying such terrible things.

Go ahead and tattle if you must. In those instances that I've written things that were wrong or inappropriate I've openly apologized. Otherwise, I stand behind everything I've written. If they give me the boot for that, so be it. There are other forums on the web. If you don't hear from me again on this forum, look for me elsewhere. Cheers.

[crazymf]

Saddam has to have a trial to demonstrate the political power of democracy in action in Iraq. The outcome is obviously guilty, but the sentence is not a forgone conclusion. They may give him life imprisonment to prevent him from becoming a martyr.

The trial will be publicized beyond belief but if he is executed, it will be in secrecy and without ceremony.

And then there's whether he's worth more alive than dead to provide information to the USA.