Trials, Tribunals, Charades

Former Iraqi leader--call him dictator, president, or strongman as it suites your political interests-- Saddam Hussein is slated to go on trial 19 October 2005. Unsurprisingly, Hussein's lawyers say that it will take years to address all of the charges levied against their client. The United States and Britain are, naturally, leaning heavily on the Iraqi government to try Saddam, and, at least as far as the United States is concerned, have been equally resistant to the idea that the International Criminal Court should hold these trials. This trial is very important and crucial to a number of interests on the international and domestic Iraqi scene, and, if done well, will accomplish a number of objectives, except for justice toward the victims of the former regime and fairness toward the disposed dictator.

(1) This trial is important for the current Iraqi regime.

Legal regimes primarily concern themselves with (re-)constructing a narrative of the past to achieve a consensus or verdict for the present. War crimes trials and tribunals give the domestic regimes who implement them a favorable version of the past aimed at the legitimization of the policies and public memories of the current political order. Just as the Rwandan post-Hutu dominated Habyrimana regime used the ICTR to paint a picture of genocide as they massacred Hutu refugees in Rwanda and Uganda, so the current Iraqi regime needs to construct a master villain/ criminal to justify its American-backed usurpation of power from the Baathists.

(2) America and Britain need the humanitarian intervention argument to stand.

With the other major reason for their intervention, counter-proliferation, proved baseless with a very noticeable lack of nuclear weapons, the Americans and the British need to give a reason for their illegal war that their respective publics can stomach. The worse Saddam seems, or more accurately, the worse his actions are portrayed ex post facto, the more the Second American-Iraqi War seems like a humanitarian intervention rather than an illegal international war. Like Milosevich, Saddam needs to have been a Hitler in the making; the mass killing of Kurds, the gassing of entire communities, and the brutal suppression of an independent critical public are all elements of public memory within easy reach of any intelligent propaganda machine.

International opinion also needs this war to seem like something other than a war for oil. Had Saddam been dealt with extrajudicially, then how would critical journalists and historians be able to distinguish with the 2003 American war of Aggression against Iraq from the colonial and imperialist wars of the 19th and 20th centuries where powerful countries acquired and executed local strongmen after their uses for them had pass?

(3) The trial needs to prevent the Baathist from ever coming to power.

The Baathists and their government-by-terror also need to be delegitimized by the trials. Even better if connections to Syria and Syrian-backed militants can be found in the course of the trial. The outright criminalization of the Baathist party would have been unwise; however, the complete and utter discrediting of said party, such that no respectable leader would have claim to be a neo-Baathist in the same way no German rightist politician with hopes of high office has ever claimed to be a neo-Nazi, could prove to be one of the best safeguards against a Baathist tyranny of governance-by-terror from reemerging.

(4) The institution of the rule of law-- the "independent judiciary of Iraq"--, rather than a political organization, seems more neutral than a specially appoint United States commission.

Something about legal regimes, as opposed to political organizations like a legislature or an executive branch, raises the probability that we would accept the outcome as fair. The history produced by such a legal inquiry, similar to the inquiry produced by Nuremberg, the ICTY, or the ICTR, seems less biased than say a history book released by a government. Let us forget, for the moment, that the discipline of history has been, and always will be, the search for a usable past, and pay lip service to the idea that a judiciary under strict orders from the United States government is going to give the former leader that we spent a least a decade trying to rid ourselves of anything resembling a fair trial.

What, then, would I suggest for a more fair trial? This is naturally a little naive as decoupling the process of legal inquiry from pre-existing material and social power relations is as ludicrous as it is unlikely.

(1) Investigate the circumstances of the crimes of the Hussein regime.

Unless we wish to assume that Hussein was a completely irrational actor, it would be reasonable to assume that he had reasons for perpetrating or allowing to occur the crimes which happened under his watch. Rather than looking at the last crime-- the dead bodies, the moving tanks, the invasion of Kuwait-- the court should analyze all the circumstances, domestic and international, which incentivized Saddam in making the choice that he made. A number of Western suspects may also be implicated in this.

(2) Bring all the actors responsible to answer before the court of law.

One of my main problems with the trials as they are occurring now is with Saddam being blamed for most if not all of the problems of the region the non-national victims of the former regime and its Cold War allies will never see any hope of justice. Will the execution of Saddam pay for the damages of the Iran-Iraq war? Who assist the widows and childless parents of the wars by and against Saddam? Will Saddam's dead body rebuild Iraq from two decades of devastation? Is Hussein's death rattle going to serve as justice to the servicemen of his country and other countries who fought in and against Iraq?

The establishment of liability of all the actors-- including the military leaders of other nations-- will more adequately allow the judicial institutions to address the sense of injustice and the actual loss of the families of the region.

(3) Consider the effects of the sanctions and extended the possibility of reparations.

The international economic sanctions, before they were modified, targeted the civilian population of Iraq, and laid waste to many families and the infrastructure necessary for human life today. These sanctions, no less lethal than Nazi gas chambers and no less humane to the Iraqis than the Hutu-government machetes were to the moderate Hutu and Tutsi of their countries, require reparations from all the nations who participated in the sanctions, and an accounting of the human loss of life. These victims, precursors to the thousands of Iraqis dead today from Western technologies of warfare, deserve justice.

(4) Investigate the anti-government terrorism of the Kurds.

Saddam's government was not the only institution of terror in pre-2003 Iraq. Many of the Kurdish independence groups targeted other Iraqis and Iraqi national property for terrorism in the waging of their struggle for independence. If the law is to see any crimes of the past, it must view all crimes of the past. If one war leader is to kneel before the seat of the law, then all war leaders must appear for a recounting of their deeds.

Unfortunately, I believe that the Saddam trials are going to be a farce and there is very little that we can do to stop this from being so. However, those of us who believe in "liberty and justice for all" should not sit quietly as this occurs.

Posted by John Stevenson at 8:30 AM |