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Tuesday, November 08, 2005
Is Saddam's Trial Important for peace?

Transitional justice is hard to achieve. With a full-fledged insurgency still raging in Iraq, and legitimate fears about the stability of the new regime, the many observers who are curious about the outcome of this Iraqi national project watch with anticipation. The trial of Saddam Hussein is one of the the many gambles in which the new regime is participating. The chancy nature of the matter was quite apparent on the first day with Saddam trying to bully the judge and the tribunal attempting to demonstrate its power.

A website, entitled the Grotian Moment Blog, believes, in regards to Hussein's trial that is "arguably the most important war crimes proceeding since Nuremberg." The website continues:
the trial of Saddam Hussein is likely to constitute a "Grotian Moment" -- defined as a legal development that is so significant that it can create new customary international law or radically transform the interpretation of treaty-based law. This Website features key documents related to the Iraqi Special Tribunal, answers to frequently asked questions, and expert debate and public commentary on the major issues and developments related to the trials of Saddam Hussein and other former Iraqi leaders.

If we are to believe the claims here, then we must greet the news that "2 Lawyers in Hussein Trial Shot" with heavy hearts. The Grotian Blog, as a result of this shooting, offers:
the public and the press needs to recognize that the defense attorneys in part brought this tragic situation upon themselves when they elected to have their faces and identities broadcast during the first day of the trial, and when they subsequently refused to accept the Iraqi Government and U.S. military's offers of security. Now they are seeking to exploit the tragic -- but not unforeseeable -- murders of their colleagues in an attempt to derail the proceedings.
The blog continues in that vein resolving that the trials should continue:
After the murder of Sadoun Nasouaf al-Janavi, counsel to defendant Awad al-Bander, three weeks ago, the Iraqi Government and the U.S. military each independently offered to provide security for the defense counsel. The defense lawyers declined, saying that they did not trust the Iraqi Government or U.S. military. This was a ploy; a deadly gambit to justify their boycott of the trial and attempt to delay or derail the proceedings....I think that the judges will end up dealing with this problem by requiring the defense counsel to accept US military protection. If the defense lawyers continue to refuse to do so and to boycott the trial, the judges may tell them that as duly appointed defense counsel, they are officers of the court, and have a responsibility to accept the security and continue to participate in the trial, or they can face sanctions such as fines, imprisonment, and disbarment, and they can be replaced by court-appointed defense counsel who will not play these kinds of high-risk games in an effort to disrupt the proceedings.
The blog further posits that to prevent this disruption to the fair legal process, the trial should move to a nearby location.
Iraqi authorities should thus seriously consider moving the proceedings temporarily to a nearby location such as Dubai. A temporary move would preserve the essentially domestic character of the proceedings yet at the same time would also address the concern that proceedings in Iraq cannot take place fairly due to security concerns. Such a move would would both signal the tribunal’s commitment to secure conditions for all participants as well as help improve actual security on the ground.

Eric Posner disagrees with the idea that an impartial smooth trial is the goal. While a legally fair trial would accomplish the professional legal goals of a judicial establishment, Saddam's trial is not primarily a legal question, for Posner, but a political one.
what would the alternative to trial be? Release is out of the question if we care about reducing the violence in Iraq, and an international trial would not eliminate the moral awkwardness because this awkwardness arose from the means of his capture not the form of the trial. Indeed, one suspects that early supporters of an international forum for Saddam must secretly feel relieved that international judges do not have to confront the problem of how to treat a defendant whose seizure resulted from an invasion that violated the UN charter. The problem, then, is that if one cannot condemn the trial of Saddam without dishonoring his victims, one cannot endorse the trial without disparaging the UN charter, which is at the heart of modern international law. What to do? The Eichmann trial provides the precedent here: an inconvenient trial that cannot be made compatible with conflicting norms of international law is best forgotten, and likely will be.

But these are problems for the international community, not for the Iraqis, who would do well to recall the reaction to the Eichmann trial in Israel, where it was a grand (domestic) political success. The Eichmann trial marked a turning point when victims of the Holocaust could be recognized and honored rather than shunned, and the Holocaust itself became central to Israeli identity. The trial of Saddam could play a similar role in Iraq. It could mark the point, in historical memory, at which Iraq abandoned its authoritarian traditions and began the transition toward democracy. Of course, the trial could be failure; it could instead provoke further violence. But if it is a success, the trial will be of great moral and political importance for the Iraqis. As for the rest of the world, it will be a useful even if awkward reminder that the requirements of international law and morality are not always consistent with the needs of a long-suffering people.

Back in September, I agreed with Posner that the question of the tribunal was primarily political. However, the decision was not political simply because the invasion that ousted Saddam was illegal under international law, but also because the actions of some--namely the United States and its allies--would never be investigated whereas the actions of others--namely Saddam Hussein's regime--were left to be demonized. Posner is right that the tribunal smells a lot like the Eichmann trial. But it's also a lot like the Milosevic trial where our war of aggression is retrospectively justified through a legal process that maligns our enemy without implicating us. Saddam's trial is important for peace--now more than ever--because from the ashes of the memory of his odious regime can emerge an invigorated Iraqi constitutional process and democratic government.