Speeding
up and internationalizing
Saddam's trial will help
the cause of human rights
By
Jonathan
Power
January 16, 2004
LONDON - The occupying authorities in Iraq should
get their legal skates on. Any delay in putting Saddam
Hussein in the dock on war crimes charges is going to
make the work of introducing democracy more difficult. It
has become all too apparent that the long drawn out trial
of former president Slobodan Milosevic at the war crimes
court in The Hague has played into the hands of the
extreme Serbian nationalists, who showed their strength
in the recent election, not only forming the largest
single party in parliament but also electing in absentia
Milosevic himself.
It is actually easier in many cases, where the
institutions of a new regime are weak, to build peace
after war or civil strife by declaring an amnesty, as was
done fairly recently in Mozambique, Macedonia and South
Africa, although in the latter's case it was done in
conjunction with a truth commission which allowed those
suspected of murder and torture to confess their horrors
in return for immunity. Even in Afghanistan today the
position of both the U.S. military occupation and the UN
Special representative, Lakhdar Brahimi, has been to
resist those who have demanded a vigorous pursuit of war
criminals. But when there is a clear figurehead a trial
should not be avoided.
Although there is no constituency, outside the ranks
of his supporters, for not trying Saddam Hussein it is an
absolute imperative that the job be done quickly. Waiting
for Iraqi judges to be vetted, trained and given the
expertise necessary for such a highly charged trial is
going to mean a timetable that extends well beyond the
planned elections in late 2005- the preferred solution of
both Washington and London. It would be so much better if
the U.S. and the U.K. would ask the Security Council to
authorize the newly formed International Criminal Court
(ICC) to take the case (and amend its statutes to deal
with crimes committed before 2002). That of course is not
going to happen. But at the least the court should be
internationalized with highly experienced judges
proficient in international law, on the lines of the UN's
war crimes court for Sierra Leone. Moreover, to speed its
work, it should deal only with this single case and
resolve to get a judgment before a general election is
called, so that Iraq can quickly put the incendiary issue
behind it.
The bugbear is the Bush administration's visceral
hatred of international law. Yet, until the U.S. is
persuaded of the virtue of expanding the reach of
international law, the cause of raising the world's
standards on human rights is going to be, if not still
born, at least oxygen deprived.
It does not help that legal scholars, like Yale law
professor, Jed Rubenfeld, make the argument that
extending international law is "a constraint on
[American] democratic nationalism". In an article
in the "Wilson Quarterly", (reprinted in the current
issue of Prospect magazine), he argues that the U.S. now
rightly shies away from an extension of the writ of
international law because it gives international judges
and bureaucrats the right to overrule the popular and
democratic will in the U.S., an un-American thing to
do.
This seems an extraordinary argument to those who have
watched the civil rights revolution being ignited by the
1954 Supreme Court ruling on the desegregation of public
schools, a decision that clearly bucked the tide of
opinion at the time, in the north as well as the south.
Moreover, it seems to overlook two major decisions of the
Reagan Administration- to seek the successful Senate
ratification of the UN conventions outlawing genocide and
torture, the latter with its principles of universal
jurisdiction which not even the ICC has. Not least, it
ignores that it was mainly American scholars and
diplomats who pushed for the Yugoslavia court and who
nurtured the idea of a permanent international court to
try war crimes. Initially, the U.S. government was the
single most important advocate of the court's creation-
before the Pentagon had the good fortune to best
President Bill Clinton while his guard was down at the
time of the Monica Lewinsky affair.
It is a convenient partisan smokescreen of the
political moment to suggest that the America of the
Constitution born of the Enlightenment is inevitably set
on a course away from the rest of the world on the future
of international law. The U.S. is, on the contrary, the
natural leader, and the sooner it returns to its base the
sooner we can get the trial of Saddam over and done with
and then get on with the hard work of making the world
more effective in deterring future tyrants of his type
from calling the shots. In truth, the U.S., the world's
de facto policeman, needs an international court to try
suspect war criminals at least as much as anyone
else.
I can be reached by phone +44
7785 351172 and e-mail: JonatPower@aol.com
Copyright © 2004 By
JONATHAN POWER
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"Like
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