Trying Saddam in Iraq: Threat or Menace?

Those of you who don't know me probably haven't been privy to my Devil's Advocate arguments on Iraq. I intend to revisit them periodically at this blog, although now isn't the time to do it in depth, except to say that the UN's regulations state pretty clearly that any leader guilty of war crimes, crimes against humanity or genocide can and should be removed, having lost his rights of sovereignty. Now, there are a few confusing cross-purposes at work in the articles of the genocide convention which make it hard to know exactly what should be done.

Article 6

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article 9

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Given that Saddam wasn't a signatory to this contract, and that he has yet to be formally charged with genocide, where does The Law say he should be tried? It's an interesting question, in a purely academic sense, but it's also one Americans should be deeply serious about, because the next splashy case in the news could very well be about Abu Ghraib and questions about international versus sovereign law won't seem so abstract all of a sudden.

It's also interesting to note how different Saddam's trial will be from the International Criminal Court's prosecution of Milosevic and his hundred closest friends. (A short and truly excellent primer is on sale here.) Some people -- notably Saddam's defense team, but also Human Rights Watch, two groups who probably never thought they'd agree about anything -- are upset that the trial is being held in Iraq while things continue to deteriorate, although of course they make their cases a little differently. Lawyers:

A British based attorney on Saddam's team, Abdul Haq Al-Ani, insisted in an interview with the BBC that the court's jurisdiction must be dealt with before the trial continues.

Ani denied the defense goal was to grandstand against the US-led 2003 invasion of Iraq. "It's a fundamental legal issue," he said. "Are superpowers entitled to break the law? The answer is not."

If the issue is not addressed then over the years 'regime change' will become customary law, he said.

Another lawyer working for Saddam's defense team, Saleh Armuti, said he wants to put US President George W. Bush on trial "at the same time as the fake trial takes place in Iraq."

HRW:

In an 18-page briefing paper released last week, Human Rights Watch highlighted concerns that the tribunal is at risk of violating basic fair-trial guarantees.

Problems with the tribunal and its statute include:
• No requirement to prove guilt beyond reasonable doubt.
• Inadequate protections for the accused to mount a defense on conditions equal to those enjoyed by the prosecution.
• Disputes among Iraqi political factions over control of the court, jeopardizing its appearance of impartiality.
• A draconian requirement that prohibits commutation of death sentences by any Iraqi official, including the president, and compels execution of the defendant within 30 days of a final judgment.

It will be an important point to consider as Saddam's trial goes forward: should he have been handed over to the ICC, knowing full well that Bush would never do such a thing? I think trying the case in Iraq, with Iraqi legal experts, will be very good for the morale of the Iraqi people, and will not run into the same time-consuming hassles as the Milosevic trial. (It's taken far too long, as even chief prosecutor Carla del Ponte has recognized. Due process is one thing, but Slobo could fairly argue that his right to an expedited trial has been infringed.) If you think reading updates on the Libby leak trial is political engagement, you might consider also familiarizing yourself with the trials of a few men who really abused government power. We may be living in a nascent corporatopia, subjected to Wal-Mart's dehumanizing siren song, and we may be struggling against a badly mismanaged health care system, but -- and it's hard not to be pushy about this -- it sort of pales in comparison when you read testimony from mothers about watching their teenage sons being executed and pushed into a freezing river. It's important to keep some perspective and not get wrapped up in Cheneygate minutiae, is all I'm saying.