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Prosecuting Saddam: Which Paths To Justice?


Beres-Louis-Rene

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Under international law, Saddam Hussein is the quintessential Hostes Humani Generis, a “Common Enemy of Mankind.” Prosecuting the former Iraqi dictator, therefore, would now appear to be a decidedly simple judicial matter. After all, rarely in the history of human affairs has a single individual been so flagrantly responsible for multiple crimes. Seldom has a single head of state been involved so directly and unambiguously in Crimes of War, Crimes Against Peace, Genocide and Crimes Against Humanity.Yet, the so-called “international community” has often revealed a marked penchant for acting “strangely,” even in the most boldfaced matters of justice and even in the aftermath of the history-making Nuremberg Trial. Not surprisingly, this penchant has been especiallypronounced in matters involving Jews and the Jewish state.

In May 1960, Israeli agents of the Mossad captured notorious Nazi war criminal Adolf Eichmann in Buenos Aires, and flew him to Jerusalem for trial. Although Eichmann was the undisputed murderer of over a million Jewish children, Israel was subjected to a strident barrage of international criticism for its actions. The United Nations Security Council voted unanimously, with United States approval, to condemn Israel for “endangering international peace and security.”

In this nation’s capital, The Washington Post editorialized sanctimoniously that Israel’s apprehension and planned prosecution of Eichmann was “tainted by lawlessness,” and solemnly referred to Holocaust victims as an “imaginary Jewish ethnic entity.” Time magazine accused Israel of “inverse racism,” and The New York Times, ever-vigilant where Jewish rights are concerned, criticized Israel’s abduction in another sovereign territory on the grounds that “no immoral or illegal act justifies another.”

As for U.S. church publications, the American Christian community was generously represented by such fair-minded newspapers as The Unitarian Register, which compared “the Jew-pursuing Nazi with the Nazi-pursuing Jew,” and a Catholic paper named The Tablet, which stated unashamedly that “The Eichmann trial is a reminder that there are still some influential people around who – like Shylock of old – demand their pound of flesh.”

In any event, in the current matter of humankind vs. Saddam Hussein, there are already strong
international disagreements on issues of venue, on the composition of an appropriately authoritative tribunal, and on the legal correctness of the death penalty.

Under traditional international law, primary prosecutorial jurisdiction would normally be linked to the country in whose territory the crimes took place. Although it would seem obvious that Iraq should come to mind before any others, it is also true that Saddam’s crimes were committed against Iran (when he used chemical weapons in murderous attacks upon Iranian soldiers in the 1980s); against Kuwait (when, along with allies from the Arafat- directed Palestine Liberation Army, he transformed that Arab emirate into a vast torture and execution chamber by his aggression of 1990-1991); and against Israel (when he launched 39 SCUD missiles against exclusively civilian areas in Tel-Aviv and Haifa during the 1991 Gulf War).

These states now have an incontestable right to participate in any planned trial of Saddam Hussein, and to ensure that their particular claims for compensation and redress be properly heard. Significantly, in reference to Israel, virtually no one in the “international community” has spoken openly on behalf of its particular right to participate in any prosecution of Saddam Hussein. Once again, it is as if Jewish rights and human rights were mutually exclusive.

Current venue preparations for the trial of Saddam seem to be focused on Iraq rather than upon a more broadly international proceeding of the sort created at Nuremberg in 1945 or at the specially-constituted tribunals for Rwanda and the former Yugoslavia established by the United Nations in the 1990s. This Iraq-based arrangement might conceivably be satisfactory, but only if certain judges and prosecutors could be drawn from all other affected states, including Israel, and only if the death penalty were made available.

The official UN position, asserted by Kofi Anan on December 16th, that a United Nations tribunal would not offer a death penalty option is not merely unacceptable; it transforms the very idea of justice into self-parody. Shall we now, after liberation of Iraq, accept as “civilized” that the blood of the mass murderer is redder than that of his many victims? Should Eichmann have been spared the hangman’s noose on the ground that his life was more precious than that of a million Jewish children?

The ancient Hebrews viewed the shedding of innocent blood by tyrants as an abomination that
requires like punishment: As we read in Torah: “…blood pollutes the land, and no expiation can be made for the blood that is shed in it, except by the blood of him who shed it”  (Numbers 35:33).

Interestingly, this belief parallels the ancient Greeks, who viewed retributive justice as an eternal and integral part of the civilized world. Left unpunished, in their view, tyrannical homicide pollution would inevitably bring death and starvation to the entire polity. Only a fool would argue, said both the ancient Hebrews and the Greeks, that a murderous tyrant should be held immune to a punishment of death.

In The Libation Bearers of the Greek dramatist Aeschylus, the chorus intones what might have well been extracted from the earlier Lex Talionis of the Jews: “The spirit of right cries out aloud and extracts atonement due. Blood stroke for the stroke of blood shall be paid.”

The alleged crimes committed by Saddam Hussein are so serious in law that they are called Crimen Contra Omnes, “Crimes Against All.” All of these crimes are known as “Grave Breaches” of the 1949 Geneva Conventions. According to Article 146 of the Fourth Geneva Convention, the United States and all other parties are obligated to search out and bring to justice presumed violators. Indeed, under this binding agreement, each state party has the right and perhaps the obligation to bring persons alleged to have committed “or to have ordered to be committed” Grave Breaches into its own judicial jurisdiction; that is, to bring the alleged wrongdoers “before its own courts.” Under both international law and United States law, this country would now have every legal right to bring Saddam before an American tribunal.

Pertinent authority to prosecute in its own federal district courts can be found at sections 818 and 821 of title 10 of the United States Code (which form part of an extraterritorial statutory scheme) and at 18 U.S.C., section 3231. The problem, of course, is that exercising such an option would make us all more vulnerable to new waves of anti-American terrorism.

From the point of view of the United States, the Nuremberg and Geneva Convention obligations to bring major criminals to trial are doubly binding. This is because these obligations represent not only expectations under international law, but also the Higher-Law obligations embedded in the American political tradition – obligations drawn from ancient Jewish law and civilization. By its codification of the principle that basic human rights in war and peace are now inviolable, the Nuremberg and Geneva obligations reflect perfect convergence between international law and the enduring foundations of our American Republic.

As noted by the Sixth Circuit in 1985 (Demjanjuk v. Petrovsky), “The law of the United States includes international law” and “international law recognizes ‘universal jurisdiction’ over certain offenses.” Article VI of the U.S. Constitution and a number of Supreme Court decisions make all international law, conventional and customary, the “supreme law of the land.” And the Nuremberg Tribunal itself acknowledged that the participating powers “have done together what any one of them might have done singly.”

The 18th-century Swiss scholar of international law Emmerich de Vattel commented: “As for those monsters who, under the name of the sovereign, act as a scourge and plague of the human race, they are nothing more than wild beasts, of whom every man of courage may justly purge the earth.” Acknowledging such wisdom, President Bush undertook “Operation Iraqi Freedom” last Spring with a view to rightly ridding the world of Saddam Hussein, a “Common Enemy of Mankind.” Now that this “monster” is finally in American custody, it is essential that his upcoming judicial prosecution will be free of any form of political obstruction, that his trial will include a death penalty option, and that Israel’s particular prosecutorial rights will not be ignored, but rather be fully affirmed and included.

 

(c) The Jewish Press 2004. All rights reserved.

 

LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books and articles dealing with international criminal law. The Strategic and Military Affairs Analyst for THE JEWISH PRESS, he has published extensively over the years on the question of legal prosecution for Saddam Hussein.
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About the Author: Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.


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