Criminal prosecution of Saddam Hussein would appear to be a simple matter. Rarely in the history of human affairs has a single individual been so flagrantly responsible for such obvious 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 there are sure to be strong disagreements on the issue 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 normally would 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 Hussein’s crimes were committed against Iran, where he used chemical weapons in murderous attacks on Iranian soldiers in the 1980s; against Kuwait, which when he transformed that Arab emirate into a vast torture and execution chamber by his aggression of 1990-91; and against Israel when he launched 39 Scud missiles on exclusively civilian areas in Tel Aviv and Haifa during the 1991 gulf war. These countries have an incontestable right to participate in any trial of Hussein and to ensure that their claims for compensation and redress are heard.
Current venue preparations seem to be focused on Iraq rather than on an international proceeding of the sort created at Nuremberg in 1945 or at the United Nations’ specially constituted tribunals for Rwanda and the former Yugoslavia in the 1990s.
This Iraq-based arrangement might be satisfactory, but only if certain judges and prosecutors could be drawn from all other affected states and only if the death penalty is made available. The official UN position, asserted by Secretary General Kofi Annan, that a United Nations tribunal would not offer a death penalty option is unacceptable, and it transforms the very idea of justice into self-parody.
Shall we now, after the liberation of Iraq, accept as “civilized” that the blood of the mass murderer is redder than that of his nearly 1 million victims?
The ancient Hebrews viewed the shedding of innocent blood by tyrants as an abomination that requires similar punishment, decreeing in the Old Testament that “Blood pollutes the land, and no expiation can be made for the land, for the blood that is shed in it, except by the blood of him who shed it.”
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, the pollution of tyrannical homicide would inevitably bring death and starvation to the entire polity.
Only a fool would argue, said the Hebrews and the Greeks, that a murderous tyrant should be immune to a punishment of death. In “The Libation Bearers” of Greek dramatist Aeschylus, the chorus intones: “The spirit of Right cries out aloud and extracts atonement due. Blood stroke for the stroke of blood shall be paid.”
Hussein’s alleged crimes 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 the other nations that signed the conventions are obligated to search out and bring to justice presumed violators.
Under this binding agreement, each of those states has the right and perhaps the obligation to bring persons alleged to have committed grave breaches into its jurisdiction, “before its own courts.”
Under international law and U.S. law, the U.S. has every legal right to bring Hussein before an American tribunal.
The problem 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 because these obligations represent not only expectations under international law but also the “higher law” obligations embedded in the American political tradition.
By their codification of the principle that basic human rights in war and peace are inviolable, the Nuremberg and Geneva obligations reflect perfect convergence between international law and the enduring foundations of the American Republic.
As noted by the 6th Circuit in 1985 (Demjanjuk vs. 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.”
At present it seems certain that the trial will be held within Iraq, but it will be up to the United States to ensure sufficient internationalization of proceedings and adequate provisions for retributive justice, including the penalty of death.
