Monday, September 26, 2005

Justice for Saddam.

The New York Times today featured two Op-Ed pieces, written by law professors, on the upcoming trial of Saddam Hussein for the 1982 Dujail murders. The Times claims that its Op-Ed page is designed to allow for the publication of views that differ substantially from the papers own editorial position. Why then put two pieces together that are essentially critical of the upcoming trial?

Eric Posner a professor of Law at the University of Chicago proposes to instruct the Iraqi Tribunal on how to mete out justice. He does so based on his perceptions of International Law, and in the name of political stability in Iraq. He argues a case that the court should frame Hussein’s conviction in very narrow terms, that would be inapplicable to lower level participants. This is a privileged American Law Professor, who has never spent a day in the town of Ad Dujail, or anywhere in Iraq to my knowledge, calling on the Iraqi justice system to go easy on conspirators in a mass murder. Because he thinks it’s what’s best for them.

As I wrote directly to Mr. Posner, it is unfortunate that many of the co-conspirators have escaped justice on this matter, and will never be charged in spite of considerable evidence against them. The so called low level Baathists who are vulnerable to prosecution have mostly decided to forcibly oppose the new Iraqi government. Like liberal theorists from other disciplines, Posner proposes rewarding the murderous behavior of Saddamists and the insurgents, on the hopes that they will accede to the new administration. This is a man who calls himself a lawyer.

The reason that Saddam Hussein is being tried for this particular case, is that the soldiers who were responsible for Ad Dujail in 2004, were horrified by accounts of the mass murder that they collected witness statements in the hopes of bringing justice to these citizens. At the time some of the perpetrators walked free in the city, still intimidating the local Shiite majority. Today because of thinking like Posner’s many of are free again.

If Iraq chooses to heed the advice of Mr. Posner’s ilk they should at least look to the model of South Africa. The Truth and Reconciliation Commission there allowed for amnesty for crimes in the name of the state. But the forgiveness required a full and public accounting and an admission of guilt and regret. This process allowed for participation and rebuilding and for public accountability. So far most of Iraq’s oppressive clique has denied guilt and continued to resist a democratic future. Mr. Posner would reward their obstructionism.

Gary J. Bass, law professor at Princeton argues against sentencing Saddam to death for these murders. He acknowledges all the reasons that this is desirable up front, protecting the lives of the Iraqi court officers, and minimizing the spectacle. But he argues that without a series of trials that fully accounts for all Saddam’s crimes justice cannot be served.

This is not the case. If Saddam Hussein is sentenced to death on the 150 counts of murder stemming from the Dujail incident, justice will certainly be served. Should the Iraqi court choose to execute that sentence without pursuing other counts that will be their sovereign decision. And no one in America or in Iraq will be under the impression that Hussein is being put to death for those crimes alone. Iraqis like Americans understand the concept of a symbol. In a very real way the Dujail murders serve as a symbol for all Hussein’s crimes against humanity.

As for a full accounting, if Hussein is tried and executed for the Dujail murders it may enable the courts to pursue his co-conspirators on the hundreds of other counts. With Saddam truly gone, resistance to the Iraqi government may diminish. Sunnis and Shiites alike will see that the current regime is empowered as the legitimate embodiment of coercive force.

Finally both Lawyers seem to either mistake or intentionally conflate the concepts of sovereign and international law. Make no mistake. This case is about Iraqi law and Iraqi justice. Saddam’s crimes may be genocidal. They can be classified as crimes against humanity. But he is being tried for 150 counts of statutory murder in a domestic Iraqi court. This is not about International law. This is about Iraqi law and Justice for Saddam’s victims.


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