Monday, October 24, 2005

Shilling For Saddam!!!!

Since even before last Wednesday’s start of Saddam’s now postponed trial we have heard the cries of left wing lawyers and their attendants that Saddam cannot get a fair trial under the current proceedings. While the murder of a lawyer for one of Hussein’s co-defendants is problematic, the intellectual protests against the proceedings are misguided. Far less has been said about the ability of the prosecution to safeguard it’s witnesses. The environment in Iraq works as much for the defendants as against.

Leading the charge is the Human Rights Watch, long time critics of Saddam the dictator now the insurers of Saddam’s rights. HRW has a long list of criticisms, many based on their own special assumptions about how the law and in particular international law should play in this case. Included in this is a detailed reading of particular conflicts between three sets of laws; prior Iraqi law, special Iraqi law enacted for this case, and international law, including UN resolutions. But HRW protests most loudly on the grounds that the trial will not be seen as fair, particularly by Iraqis, and that the death penalty, almost guaranteed by the current legal structure in Iraq if a guilty verdict is reached, is at best immoral, and possibly illegal.

HRW is backed up on this by the UN which continues to insist it should have custody of the trial, but will not support the current Iraqi court because the death penalty is on the table. A parade of liberal American lawyers has expressed “concerns” about the legitimacy of the courts.

One thing at a time. First the court is as legitimate as it can be. While it was created under US auspices, that was done so under “international law” guiding occupying powers. Since the Transfer of Sovereignty occurred in June of 2004, the Iraqi government has continued to recognize the court. This includes legislation by the current, democratically elected legislature.

Secondly, while Hussein is guilty of a myriad of crimes under International Laws, this particular case is about the 148 murders of Shiite males in the city of Ad Dujayl in 1982. It is the sovereign right of the Iraqi state to try this as a domestic murder case. Whatever conflicts with international proceedings occur, the Iraqi court has the right to insist on the first crack at Saddam. Further, the US legal team that created the current strategy was smart. By starting small, local and domestic, they leave the possibility open of international tribunals if the Iraqis fail.

The HRW and its associate legal allies also make the mistake of denying the Iraqi courts their sovereign right to de-conflict the various tensions between the various layers of law, particularly Iraqi domestic laws. That is the proper province national courts, not non-governmental agencies. These self appointed watch dogs also object to a variety of procedural events that they claim are not in keeping with UN safeguards of rights of the accused. In doing so they neglect the extremely problematic atmosphere of the investigation, conducted in an occupied country during an insurgency, where witness intimidation by Saddam’s allies remains in play. And their use of the European High Court’s decisions on UN resolutions is laughable. The Iraqi courts are in no way required to accept European decisions as precedent, and Iraqis have a different view of justice.

In fact it is their misunderstanding of Iraqi culture that truly destroys HRW’s case. They claim that they are looking out for Iraqis by making sure that Iraqis will have a clear sense that the trial was fair. But their continued objections to the death penalty demonstrates a clear gap in the two cultures view of justice. Iraqi, like all Arab and Muslim nations retains the death penalty. It is a historical and cultural part of their conception of justice. While HRW lawyers are certainly entitled to their objections to the death penalty, along with the UN, the fact remains that it is considered part of jurisprudence in the Arab world. In Iraq’s case it is now a democratically approved measure.

HRW can claim to watching out for fairness, based on western standards, but they cannot claim to speak for what Iraqis would call fairness while rejecting Iraqi cultural notions of justice. In fact I think most Iraqis would be more likely to think it unfair if Saddam was exculpated based on some technical legal sophistry. The people of Iraq overwhelming ly know that Saddam their official leader for 25 years is guilty of oppressing them. The minority who do not accept this are unlikely to be convinced at any rate. What Iraqis want most is a public accounting of at least a portion of these crimes, and an appropriate sentencing.

Under Iraqi law, under Islamic legal precepts, for historical and cultural reasons, to these people the appropriate answer is the death penalty. HRW, Amnesty International, thousands of liberal lawyers and the official UN organization can be against the death penalty. But 75 nation states including not only the Arab states, not only newly democratic Iraq and Afghanistan, but Japan, South Korea, the US and other democracies, still retain the death penalty as an option. Distaste for the punishment does not make the process unfair.

Cross posted on THM' Bacon Bits
and at the Mudville Gazette
and at NIF


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