Tuesday, December 16, 2003

A perfect role for the ICC!

They got him in the end, of course - dragged out of a hole in the ground when the loyalty finally ran out. The now-whats gape, though. On the same weekend no less than 30 Iraqi policemen were killed. There was much talk about his trial. About crucial intelligence, weapons, terrorists. Does anyone really believe, though, that everything will change overnight? According to the public statements of the US commanders in Iraq, the vast majority of attacks come from the people they call the FRLs, former-regime loyalists, and not from the foreign terrorist element their political masters seem obsessed by. You could ask, for example, Major-General Chuck Swannick of the 82nd Airborne Division, who I quoted on this blog some time ago as saying exactly that at the same time that Paul Bremer was assuring the world that "90% of the threat comes from foreigners", although he confessed to having no information to support that. Why will they give up because their leader is jailed? Will this not just infuriate them more, or lift the spectre of a Ba'athist restoration from potential sympathisers?

Even if the foreign infiltrators did exist in the numbers we are asked to believe they do, surely the capture of Saddam Hussein would be a victory for their side? After all, the secular national socialism he espoused was equally offensive to the jihadis as Western liberal capitalism. Even in his later phase of swinging towards Islam post-1991, they still could not work together. Anyway, this all assumes a solution to the question of what to do next. Clearly, there must be some reckoning for the victims of his wars and persecutions. It ought to be obvious that we must make an example of civilised conduct in doing so. And the biggest problem in doing so is simply practical - where can a trial be conducted? How should it be conducted? Under which laws should it be conducted? It would be absurd to place him on trial in Iraq now - under the criminal code written by his government, it might be that he had committed no crime! Not even to think of the security problem. It would be very unlikely that a trial under the law of either Iran or Kuwait could be considered fair - and what about offences committed in Iraq against Iraqis?

The only code of law that unequivocally applies to all the possible charges against Saddam is international law. There are the crimes against humanity specified in the Geneva Conventions - genocide, murder of prisoners and the use of illegal arms against Iran. But Iraq is not a party to all the Conventions - can they apply retroactively? There are also the Genocide Convention and the Convention on the Prevention of Torture, and the UN Declarations on Civil and Political Rights could inform any judgement. On the question of retroactivity, it should be remembered that the provisions of the Geneva Conventions on crimes against humanity and war crimes are considered to be obligations "erga omnes" - they are crimes against all states based on the customary law of civilised nations. So that would be covered. There is, of course, one tribunal operating specifically for such purposes.

It's the International Criminal Court in The Hague. The one the Americans passed a law to attack if it prosecuted US soldiers. A pity, then, that its statute is limited to crimes committed after July, 2002 - otherwise, what could be better? One good piece of news is that the Iraqi "governing council"'s own tribunal has used much of the ICC statute in its preparations.

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