LONDON – The occupying authorities in Iraq should get their legal skates on. Any delay in putting Saddam Hussein in the dock on war crimes charges is going to make the work of introducing democracy more difficult. It has become all too apparent that the long drawn out trial of former president Slobodan Milosevic at the war crimes court in The Hague has played into the hands of the extreme Serbian nationalists, who showed their strength in the recent election, not only forming the largest single party in parliament but also electing in absentia Milosevic himself.
It is actually easier in many cases, where the institutions of a new regime are weak, to build peace after war or civil strife by declaring an amnesty, as was done fairly recently in Mozambique, Macedonia and South Africa, although in the latter’s case it was done in conjunction with a truth commission which allowed those suspected of murder and torture to confess their horrors in return for immunity. Even in Afghanistan today the position of both the U.S. military occupation and the UN Special representative, Lakhdar Brahimi, has been to resist those who have demanded a vigorous pursuit of war criminals. But when there is a clear figurehead a trial should not be avoided.
Although there is no constituency, outside the ranks of his supporters, for not trying Saddam Hussein it is an absolute imperative that the job be done quickly. Waiting for Iraqi judges to be vetted, trained and given the expertise necessary for such a highly charged trial is going to mean a timetable that extends well beyond the planned elections in late 2005- the preferred solution of both Washington and London. It would be so much better if the U.S. and the U.K. would ask the Security Council to authorize the newly formed International Criminal Court (ICC) to take the case (and amend its statutes to deal with crimes committed before 2002). That of course is not going to happen. But at the least the court should be internationalized with highly experienced judges proficient in international law, on the lines of the UN’s war crimes court for Sierra Leone. Moreover, to speed its work, it should deal only with this single case and resolve to get a judgment before a general election is called, so that Iraq can quickly put the incendiary issue behind it.
The bugbear is the Bush administration’s visceral hatred of international law. Yet, until the U.S. is persuaded of the virtue of expanding the reach of international law, the cause of raising the world’s standards on human rights is going to be, if not still born, at least oxygen deprived.
It does not help that legal scholars, like Yale law professor, Jed Rubenfeld, make the argument that extending international law is “a constraint on [American] democratic nationalism”. In an article in the “Wilson Quarterly”, (reprinted in the current issue of Prospect magazine), he argues that the U.S. now rightly shies away from an extension of the writ of international law because it gives international judges and bureaucrats the right to overrule the popular and democratic will in the U.S., an un-American thing to do.
This seems an extraordinary argument to those who have watched the civil rights revolution being ignited by the 1954 Supreme Court ruling on the desegregation of public schools, a decision that clearly bucked the tide of opinion at the time, in the north as well as the south. Moreover, it seems to overlook two major decisions of the Reagan Administration- to seek the successful Senate ratification of the UN conventions outlawing genocide and torture, the latter with its principles of universal jurisdiction which not even the ICC has. Not least, it ignores that it was mainly American scholars and diplomats who pushed for the Yugoslavia court and who nurtured the idea of a permanent international court to try war crimes. Initially, the U.S. government was the single most important advocate of the court’s creation- before the Pentagon had the good fortune to best President Bill Clinton while his guard was down at the time of the Monica Lewinsky affair.
It is a convenient partisan smokescreen of the political moment to suggest that the America of the Constitution born of the Enlightenment is inevitably set on a course away from the rest of the world on the future of international law. The U.S. is, on the contrary, the natural leader, and the sooner it returns to its base the sooner we can get the trial of Saddam over and done with and then get on with the hard work of making the world more effective in deterring future tyrants of his type from calling the shots. In truth, the U.S., the world’s de facto policeman, needs an international court to try suspect war criminals at least as much as anyone else.
