Thursday, January 4, 2007

Hussein and the utopians and realists

There two kinds of people. There are utopians who envision the world they would like to see and there are realists who take the world as they find it. There are far fewer utopians than realists, but both have their place. Without utopians there would little initiative to change for the better. Without realists we would have no benchmark by which to judge the wishes and advice of the utopians.

The flaw in utopians is that they often overreach and assume that lofty goals can quickly be reached. They dismiss history and human nature as irrelevancies. They assume that, if properly articulated, their “reasonable” proposals for change will be instantly recognized as right. They overlook the impact of small “p” politics (whose ox will be gored by these ideas) and the overpowering effect emotion can have on reason.

The flaw in realists is that they can be too conservative and try to avoid change. Indeed, most experts who have studied the subject will tell you that avoidance of change is a very natural human characteristic.

So where is this leading?

There are some utopians who decry the trial and execution of Saddam Hussein for a number of reasons.

Hussein as a future witness

They believe that if Hussein had been kept alive he would have been a valuable witness in some as yet speculative future prosecution against unknown Americans and Brits, and possibly against Bush and Blair.

Realists will tell you that, while it is possible that these two may face some civil lawsuits when they step out of office, it is most unlikely that there will some international endorsed reckoning in the criminal sense for these leaders. The world power structure hasn’t changed that much. Remember that these same utopians are the ones who are claiming that the international bodies are being usurped or emasculated by the Bushes and the Blairs. Their successors are not going change that equation,

Hussein didn’t get a fair trial

Secondly, they say Hussein did not get a fair trial. It is important to distinguish between substance and procedure. In criminal prosecutions, procedure trumps all. No matter how strong the evidence is against a criminal, if the procedure is screwed up then our system (North American) might well put that person back on the street to offend again. This often leads to a hue and cry from people saying justice was not served because of a legal technicality. What this tells us is that the public’s perception of justice is different from that of lawyers and judges. Justice requires appropriate punishment for wrongdoers. The justice administered by the legal system only metes out punishment when the system is first followed scrupulously.

Realists will tell you that this justice system works within the accepted boundaries of a liberal democracy, administered by a national government. It also works fairly well for dealing with society’s nobodies. Different considerations come into play when the person in the prisoner’s dock is a head of state, when the country in question does not have our legal traditions, and when the conditions of war are applied, particularly where the head of state has been captured by enemy occupiers who are trying to pacify the country. Such niceties as “Miranda” warnings in the United States, Habeas Corpus in Canada, and “preservation of the chain of evidence”, as examples of our procedural requirements, may not be available or applicable in the circumstances I just outlined. There may be others.

Many of the commentators on the fairness of Hussein’s trial say that, although it fell short of certain standards of procedure, on balance, the outcome was justified by the quality and the weight of the evidence against him. They did not feel there was such an egregious breach of trial procedure that his conviction would be unsupportable. In short, public justice was served.

Here is an extract from a legal scholar’s review of the written judgment of the Iraqi Court of Appeal:

Observations on the Dujail Trial Opinion

The Tribunal’s findings of fact are extremely detailed. The Opinion explains why the testimony of certain witnesses was believed and why others were not. It indicates that hearsay testimony was not given much weight; nor was Saddam’s various admissions. The Opinion describes each piece of documentary evidence, and details the steps undertaken to authenticate the signatures of Saddam Hussein and the other defendants on these documents. And it explains that all of the documents considered by the Tribunal were given to the Defense 45 days before the start of the trial. Reading the Dujail Opinion, one can only conclude that Saddam and the other defendants were convicted on the strength of their own records, much like the Nazis were at Nuremberg.

The Tribunal’s legal analysis explains the theory of criminal responsibility applicable to each defendant and fully examines each of the defendant’s possible legal defenses. From the point of view of establishing a noteworthy legal precedent, two points stand out in the Dujail Opinion.

First, Saddam’s main defense was that as a leader, he was entitled to take action against a town that had tried to assassinate him and was populated by insurgents and terrorists allied with Iran at a time when Iraq and Iran were at war. The Opinion details why the actions taken against the town of Dujail and its inhabitants “was not necessary to stop an immediate and imminent danger” and how the actions were disproportionate to the threat. In this way, the Opinion makes clear that there is a line to be drawn in every country’s fight against terrorism, and that Saddam and the other defendants crossed that line.

For the full analysis and other detailed information, go to this website

Hussein’s trial was manipulated by the Americans

This isn’t so much a utopian thing as it is an anti-American expression. In fact, it is pretty easy to argue that, far from being able to manipulate anything in Iraq, including this trial, the Americans have totally lost control. There is a civil war being waged by Iraqis and it is neither one the Americans want nor one they can stop. It is not in America’s interest to see this continue.

Some people maintain that the U.S. imposed America’s criminal procedure on Iraq. They must not have read the May, 2005 Amnesty International brief on this subject. Here is an extract:

National law which applied prior to the fall of Saddam Hussein’s government remains in force today, unless amended by new legislation. Article 17 of the Tribunal Statute states that subject to the provisions of Statute and the Rules:
"the general principles of criminal law applicable in connection with the prosecution and trial of any accused person shall be those contained:
i) in Iraqi criminal law as at July 17, 1968 (as embodied in The Baghdadi Criminal Code of 1919) for those offenses committed between July 17, 1968 and December 14, 1969;
ii) in Law Number 111 of 1969 (the Iraqi Criminal Code), as it was as of December 15, 1969, without regard to any amendments made thereafter, for those offenses committed between December 15, 1969 and May 1, 2003; and
iii) and in Law Number 23 of 1971 (the Iraqi Criminal Procedure Law)."

AI was complaining that the Iraqi legal code would be utilized in Hussein’s trial and AI believed it was not up to snuff by International standards. Amnesty International is one of the favourite organizations of utopians.

What the Americans did do was give the Iraqis training in legal and judicial procedure. What the Iraqis judges then did was to follow their own practices and ignore the American advice. See the November 6, 2006 in the New York Times, by Judith Preston.

Hussein should have been tried in the International Court

Along with the United Nations the AI is another favourite organization of utopians. And it has shown itself to be the equal of the UN in its ineptitude in the one real case it tried against another murdering head of state, Slobodan Milosevec.
Why utopians think that this judicial body is somehow better able to deal out justice than an Iraqi court escapes me. Surely, common notions of justice suggest that a criminal should be tried by his or her peers when the crimes have been committed within the jurisdiction of the parties, when that country shows a willingness to conduct a trial (unlike Serbia). Hussein was an Iraqi. He murdered Iraqis. He was being tried in an Iraqi court, prosecuted and defended by Iraqi lawyers, and judged by Iraqi judges. The Iraqi people should have some right to bring one of their own to justice.

The real reason utopians want to have the IC take over is because they want to see the western international community put on trial. They want George Bush and Tony Blair dragged into court to explain themselves (preferably to be charged and tried themselves). This would be the real “show trial” and kangaroo court. In such a circus, Hussein would be a sideshow and justice for Iraqis harmed by him would be a forgotten issue.

There is an old saying in law, “justice delayed is justice denied.” In Ontario, a few years ago, the backlogs in the courts was so bad, the judges began to throw cases out of court that were more than two years old, no matter how serious the charges nor how meritorious the case was against the accused.
I doubt any of Milosevec’s victims felt that justice was done when his trial dragged on for 4 years, with no end in sight, and fizzled out when he died in jail, never having reached a verdict. And one the reasons it crawled on forever was because prosecutors were trying to prove every single criminal accusation made against the defendant in his entire career as a dictator. The Iraqis wisely brought only a couple of easily proved charges against Hussein.

No comments: