Wednesday, November 30, 2005

Question on the Iraq War and Saddam's Trial

   Eric at Classical Values asks an interesting question in a post from yesterday about the ongoing trial of Saddam Hussein:

What I want to know is why Ramsey Clark seems to be so alone in honestly recognizing what logically flows from the antiwar position.

Quite simply, if the war was wrong, and if the U.S. occupation is wrong, then it's wrong for Saddam Hussein to be on trial. By all logic his overthrow was illegitimate and he should still be president.

Why are his supporters so silent?

The post generated some discussion over there, so I thought I would continue it here. That said, let's attempt to tighten the question just a little bit. After all, I'm pretty sure we all pretty much agree that Saddam is a bad man who would likely be found guilty of some variety of crimes against humanity. But, that's not the pertinent question.

   If the war in Iraq was illegitimate, and the occupying forces had no cause to be there, then under what sovereign authority does the new Iraqi government try Saddam? Is it any worse for someone who is guilty as sin to be tried and convicted by an arm of a government whose legitimacy is subject to question than by one whose legitimacy is not?

   Again, this is not a question about an individual's guilt, but about a state's authority (or lack thereof) to exercise power over that individual.

   I have to admit, under those assumptions, I am yet to arrive at a satisfactory answer. Any takers?

UPDATE: Eric, who started the ball rolling at his own blog, checks into the comments section to set out his position better than I can.


Blogger Kevin said...

I know you're trying to tighten the argument, but my main objection was to the assertion that those opposed to the war were somehow, by extention supporters of Sadaam. That is absurd, and I told him at Classical Values.

As for the issue of the sovereignty argument, I think that there is another point to be made. Is it correct to try a man for a crime that wasn't a crime at the time it was committed? Our own Constitution forbids such retroactive enforcement, and I think that is a good principle.

I think that Sadaam should have been sent to The Hague to bunk with Milosovic and be tried there.

I'm willing to bet that that idea was quickly rejected by the anti-UN crowd.

10:57 AM  
Blogger Kevin said...

I almost forgot:

It is customary, and probably in the Geneva Convention (somebody else can confirm this, perhaps), that an occupying army be responsible for upholding legal institutions in the conquered nation. This would answer the question posed at Classical Values.

11:00 AM  
Blogger Bostonian Exile said...

Starting with your last point, you are correct as to the Geneva Conventions (based on a very quick scan and speaking from no real place of authority), but that only sidesteps the question. My question has less to do with the occupying forces at this point than the Iraqi courts conducting the trial. Also, while I am inclined to agree that he should have been sent to The Hague, that counterfactual is not really that helpful to my question either.

Further, Iraq is -- and has been for years -- a signatory to the Hague and Geneva conventions. Not only is murder a crime there, but joining those treaties also opens the door to war crimes and crimes against humanity. So, the ex post facto angle is materially weakened.

Finally, in defense of Eric at Classical Values, I don't necessarily think he was saying that everyone who is against the war supports Saddam. He is a lawyer by training writing about Ramsey Clark's defense, and was less than explicit in his meaning. That is, I doubt he considers Ramsey Clark a Saddam supporter per se, and was speaking about those who would be like-minded. (He is welcome to correct me on this point.)

That said, I think it is woefully naive to believe that there are no supporters of Saddam's regime among the anti-war crowd. So, alternatively, he could have been addressing that minute (and, heretofore silent) minority within the anti-war movement.

12:14 PM  
Blogger Bostonian Exile said...

Upon further reflection, you are probably right about his view of the "logic of the antiwar position." I'm not sure I embrace that position, but I'm not sure that he's completely off-base, either.

So, I'm back where I started...

12:45 PM  
Blogger scott said...

By this line of thinking, Slobodan Milosevic or even any of the Nazi's convicted and hanged at Nuremberg were illegitimate.

Let's look at Milosevic, he was arrested, sent out of his country to the Hague and is on trial. What authority does the International Court have to try him? Kevin explains the same thing.

Anyway, Saddam ceased being a legitimate ruler when he gassed the Kurds in Halabja. International law may disagree, but human morality states it clearly.

9:07 PM  
Blogger Eric said...

I'm in no way saying that people against the war in fact support Saddam Hussein; only that removing him flowed from the war they oppose, and if the war was illegitimate, then so was his removal by the forces which defeated him.

There are two issues, though: one is whether he can or should be tried, and the other is whether he was removed from office improperly. In theory, even without the war, he could have still been indicted and tried in absentia elsewhere.

(Please bear in mind that satirical comparisons are not always strictly logical ones.)

Thanks for the link, too!

11:00 PM  
Blogger Bostonian Exile said...


Respectfully, the examples you cite are inapposite to the question I posed, which was primarily about legitimacy derived from sovereignty. In the case of the Nuremburg trials, you would have to assume that the United States lacked an adequate justification to fight Nazi Germany. In both cases, you have a trial by an international tribunal, not by an arm of the newly established sovereign government of the ex-leaders' respective nations. I am not sure which additional point Kevin made that buttresses your opinion, but I thought I had answered his considered response pretty thoroughly.

Setting aside your appeal to "human morality," even if we agree that Saddam ceased to be the "legitimate" ruler when he gassed the Kurds, he did not lose sovereignty until he was toppled. My question is simply about whether the institution replacing him is rightfully able to wield power under these circumstances, subject to the assumptions noted in the body of the post.

But, hey. I, of course, have to assume a lot of things I don't believe in order to flesh out the argument. Don't shoot me; I'm just the Devil's advocate (and messenger).

11:10 PM  
Anonymous Libby said...

I think maybe you're all asking the wrong question. It doesn't matter what the US anti-war faction thinks, although I have to add that I don't know of a single person on the anti-war side who has come out in support of the man or his regime. That he is a "bad" man is evident but the world is full of bad men who rule countries and the "reasons" for singling him out were dubious at best.

That being said, I'm of the opinion that the trial is illegitimate in its present venue. It most assuredly should have been tried before the entity that Bush fears the most - an international criminal court.

The real question is what do the Iraqis think? While there may have been a different answer two years ago, judging from the rumors I've been seeing lately, there are growing numbers of Iraqis who want him back as president because although they were perhaps terrorized by his regime - at least they knew who to be afraid of and there was security in that knowledge.

In the present chaos that is the US occupation of Iraq, it's not so easy to tell friend from foe and death and destruction comes equally easily from both.

3:59 PM  

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