I have always felt somewhat uncomfortable about the Nuremberg war crimes trials. I don’t wish to minimise the degradation of the Nazi State or the atrocities committed in its name, but the whole enterprise seemed to me too much a case of “Victors’ Justice” or, as US Chief Justice Harlan Fiske Stone so eloquently put it, “a high-grade lynching party”.
I am not a lawyer, but the thread of international law that derives from Nuremburg, through the International Court at the Hague and the prosecution at Arusha of those responsible for mass murder in Rwanda seems to me somewhat suspect. In the absence of a general International Criminal Court, however, courts set up to try participants in specific conflicts may be the best we can do: rough justice to be sure, but justice none the less.
The case of Saddam Hussein, however, is different and should give us all pause for reflection and some shame. Unlike Milosovic, Saddam was not tried at an International Tribunal. He was tried under Iraqi jurisdiction, in a court that was the creature of the occupying forces (including Britain): a blatant case of Victors’ Justice.
To judge the extent to which this court is in the pocket of the occupying powers, consider the history of the judges appointed to preside over it. We can perhaps be exonerated from any responsibility for the murder of the first, Barawiz Mahomed Mahmoud al-Merani, but when the second, Rizgar Armin, resigned under western pressure, the Americans vetoed his deputy, Sayeed al-Hammashi, because he was a former member of the Ba’ath Party. The next, Abdullah al-Amiri, was found to be too sympathetic to Saddam and removed by the government in Baghdad. So at the sixth attempt we have found a judge, Rauf Abdel Rahman, willing and able to pronounce the death sentence on Saddam, which was always the only permissible outcome.
Legality has never been the strong point in our prosecution of the Iraq
war. Lacking the consensus for a specific United Nations resolution
authorising military action, we hid behind Resolution 1441’s threat of
“serious consequences”. The serious breaches of previous resolutions
referred to in 1441, including hoarding weapons of mass destruction and
harbouring al-Qu’aida terrorists, were unsubstantiated in the wake of
If the invasion and subsequent trial of Saddam were both the product of
a certain realpolitik then, as with Nuremburg, perhaps both served a
purpose. Just as, however, the invasion has failed to achieve the
objective of making the region more stable (or even more democratic),
so the death of Saddam will only exacerbate our increasingly fraught
occupation and be used against us by our enemies.
Once again, we have failed to understand the nature of tribal politics
in the region. We see Sunnis and Shi’ites as homogenous opposed groups
and assume, on the basis of “my friend’s enemy is my friend”, that a
setback for one will be welcomed by the other. Saddam survived and
prospered for so long because, albeit with terror and torture, he
maintained a balance of interests between competing groups in his
British-created, artificial country. Wars against Iran (1980-88) and
Kuwait (1990) provided a nationalist focus for his Ba’athist regime.
The current Shi’ite dominated government by comparison has neither the
consent of the Sunni population nor of the radical islamist Arab
shi’ites who receive support from their Persian shi’ite neighbours,
neither does it have the means to impose its order.
While none of these insurgents will mourn the death of Saddam, all will
use it to further their cause against Nouri al-Maliki’s government in
Baghdad and especially against the US and British occupation. As
Egypt’s President Hosni Mubarak graphically put it, Saddam’s execution
will “explode violence like waterfalls” and “transform Iraq into blood
pools and lead to a deepening of the sectarian and ethnic conflicts”.
One further group has cause to feel aggrieved at the botched trial of
Saddam Hussein: the Kurds. Saddam was tried and found guilty of the
murder of 143 Shi’ites at Dujail in 1982. The trial of Saddam for the
genocide of northern-Iraqi Kurds in 1988 during the al-Anfal campaign
has been interrupted by Saddam’s execution and the Kurds will feel
cheated of even Victors’ Justice.