Outside the Beltway

Legal Experts Question Saddam Trial

James Joyner · Thursday, October 20, 2005 · 3 comments

Law Experts Divided Over Legitimacy of Tribunal (LAT)

When Saddam Hussein declared Wednesday that the Iraqi war crimes tribunal had no right to put him on trial, he was not the first to raise questions about the panel’s legitimacy. Although some legal experts say the court is properly prosecuting the former Iraqi president, others say that the lack of international authorization puts its legitimacy in doubt.

Diane M. Amann, a professor of international law at UC Davis, said questions had arisen because the United Nations had not sanctioned the court, as it had the special tribunals created to try alleged war criminals in the former Yugoslavia, Rwanda and Sierra Leone. “There are serious questions about the authority under which this court has operated and is now operating, in part because of the novelty and uncertainty of the regime that is ruling Iraq today,” she said.

David M. Crane, who served as chief prosecutor for the special war crimes court in Sierra Leone, said the Iraqi tribunal’s legitimacy was “tenuous at best” because it was “set up outside international norms.” He said he feared it would be forever tainted by the image it was “a kangaroo court set up by and for the U.S.”

Other legal experts disagree. The Geneva Convention “permits the occupying authority to change judicial institutions to secure the rights of the people,” said Mike Newton of Vanderbilt Law School in Nashville. “The U.S. could have created this tribunal under that authority alone.”

Moreover, even though the original statute creating the court was enacted under the Coalition Provisional Authority that governed Iraq after the 2003 U.S.-led invasion, the “democratically elected sovereign” Iraqi legislature amended the law in August, thereby making the court legitimate, said Michael P. Scharf, professor of law at Case Western Reserve Law School in Cleveland.

It is absurd to suggest that the United Nations has more right to try Saddam Hussein for attrocities against Iraqis than the people of Iraq.

And this nails it:

The question of the tribunal’s legitimacy is complex and is likely to evolve over time, said Linda Malone, a law professor at the College of William and Mary in Virginia. “It seems to me the model we now see is a repressive government committing atrocities against its own population, destroying the rule of law in that country, and when that regime is deposed either internally or externally, the question is how to punish the perpetrators,” Malone said.

“There are serious questions about the legitimacy of the tribunal,” in part because it is a hybrid, using some Iraqi law and some international law, Malone said.

“I came to the unavoidable conclusion that Saddam should be tried. The question was how. The United Nations was not going to provide any help to a tribunal that had the death penalty,” something the Iraqis insisted on, Malone said.

Malone said she was not surprised that Hussein challenged the legitimacy of the tribunal. On the other hand, she said, “it is ironic to anyone watching this trial that Hussein, who is such an icon of injustice, is now trying to transform himself into the poster boy for fair trials and due process.”

Indeed.

This isn’t victor’s justice. Saddam unquestionably violated the most basic precepts of human law. Even his regime prosecuted murderers.