Saddam And War Crimes Trials

Over in NRO’s Corner blog, Mario Loyola has some thoughts on Saddam and war crimes trials in general:

The scheme of war crimes trials was largely invented by the Americans after World War II, and largely for the purpose of making sure that the crimes of the Nazis were publicized and memorialized to the fullest. The concern was not the due process rights of a band of criminals who had committed their crimes openly and flagrantly for all the world to see. Nobody could doubt their identity or guilt.

Some have questioned why Saddam was executed on the basis of less than two hundred murders when he was responsible for hundreds of thousands losing their lives. The answer is not just that the particular crime in question was so easily traceable through documentary evidence to Saddam’s personal agency, but also that it is important for people to see that even a crime this “small” justifies this punishment.

None of this has to do with the due process rights normally presumed for an individual criminal defendant in a state proceeding where there is a vital concern to protect individual rights from the power of the state. War criminals use the power of the state to commit their crimes. By abusing the powers of state, they opt out of the protections of state. The Allies would have been fully within their rights under customary international law to put the senior Nazi leaders in front of firing squads without any judicial process at all. Indeed, among the Allies, many senior leaders worried about the restraining precedent that would be set by the Nuremberg trials, which arguably went far beyond the sensible requirements of humanist and ethical restraint. The Nuremberg trials were show-trials in the best sense. Their purpose was not justice, but publicity, as Eisenhower appreciated.

The Iraqis who conducted the trial and execution of Saddam behaved with more restraint than I would have been inclined to show him. He was lucky that he was not tortured to death and buried in an unmarked grave, as many Iraqis would have liked to see. He was given more justice than a summary execution not to protect his dignity but to protect our own, and so that all could see real justice being served for real crimes.

What is most shocking to me about war critics who dismiss his execution is the ease with which they wave away the hundreds and thousands of hours of real torture



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