Thursday, March 23, 2006

Can Saddam be Tried

Commentary by Martin Kelly
May 24, 2004

The legitimacy of a government is an entirely separate legal issue from the criminal actions of its members.

Witness the Sunday Telegraph’s May 16 report that Saddam Hussein is prone to telling his captors that he is still the President of Iraq. This is not such a bizarre delusion as it might first seem.

Claims to legitimacy vary. At his trial in Westminster Hall, Charles I claimed the divine right of kings as an absolute defence to all charges. If, as King, he was ordained by God to rule, what other power could put him on trial?

Of course, no one believes in the divine right of kings any more. We have the next best thing, international law, instead.

The Neoconservative War was launched to enforce UN Security Council Resolution 1441. Unlike many of the vexatious resolutions that have been passed against Israel, 1441 was mandatory, demanding that Iraq disarm. The stupid failure of the Iraqis to prove that they had disarmed, and their now forgotten obstruction and harassment of Blix and his pantomime troupe, were the justifications used by the USA and UK for launching the war that was apparently necessary to enforce 1441. 1441 had been passed unanimously, was mandatory and was enforceable. So far, so good, so legal.

But there was no mandate for regime change. Therefore by what legal authority was the regime changed? Has the legitimate government actually changed at all?

Although Saddam’s regime was a disgusting one, it was recognised as both the de facto and de jure government of Iraq through the prior acceptance of its ambassadors. There was no effective Iraqi Government in Exile of the kind that claimed to be the governments of France and Poland during World War Two, for the UK and USA to recognise. Although diplomatic relations did not exist between Iraq and the USA and the UK at the time the Neocon War started, the closing of diplomatic channels was simply a matter of British and American policy. It did not affect the legitimacy of the Saddam government.

Of course, there had been a previous war that had not ended in outright Iraqi defeat but in ceasefire. The reason for this ceasefire was that George H.W. Bush had staked everything on observing what he was advised was the correct position in international law, that the terms of the resolution authorising the ejection of Iraq from Kuwait prevented Norman Schwarzkopf rolling on to Baghdad. As a result, in the run up to the Neocon War George W. Bush was unable to ask for a revocation of the 1991 ceasefire as at no stage after Desert Storm had Iraq posed a serious threat to the security of Kuwait.

Therefore, the only authority that the coalition had for being in Iraq was to enforce 1441. Although regime change in Iraq had been American policy since 1998, it was not a specific feature of 1441. Accordingly, the legality of the continuing occupation hangs by a thread, whether 1441 impliedly authorises regime change as a necessary step of Iraqi disarmament.

If the overthrow of the Saddam regime was legal because it was necessary to satisfy the terms of a mandatory UN Security Council Resolution, the neocon UN-sceptics have done more to empower the UN for good or ill than Kofi Annan could achieve in his wildest dreams. By doing so, they have vested in the UN the power to make resolutions that can then be used by member states to overthrow the governments of other states thus throwing the Constitution of the United States of America into the trash. Their actions have given the UN the power not to just to proclaim upon the affairs of member states, but to allow its members to take actions against other members which may now be perfectly legal, thus turning the UN into the world government its advocates would love it to be. To hell with sovereignty, it’s now meaningless, thanks to Project for the New American Century. Consider this – if such a principle existed, if UNSC had passed a resolution demanding action against the Nixon Administration over Watergate in 1974, it would have been perfectly legitimate for Canada to invade to enforce it.

Governments can of course be overthrown from within and their successors recognised as legitimate governments. There is no more disgusting, barbaric, racist and corrupt government in the world right now than that of Robert Mugabe Black Hitler, which will turn Zimbabwe into a mass grave before he is dead. However, by international standards his government is legitimate. Saddam was overthrown in an invasion not governed by the normal laws of war. The invasion had one cause that was perfectly legal, but its effect can properly, according to this interpretation, be seen to be outside the law. If the law matters at all to a neoconservative.

In order for a trial of Saddam to take place, it will be necessary for prosecutors to establish that his entire government had to be overthrown in order to properly implement 1441. This is not a case that calls for a Nuremberg Law, when the interests of justice were clearly served by the agreement of the Allies that such crimes as ‘crimes against humanity’ and ‘crimes against peace’ did exist, and that their prosecution was valid because of the enormity of the Axis crimes. It is a narrow but simple point on which, in theory, the entire case may fall.

It won’t fall, of course. As Robert Bolt put it, the canvass and the rigging of the law will be stretched to ensure Saddam meets his end courtesy of the hangman, but it should give some food for thought to the bright sparks at the JAG Corps who gave the A-OK to Abu Ghraib. After all, if you’ve bet the farm on a case that says the whole government had to go, how come you’ve re-hired some of its worst servants? Doesn’t that render the cause functus?

In case anyone thinks that neoconservatives always get away with overturning the governments of their enemies, think back to Charles I. Oliver Cromwell, Thomas Fairfax and the rest of them were neoconservatives as surely as Michael Ledeen and Paul Wolfowitz. Just over 10 years after Charles mounted the scaffold in Whitehall on January 30 1649 and the end of the monarchy was proclaimed, the monarchy was back with a vengeance.