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Saddam trial: A weak case for war

Western powers look to lawyers when they run out of political arguments.

David Chandler

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The British government is accused of holding back the attempts of the new Iraqi regime to bring Saddam Hussein to justice (1). The UK Foreign Office is refusing to hand over the huge file of material from years of spying by British intelligence agencies – because Saddam faces the death penalty, and the death penalty is banned under the European Convention on Human Rights. Apparently, the British government was willing to fight a war to remove a dangerous tyrant – to ‘put him in prison rather than keep him in power’, in Tony Blair’s mantra – but is unwilling to hand over evidence to the Iraqi court tasked with prosecuting him under the law.

Not surprisingly, the Daily Mail and some Conservative MPs are arguing that the government should apply for a special opt-out from the European Convention. They assert that it is an insult to the British troops in Iraq, and that the government is putting the European Convention before achieving the aims of the war. In fact, the UK government is being more than supportive of the Iraqi tribunal. It may be holding back evidence in a bid to pressurise the tribunal to drop the death penalty. But the interesting question is why the UK government is so keen to influence the trial – so keen, indeed, that it is willing to appear to be helping Saddam.

Rather than the Foreign Office being in awe of the European Convention, it seems that the pressing concern is that the trial of Saddam attains a high level of international legitimacy. This would explain why, at the same time as pressuring the Iraqi government over the death penalty, the Department for International Development (DFID) is spending £2million on flying hundreds of Iraqi judges and lawyers to London for training to help ensure that they give the trial the semblance of legal righteousness.

The prosecution of Saddam is being used as the fallback option for legitimising the Iraqi war, where political arguments have failed. Without the discovery of weapons of mass destruction or links with al-Qaida, bringing Saddam to justice has assumed a central importance in the coalition’s ever-changing justification for the Iraq war. The attempt to legitimise the intervention is moving even further from the context in which it took place. The charges to be brought against Saddam will include responsibility for the deaths of political rivals, the Anfal campaign against the Kurdish population of the late 1980s, including a chemical weapons attack on the Kurdish town of Halabja in March 1988, the invasion of Kuwait in 1990, and the repression of the Shiite rebellion in southern Iraq in 1991. These charges bear little relation to those that were used to justify the US-led invasion in 2003.

In many ways the Saddam trial repeats the problems of the other ‘trial of the century’, that of Serbian leader Slobodan Milosevic, staged by the International Criminal Tribunal for former Yugoslavia (ICTY) at The Hague. Milosevic’s trial has also been used to legitimise a war that achieved questionable international legitimacy on its own terms.

Like the 2003 Iraq war, the 1999 Kosovo war was fought without the political authority of the United Nations Security Council. In fact, Milosevic’s indictment was issued during the war – with later indictments added with regard to his responsibility for conflict in Croatia and Bosnia, to retrospectively strengthen the legal case over Kosovo. To play this role, international law has had to be ‘improved’ beyond the charges listed in the ICTY statute. The prosecution has inventively developed the catch-all charge of ‘joint criminal enterprise’, which ensures that selected political leaders can be held responsible for the crimes committed by others without the ‘smoking gun’ of traditional forms of evidence to establish individual responsibility (2).

The trials of Saddam and Milosevic show how legal procedures are central to international politics today. It now seems that there can be no action by major Western states in the international sphere without the reliance on legal opinion as a central justifying factor. From the initiation of military action, to the specific tactics employed in the air or on the ground, to the treatment of prisoners, to the post-war settlement, it seems that lawyers wield more influence than leading politicians and international statesmen. We saw this recently in the UK, with endless debates about the legal evidence that the attorney general gave to Blair before the Iraq war (see Don’t mention the war, by Brendan O’Neill). The question of the rights and wrongs of the war was transformed into a question of the attorney general’s legal opinion.

For many commentators, the prominence of lawyers and the development of new international legal institutions (from the ad hoc war crimes tribunals for Rwanda and former Yugoslavia to the establishment of the International Criminal Court at The Hague), highlight a new consensual international order after the divisions of the Cold War. Some observers even suggest that we are witnessing the ‘domestication’ of the international sphere, where power relations are being overcome through more even-handed laws. A glance at the concerns major powers have with the Saddam and Milosevic trials indicates that the developments in international law reflect uncertainty rather than consensus. It is the inability of Western governments to win an international consensus, or to establish a strong political legitimacy for their actions domestically, which has meant that lawyers have become increasingly influential.

The rise of international law goes along with the declining legal importance of international political institutions, such as the United Nations. It is the problems of traditional political mechanisms of developing and legitimising international practices, which appear to be leading to the growing political role for law.

David Chandler is senior lecturer in international relations at the Centre for the Study of Democracy, University of Westminster. His most recent book is Constructing Global Civil Society: Morality and Power in International Relations (buy this book from Amazon(UK)).

(1) Saddam in prosecution shambles, Daily Mail, 5th July 2005

(2) Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, Allison Marston Danner and Jenny S. Martinez, Vanderbilt Public Law Research Paper No. 04-09; Stanford Public Law Working Paper No. 87, March 2004

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