Saddam's trial

Posted: Dec 15, 2003 12:00 AM

WASHINGTON -- The tyrant's capture has triggered a predictable chorus from those who have consistently subordinated the interests of Iraq, and other things, to their agenda for aggrandizing international institutions. They say an international tribunal should have a role -- perhaps the role -- in the trial of Saddam Hussein. So it is timely to recall the Nuremberg anomaly.

The charges against leading Nazis in the 1945-46 war crimes tribunal included waging aggressive war. The judges included -- necessarily but grotesquely -- a representative of the Soviet Union, which was Hitler's ally in September 1939 when he invaded Poland, and which participated in Poland's dismemberment. It would be unseemly for Saddam to be tried in front of judges from, say, France, Germany and Russia, which tried mightily to prevent his removal.

Opposition to ``internationalizing'' Saddam's prosecution involves different, larger and better reasons than the U.S. decision -- which seems like a tantrum tarted up as foreign policy -- to deny Iraq-reconstruction contracts to companies from nations that opposed the war. A trial in Iraq, by Iraqis, can serve several important goals.

It might have been easier if Saddam had died resisting capture -- although that would have allowed the mythmakers, who are legion in that region, to envelop his memory with a nimbus of martyrdom. The fact that he was captured with a pistol he would not use even on himself makes it unlikely that he can seem bravely defiant in his trial.

An Iraqi trial can build the authoritative record of Saddam's crimes. It also can give the new regime dignity.

The long, dispiriting history of Holocaust denial -- a thriving lie in the Middle East, and alive elsewhere -- would be a far worse plague had not the Nuremberg tribunal painstakingly rubbed the noses of various nations in what they did, or did too little to prevent. An unsparing presentation of Saddam's crimes would also usefully complicate the moral exhibitionism of some of America's critics.

In addition, an Iraqi tribunal would be a dramatic opportunity to demonstrate progress toward something even more crucial than the reliable production of electricity -- competence at governing. It is axiomatic that hard cases make bad law, but this is not a hard case. There is no doubt that the person to be tried committed criminal enormities.

The attempts of ``internationalists'' to hijack Saddam's prosecution are partly for the purpose of derogating the importance and legitimacy of nation-states generally. But Iraqi nationhood -- currently tenuous as a political and psychological fact -- can be affirmed by entrusting it with the trial. By serving Iraq's national memory, the trial can be a nation-building event.

The Nuremberg tribunal, although necessary as a means of civilizing vengeance, raised troubling questions not only because of its Stalinist component but because an ex post facto taint attached to the charge of ``crimes against humanity.'' But Iraqis, not the abstraction ``humanity,'' were Saddam's victims, and should be his prosecutors.

Israel's 1961 prosecution of Adolf Eichmann, although an admirable demonstration of implacable yet measured justice, did, to some critics, carry the blemish of the kidnapping from Argentina that made it possible. But there was no nonsense about Eichmann being tried by ``the international community'' for crimes against ``humanity.'' He was tried by the nation summoned into existence by crimes in which he participated. Iraq is similarly the discrete locus of the great grievance against Saddam.

Ripples from Saddam's capture will -- and should -- radiate through America's domestic politics. The question of Saddam's trial, like the war itself, raises profound issues that divide America's parties. They are issues about the rights of nations, and the importance of defending them against the self-aggrandizement of international institutions of questionable competence, legitimacy and accountability.

Furthermore, no Democrat is running for president as a little ray of

sunshine, but John Kerry used the occasion Sunday morning to tell Fox News that although the capture was good, the administration still has not done enough about AIDS. Can someone that tone-deaf govern?

Howard Dean was more gracious than he was when Saddam fled Baghdad. Then Dean said ``I suppose'' that Saddam's removal was a good thing. Saddam's capture was the third element in last week's trifecta for George W. Bush, coming after Al Gore strengthened the candidacy of Bush's preferred opponent, and the Dow passed 10,000. But perhaps Sunday's euphoria among the vast majority of next November's voters will cause Democrats to pause on their double-time march toward nominating the one serious candidate of whom it can be indisputably said that, were he president, Saddam would still be a president.