In any event, our anxiety then to kill Saddam Hussein is in sharp contrast to our desire now to keep him alive until some judicial body (unspecified at the moment) escorts him -- where? To the gallows? To another jail?
A formal trial began in July and faced immediate difficulties. To begin with, there is the question of the detachment of Saddam Hussein from his large executive retinue. We have an estimated 5,500 Iraqis under lock and key and have not yet arrived at a judgment on how many of them are to be tried as criminals.
But we did train particular attention on 11 people in intimate association with Saddam Hussein, and right away the question arose whether they should all be tried together. This would not mean necessarily that they would be tried en banc. We could proceed as in Nuremberg, laying down the corporate case against the Saddam regime, and then enunciating, one by one, the specific liability of each individual defendant. In Nuremberg there were 22, and the sentences varied from hanging (11) to exoneration (3).
By what standards should Saddam be charged? At Nuremberg we articulated a law that did not exist, a law against wars of aggression. By some readings, we engaged therefore in ex post facto proceedings strictly forbidden by the U.S. Constitution. We were attempting, in 1945, to promulgate universal laws defining war crimes. We did this, and don't really need to make the point all over again, because there are plenty of local laws violated under Saddam Hussein. It's not legal, under Islamic practice or Iraqi law, to slaughter other Iraqis, let alone tens of thousands of them.
It is to be expected that Saddam's lawyers will raise every conceivable objection to the proceedings, among them the matter of the language used before the court. A scholar, writing for Vanguard Online, gave an example. Awa U. Kalu, Esq., wrote last month of an "avuncular" judge in a Nigerian court who advised the defendant that he could select the language in which the trial would take place. That's easy, the defendant said: He would like to be tried in Igbo. To the defendant's dismay, the presiding officer immediately began to speak in Igbo. Discouraged, the defendant switched to "flawless English," and then went on to another expedient, advising that what he had been charged with doing was in fact the work of Satan -- who of course was not subpoenable by the prosecutor.
The work of Saddam can vividly be described as the work of Satan. Meanwhile, the man responsible is in an undisclosed military compound in or near Baghdad; it is reported that he recently requested cigars. What hems in the prosecution is the thousands of Iraqis who have filed complaints against Saddam et al. on behalf of family members allegedly murdered by the regime. In order to examine these complaints thoroughly, one would need, among other things, to dig up cemeteries containing thousands of corpses, presumably in search of bullet holes or broken heads.
To undertake this in a country in which insurrectionaries, many of them surviving Baathist supporters of Saddam Hussein, strike out every day against the coalition powers, against the Iraqi government, against the police, is simply not feasible. The prosecution needs drastically to reduce the number of plaintiffs and the scope of their complaints in order to proceed against discrete crimes with available witnesses, who would presumably need to testify secretly, in shrouded courtrooms. But of course when such practices as those are resorted to, cries of victors' justice spring forth and ACLU-types are there to plead the invalidation of the trial.
It is piquant that the man we tried to kill with a surprise missile attack flaunts judicial extravagances to stay alive even as his dispossessed supporters continue to terrorize and to kill. If we can't arraign, prosecute, convict and hang Saddam Hussein, his supporters will be encouraged by western ambivalence, and a natural and commendable public thirst for symbolic vindication will continue unslaked.