Blogs > Liberty and Power > VAE VICTIS

Dec 27, 2003 1:43 am


[Cross-posted at In a Blog's Stead]

Who should try Saddam Hussein?

The Nuremberg trials have had both a positive and a negative legacy. The positive legacy is the affirmation of a higher moral standard to which government rulers are subject and in the name of which they can be called to accouint. But the negative legacy is the notion that the vanquished may legitimately be tried by the victor.

As John Locke famously pointed out, no one can be trusted to be a judge in his own case. Thus, apart from emergency situations when instant action must be taken, plaintiffs should submit their grievances to a third-party arbiter.

(Locke further takes this principle to support the establishment of a single monopoly arbiter. Of course it does no such thing. The inference from All disputes should be submitted to a third-party arbiter to There should be a third-party arbiter to whom all disputes are submitted is no more legitimate than would be the inference from Everyone likes at least one TV show to There's at least one TV show that everyone likes. In fact Locke's principle rules out a single monopoly arbiter – for a single monopoly arbiter would have to be a judge in its own case in any dispute to which it was a party.)

Locke's principle obviously rules out a trial by the U.S. – especially since the U.S. president has already called for Hussein's execution, thus nullifying any semblance of a fair trial. But it equally rules out the legitimacy of having the new Iraqi government try Hussein. (I say"Hussein" rather than"Saddam" because I am not on a first-name basis with the man; I’m not sure why everybody else seems to be.) The problem is not just that any Iraqi tribunal is likely to be a U.S. puppet (though that is certainly an obvious concern). Even if the U.S. had no influence on the Iraqi government at all, as long as Hussein is being accused, not of crimes against selected individuals, but of crimes against the Iraqi people as a whole, a government purportedly representing the entire Iraqi people cannot legitimately try him, since by doing so they would be acting as judges in their own case.

The only legitimate course of action would be for both the U.S. government and the Iraqi government to recuse themselves and hand Hussein over to a genuinely independent tribunal.

Don't hold your breath.

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