Trying Saddam Hussein
International Law, NGOs, and the Death Penalty
About This Event

Immediately following the announcement of Saddam Hussein's capture by the U.S. military, many nongovernmental organizations and international institutions decried the idea of a trial by Iraqis. More importantly, they opposed the possibility of the death penalty as punishment for his crimes. Does international law preclude an eventual Hussein execution? Is it possible that Saddam will be adopted as the poster child of the human rights/anti-capital punishment movement?

Please join NGOWatch, a project of AEI and the Federalist Society, for a panel discussion on international law, NGOs, and the death penalty. CSIS fellow Larry Rothenberg will present a new NGOWatch paper on "International Law, American Sovereignty, and the Death Penalty." A panel discussion will follow.

Agenda

8:45 a.m.

Registration

9:00
Introduction:

Danielle Pletka, AEI

Presenter:

Larry Rothenberg, Center for Strategic and International Studies

Panelists:

Hadley Arkes, Amherst College


Walter Berns, AEI


Tom Malinowski, Human Rights Watch

10:30

Adjournment

Event Summary

January 2004
Trying Saddam Hussein

Immediately following the announcement of Saddam Hussein's capture by the U.S. military, many nongovernmental organizations and international institutions decried the idea of a trial by Iraqis. More importantly, they opposed the possibility of the death penalty as punishment for his crimes. Does international law preclude an eventual Hussein execution? Is it possible that Saddam will be adopted as the poster child of the human rights/anti-capital punishment movement? On January 15, 2004, AEI hosted a panel to discuss the broader implications of the trial of Saddam Hussein.

Larry Rothenberg
Center for Strategic and International Studies

Saddam Hussein's capture was prelude to an even more difficult task: resolving the debate about the nature of his trial, the use of the death penalty in Iraq, and the question of the international community's involvement in Iraq war crimes tribunals. Saddam is guilty of all three crimes defined by international law (crimes against humanity, genocide, and war crimes). He is responsible for the death of at least three hundred thousand Iraqi people in addition to the hundreds of thousands of tortures that he authorized. He committed genocide in targeting the Kurds, the Shiites, and smaller minority groups on the basis of their ethnic affiliation. He used chemical weapons during his invasion of Iran and ordered the abuse of prisoners of war and civilians alike during his invasion of Kuwait.

Saddam's trial must be done correctly, not primarily to establish his guilt, but to provide catharsis for his victims and establish a historical record of the reality of his regime. Establishing domestic legitimacy is far more important than international legitimacy: it was the Iraqi people who suffered under Saddam's regime. The best option is to have a mostly domestic Iraqi tribunal with the involvement of experts from around the Muslim and Arab world. It is difficult to define a punishment for the murder of over three hundred thousand people, but the death penalty is surely appropriate in this case.

The debate surrounding Saddam's trial exposes the conflict between international law, national sovereignty, and democracy itself. Is it really up to the international community to decide Saddam's fate and the manner in which his trial should be conducted when the very same international community was so adamantly opposed to the war to begin with? It is highly ironic that they opposed the war on the basis of protecting national sovereignty but now wish to violate that sovereignty by usurping the right to try a dictator for his crimes. The unfortunate reality is that international law is a threat to democracy and democratic principles throughout the world.

Tom Malinowski
Washington Advocacy Director, Human Rights Watch

It is the responsibility of NGOs such as Human Rights Watch to advise, not command, the Iraqi people on how to proceed with Saddam's trial. It is imperative that this trial be done correctly. The highest standards of fairness, justice, and due process must be met in order to convince the Iraqi people that the rule of law is the new reality in their country.
It is, however, a misperception that the international community wants to take ownership of this trial. The case against Saddam, however, is extremely complex. The Iraqis do not have the expertise to handle this without outside help. There is also the question of whether or not the Iraqi judges, jurists, and prosecutors will have the necessary emotional distance from the trial. Also, Saddam's fate cannot be decided by the Iraqi Governing Council (IGC) alone: it is not an elected Iraqi government and therefore lacks legitimacy for many Iraqis.

Ultimately, it is up to the Iraqi people to decide and enforce the death penalty in Saddam's case. However, it may not be the right thing for Iraq right now. The international community, especially the United Kingdom, which was an important ally of the United States before and during the war, would not support the use of the death penalty. The outcome of this trial will also have a great impact on what kind of society Iraq is going to become. Perhaps a new Iraq should abandon the culture of death with which Saddam governed and establish a government that no longer claims for itself the right to kill its own people, even under the most extreme circumstances.

Walter Berns
AEI

The U.S. Constitution refers to the death penalty as legitimate in several places. Nothing in international law prevents Iraq from executing Saddam Hussein after his trial. The death penalty has both legitimacy and validity. Ultimately, exacting punishment is satisfying. Nothing can eliminate the pain caused by the death of Saddam's victims; however, exacting the correct punishment can satisfy Iraqi souls.  There is a good reason to use the death penalty in the case of Saddam Hussein.

Hadley Arkes
Political Science Professor at Amherst College

Retribution is the only defensible moral ground to justify capital punishment. The problem is that people invoke international law in order to proclaim that the death penalty is wrong to use in Saddam Hussein's case. International law only claims that capital punishment is wrong if there has been a consensus in the signing of certain conventions. There has not been in Saddam's case. Just because all of the members of the European Union may regard capital punishment as wrong does not mean that not all countries and all members of the UN do, as well. It is Iraq's right to decide whether or not to use the death penalty after the trial of Saddam Hussein. If Iraqis chose this option, they are not in violation of international law.

This summary was prepared by AEI intern Raakhi Agrawal.

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