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If Saddam Rears His Head, Execute Him By: George Jonas
The National Post | Tuesday, April 22, 2003

In the unlikely event that Saddam Hussein is alive and captured, many people will call for him to be tried by a tribunal, preferably the International Criminal Court (ICC). I think it would be a mistake. My suggestions, in descending order of preference, are:

1) Shoot him out of hand; 2) Let him go, and leave his punishment to God; 3) Try him before a coalition tribunal; 4) Let the ICC assume jurisdiction over him.

It has been said that Churchill recommended shooting senior Nazis out of hand after the war. If so, I do not think Sir Winston's suggestion reflected his contempt for the law. On the contrary, it underlined his high regard for it. He did not want to risk justice being tainted by a flawed process.

Fastidious people might balk at shooting a captive. It could be viewed as a breach of international law, putting the coalition on the same level as Saddam. Hence the second choice: let Saddam go and leave his punishment to God. Some may consider this unduly lenient, but I think God has reserved vengeance to Himself for a reason. He is terrible out of His holy places, as the Psalmist has it, and tends to be quite reliable in matters of retribution.

A coalition tribunal is third on my list, because I do not think we can try Saddam fairly and, if you cannot try people fairly, it is better not to try them. Using courts of law to punish defeated enemies exposes the process to contamination, since enemies cannot be tried without removing the blindfold from the eyes of justice. The blindfold was not a fashion accessory for the Roman goddess Justitia: She wore it to denote her impartiality. To this day, a juror swears to be "indifferent" between the monarch and the accused.

It would be difficult to be indifferent between Her Majesty and Saddam Hussein. In our tradition, courts presume the innocence of the prisoner in the dock. In contrast, proponents of war-crimes tribunals not only assume the guilt of the people they want to try: They also assume their outright monstrosity and use this assumption to advocate their prosecution.

Some years ago, former solicitor-general Warren Allmand, noting my reservations about the ICC, put a rhetorical question to me in this newspaper.

"Does Mr. Jonas believe," he asked, "that the perpetrators of genocide, war crimes and crimes against humanity should be immune from prosecution?"

Well, no, I replied; I only believe that people should be immune from being tried in politicized kangaroo courts, whatever they're accused of. Proceedings in courts that know the answers to their questions before they convene are called show trials.

This is why the ICC would be my last choice. The ICC, which became operational last summer, likes to trace its origins to the war crimes tribunals of Nuremberg and Tokyo. There are two problems with this. First, the antecedents themselves are badly flawed. No group deserved to be punished for its crimes more than the Nazis, but Nuremberg was still a victor's court. It also became something of a farce. With Vishinsky -- Stalin's former prosecutor during the "purge trials" of 1936-38 -- supervising a Soviet team of judges and prosecutors, Nuremberg could safely be described as Al Capone sitting in judgment over Jack the Ripper. In one instance, the Nuremberg court actually convicted the accused of a crime committed by the prosecutor -- the massacre of 15,000 Polish officers in the Katyn forest.

But the ICC's claim of descent from even such flawed ancestry has been less than legitimate. As Margaret Thatcher pointed out in her 2002 book Statecraft: "The Nuremberg trials were attacked at the time as 'victor's justice.' And this is precisely what they were -- and were intended to be. Far from being staged by uninvolved outsiders, they were organized by the powers which together had defeated and occupied Germany. It was these occupying powers which now exercised sovereignty there.

"Why is all this so important?" Lady Thatcher asked. "Because those now advocating ever greater intrusions of international justice into the affairs of sovereign nations repeatedly claim that in some sense they are building upon and fulfilling the aims of Nuremberg. And this is quite wrong."

Unlike Nuremberg, the ICC cannot even lay claim to being "victor's justice," in the sense of being a court set up by victorious powers exercising territorial jurisdiction after assuming sovereignty over an occupied region. Nor is the ICC -- unlike the ad hoc courts of the UN -- subject to the Security Council. The court is designed to be a law unto itself. The judges and prosecutors -- a body of "uninvolved outsiders," in Lady Thatcher's words -- are unelected officials arrogating jurisdiction to themselves across all lines of national sovereignty.

They are not just any unelected outsiders, however. The ICC's bandwagon is pushed by an informal coalition of interest groups, with a variety of agendas. Losing parties in a conflict, for instance, envision using the court to punish the winners (an Argentine group in 2000 attempted to demand the extradition of Lady Thatcher for her role in the sinking of the Belgrano). But for a technicality, Serb groups could attempt to use the ICC to prosecute NATO leaders for having ordered the bombing of Yugoslavia's infrastructure during the Kosovo conflict. The technicality that prevents this is an exclusion of offences before 2002, but such prosecutions would be available in current conflicts, such as Iraq. In short, the ICC holds the potential of adding the insult of "loser's justice" to the injury of "winner's justice."

Needless to say, neither winner's justice nor loser's justice has anything to do with justice. The safeguards ostensibly set up to eliminate frivolous prosecutions achieve something entirely different: They ensure the selective prosecution of identical conduct.

Even if Saddam were technically eligible to be tried by the ICC (he isn't, for Iraq never signed the treaty), legitimizing such a tribunal would be a grave error. Saddam is a mass murderer; his guilt is beyond any reasonable doubt. Given his penchant for doubles, the only thing that needs to be established is his identity. Then take him to the barrack square, remove Justitia's blindfold -- and offer it to him.

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