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The Good, The Bad & the Immune from Prosecution
Saturday, 11 November 2006 15:13
by Paul William Roberts

Savages we call them because their manners differ from ours.

Benjamin Franklin

Just returned from a trip to China, where he was soliciting assistance for his country’s nuclear energy program, Egyptian dictator Hosni Mubarak announced on November 9 that the execution of Saddam Hussein would cause further turmoil in Iraq and increase anti-American hostilities across the Arab world. With the question of his succession the number one topic of discussion among Egypt’s political elites these days, Mubarak is clearly trying to make himself look less like a US quisling in order to aid the imminent grab for power of his son, who was in Washington a few weeks ago for ‘off the record’ talks with members of the Bush administration. But the prospect of Saddam’s hanging must also make Mubarak’s silk necktie seem uncomfortably tight. After all, one false move – or a change in Washington’s ideas about Egypt’s future -- and he could well find himself vilified by US-controlled media paving the way for regime change and a show trial in Cairo.

It is a pity that Mubarak did not cite the real reasons we should all object to the trial and death sentence of Saddam Hussein --- but this would have entailed far too much criticism of his American masters. As recipient of Washington’s third-largest foreign aid hand out, Egypt is not expected even to nibble at the hand feeding it, let alone bite (Iraq, at $20 billion, gets the most, followed by Israel at some $2 billion. Egypt is close behind). And the circumstances of Saddam’s trial expose an aspect of US foreign policy no one in the West seems willing to discuss, since it reveals such transparent hypocrisy with regard to the same much-vaunted rule of law that is so frequently brandished as an ultimate authority in the pursuit of Western goals.

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The legitimacy of America’s role as Globo-Cop --- precursor to Glo-Boss --- is intimately connected with its ability to transform its enemies into criminals, in much the same way as any police force justifies questionable tactics by highlighting the wickedness of its targets. While no one denies Saddam ruthlessly suppressed all dissent and showed his enemies no mercy whatsoever, these are not the issues at stake. They are simply questions of morality not law, yet they are bandied about by the US as if they carried legal weight in order to deflect attention from the real legal issues.

No one seriously suggests the show trials of Charles I or Louis XVI had any legal merit, so it is not until the twentieth century that the idea of holding criminal trials for deposed leaders emerged as a viable means of dealing with those who lost wars. Prior to WW I, wars were regarded much like duels, with the loser either dead or accorded some kind of dignity in defeat. Not since the Roman Empire had any power sought to showcase its victories --- and the fate of those who opposed its hegemony – by humiliating the vanquished, who, like the Syrian Queen Xenobia, were often dragged through the streets of Rome in chains. Similar motives lay behind acts like sowing the fields of Carthage with salt --- the ancient world’s answer to depleted uranium.

Having been elected because he’d kept America out of Europe’s bloody conflict, the pious racist Woodrow Wilson plunged his country into WW I a year before it ended, “to make the world safe for democracy.” He used a similar pretence to justify his own military adventures in Cuba, Haiti, Nicaragua, Mexico and Panama. Ablaze with messianic fervor, Wilson, whose preferred mode of communication was the sermon, presented America’s role in the war as that of savior and herald of things to come. By establishing the League of Nations and prosecuting the German Kaiser and other leaders in a criminal court of law, the New World was leading the old one out from its bondage in the realm of interstate feuding into a promised land of global government. It is never clear in Wilson’s writings whether he means by ‘America’ a religion or a country, thus the “salvation of the world” depended upon ratification of the Treaty of Versailles --- or so he told the US Senate.

Less gullible than it would become and still able to think for itself, the Senate voted against saving the world. Authorities in Holland, where the Kaiser had fled into exile, also refused to extradite Germany’s deposed leader, so that was that. There were a few trials held in Germany, but the defendants generally escaped with light sentences. Yet clearly the idea of holding such trials for political enemies struck a match in other messianic leaders. Both Hitler and Stalin fantasized about staging them for each other’s regimes for crimes committed during WW II, thus when the opportunity arose for Soviet Russia to put Nazi leaders on trial, Moscow was quick to suggest it. Indeed, the chief Stalinist prosecutor at the Nuremberg tribunal was Andrei Vishinsky, who had been one of the main figures behind the Moscow show trials, and it was only because the Americans held most of the more important Nazi leaders that they were able to wrest control of Nuremberg away from the Soviets.

We have grown used to overlooking the legal shortcomings of Nuremberg, and to ignoring entirely the travesty of the Tokyo trials, yet we perhaps ought to question why it is we so blithely dismiss these issues. While it is true that few doubt the Nazis executed at Nuremberg got what was coming to them, such moral judgments are alien to the discipline of law itself, which entails strict observation of principles like due process and the neutrality regarding verdicts. In recent years, these key elements of due process have become entirely cloaked by moralism, thus making the nature of legal shortcomings at contemporary political trials increasing dire.

In a dissenting opinion over 1200 pages long, the Indian jurist Radhabinod Pal denied the legitimacy of the International Military Tribunal for the Far East, held in Tokyo after WW II. While he never expressed doubt that the Japanese defendants committed war crimes, he denied the fairness of their trial, stating that if the Japanese should stand trial for such crimes then so should the Allies, and also that it is a matter of fact only a lost war is an international crime. How surprising is it to find that US authorities in Japan at the time prohibited publication of Pal’s opinion there?

The fundamental impossibility of respecting the principles of justice while submitting one regime to the criminal jurisdiction of another is something that has been recognized for hundreds of years, so there seems little point in singling out the glaring abuses in Saddam’s trial, like the fact that four out of five judges were either killed or replaced, or that half the defense lawyers were murdered. That Saddam was not allowed to comment during the trial on such things as his relationship with Donald Rumsfeld, or the sales to Iraq by Britain, the US, and others of poison gas and the chemicals or other components for weapons of mass destruction, seems similarly beside the point.

Which, specifically, is that the special tribunal set up to try Saddam and other Ba’athists is blatantly and demonstrably illegal.

Called ‘the Iraqi Special Tribunal’ in the order creating it, signed by US viceroy Paul Bremer in December 2003, the Iraqi High Criminal Court, as it is now known, violates the key legal principle of ‘nullum crimen sine lege’, which states that people may only be tried by courts established by law, and may be prosecuted only under the terms of pre-existing laws. It is expressed in the International Covenant of Civil and Political Rights, as well as in numerous other declarations of fundamental legal and human rights tenets. It is no exaggeration to say that nullum crimen sine lege is a major part of the foundation of the rule of law itself.

The Saddam tribunal is, furthermore, not only in violation of this quintessential legal principle by its very existence, but also in the terms of its charter, where Article I states that the court has jurisdiction to try persons accused of “certain crimes allegedly committed between July 17, 1968, and May 1, 2003”. The dates are those during which the Ba’ath Party held power in Iraq, of course, and the ‘certain crimes’ the court is permitted to deal with are exclusively those which can only be committed by state officials –  in other words ‘state crimes’, like war crimes. Bremer might as well have told Saddam: Here’s a court with your name on it. It was patently customized for the Ba’ath’s leadership.

Is there a problem with this?

Only inasmuch as the tailoring of legislation to put individuals or groups of individuals on trial has been unambiguously declared illegal in all of the world’s civilized nations for several centuries now...

Article I, Section 9 of the 1787 US Constitution, for example, makes it clear that such special courts, Bills of Attainder and ex post facto legislation are illegal. It is not just every accepted canon of due process that views it this way either. According to the Coalition Provisional Authority’s own ‘Law of Administration of Iraq for the Transitional Period’, which was promulgated on March 8, 2004, and comprised the ‘constitution’ under which Iraq was governed until the nation formally regained its sovereignty in 2005, Article 15 stipulates that “Special or exceptional courts may not be established.”

The fact that one was, however, pales when this implicit violation is compared with the gross violation of principles of international law expressed in the Fourth Geneva Convention governing rights of occupying forces, where it is explicitly declared illegal to change the laws of occupied countries – something the CPA did the moment it seized control of Baghdad in 2003.

The phrasing to the charter of the court is not the only serious violation of the rule of law.  In Article 14 of the charter an old Iraqi law from 1958 was recycled to specify that, among other crimes, the threat or use of force “against an Arab country” was within the court’s jurisdiction. Why wouldn’t attacks on any other countries do? The intention, I suggest, is transparently clear: Saddam could be prosecuted for invading Kuwait in 1990, yet not for waging the earlier long and bloody war against Iran. With its million dead and flagrant use of chemical weapons – some of them supplied by Washington – this latter, decade-long conflict was waged with US approval and support, not to mention direct consultation with America’s special envoy and war industries salesman to the region at that time, Donald Rumsfeld. For those who still don’t get it: Iran is not “an Arab country”. And the Rumster had no intention of being called in as a witness.

For those still in doubt that victor’s injustice is all that has ruled in Baghdad for the past three years, try taking a look at the Coalition Provisional Authority’s Order No. 17, issued on June 27, 2004. It states quite clearly that the occupying forces are immune from all prosecution by Iraqi courts.

Just imagine it’s your country…

While we may not care what happens to Saddam, we ought to care what happens to the principles of international law before they are being violated in our own country – which is typically when the sheep begin bleating. Although America may not recognize the World Court – its partner in crime, Britain, does -- and although Donald Rumsfeld may have opined that the Geneva Protocols were out of date, there are sufficient violations of international laws and treaties to which America has been party to warrant a war crimes trial for all the leading members of George W. Bush’s catastrophic administration, as well as Paul Wolfowitz and several others. While such a trial would not expiate the sins of US foreign policy in general, it would go a long way towards demonstrating genuine contrition and a desire to change. Those Americans who imagine the world is impressed that they voted Democrat in the mid-term elections have no idea how angry most of us out here actually are.

Here’s another take on it, too: herd in the Democrats so that by the time the big election comes around, and things are even worse in Iraq, Average America can be convinced it’s all their fault and only a Republican president with a Republican majority in Congress will be able to fix things. Personally, I don’t think a change of style will affect the substance much at all. According to the historical record, it never has yet.

The illegal we do immediately. The unconstitutional takes a little longer.

Henry Kissinger


In a related article by John Pilger.


Now let's charge Saddam's accomplices


In a show trial whose theatrical climax was clearly timed to promote George W Bush in the American midterm elections, Saddam Hussein was convicted and sentenced to hang. Drivel about "end of an era" and "a new start for Iraq" was promoted by the usual false moral accountants, who uttered not a word about bringing the tyrant's accomplices to justice. Why are these accomplices not being charged with aiding and abetting crimes against humanity?

Why isn't George Bush Snr being charged? In 1992, a congressional inquiry found that Bush as president had ordered a cover-up to conceal his secret support for Saddam and the illegal arms shipments being sent to Iraq via third countries. Missile technology was shipped to South Africa and Chile, then "on sold" to Iraq, while US Commerce Department records were falsified. Congressman Henry Gonzalez, chairman of the House of Representatives Banking Com mittee, said: "[We found that] Bush and his advisers financed, equipped and succoured the monster . . ."

Why isn't Douglas Hurd being charged? In 1981, as Foreign Office minister, Hurd travelled to Baghdad to sell Saddam a British Aerospace missile system and to "celebrate" the anniversary of Saddam's blood-soaked ascent to power. Why isn't his former cabinet colleague, Tony Newton, being charged? As Thatcher's trade secretary, Newton, within a month of Saddam gassing 5,000 Kurds at Halabja (news of which the Foreign Office tried to suppress), offered the mass murderer £340m in export credits.

Why isn't Donald Rumsfeld being charged? In December 1983, Rumsfeld was in Baghdad to signal America's approval of Iraq's aggression against Iran. Rumsfeld was back in Baghdad on 24 March 1984, the day that the United Nations reported that Iraq had used mustard gas laced with a nerve agent against Iranian soldiers. Rumsfeld said nothing. A subsequent Senate report documented the transfer of the ingredients of biological weapons from a company in Maryland, licensed by the Commerce Department and approved by the State Department.

Why isn't Madeleine Albright being charged? As President Clinton's secretary of state, Albright enforced an unrelenting embargo on Iraq which caused half a million "excess deaths" of children under the age of five. When asked on television if the children's deaths were a price worth paying, she replied: "We think the price is worth it."

Why isn't Peter Hain being charged? In 2001, as Foreign Office minister, Hain described as "gratuitous" the suggestion that he, along with other British politicians outspoken in their support of the deadly siege of Iraq, might find themselves summoned before the International Criminal Court. A report for the UN secretary general by a world authority on international law describes the embargo on Iraq in the 1990s as "unequivocally illegal under existing human rights law", a crime that "could raise questions under the Genocide Convention". Indeed, two past heads of the UN humanitarian mission in Iraq, both of them assistant secretary generals, resigned because the embargo was indeed genocidal. As of July 2002, more than $5bn-worth of humanitarian supplies, approved by the UN Sanctions Committee and paid for by Iraq, were blocked by the Bush administration, backed by the Blair and Hain government. These included items related to food, health, water and sanitation.

Above all, why aren't Blair and Bush Jnr being charged with "the paramount war crime", to quote the judges at Nuremberg and, recently, the chief American prosecutor - that is, unprovoked aggression against a defenceless country?

And why aren't those who spread and amplified propaganda that led to such epic suffering being charged? The New York Times reported as fact fabrications fed to its reporter by Iraqi exiles. These gave credibility to the White House's lies, and doubtless helped soften up public opinion to support an invasion. Over here, the BBC all but celebrated the invasion with its man in Downing Street congratulating Blair on being "conclusively right" on his assertion that he and Bush "would be able to take Baghdad without a bloodbath". The invasion, it is reliably estimated, has caused 655,000 "excess deaths", overwhelmingly civilians.

If none of these important people are called to account, there is clearly only justice for the victims of accredited "monsters".

Is that real or fake justice?


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