Monday
(0)John Keegan has an excellent column in the Telegraph today on the legal problem of what to do with a deposed sovereign. One suspects that Mr. Keegan wrote this column months ago, in the sure knowledge that sooner or later it would become topical when Saddam was winkled out of his hole. The column provides a nice historical overview of "sovereign immunity."
How to dispose of a fallen dictator is a problem of immense complexity for victor states. Dictators have been sovereigns, as Saddam was, de facto if not de jure. Sovereign states shrink from disposing peremptorily of sovereign rulers. The process, whichever is chosen, always threatens to set inconvenient precedents. Since 1648, when the Treaty of Westphalia created the principle that sovereign states, and therefore their sovereign heads, are both legally and morally absolute, there has been no legal basis for proceeding against such a person, however heinous the crimes he is known to have committed.[Brief discussion of Napoleon, Kaiser Wilhelm, various Axis dictators, which should not be missed.]
None of these precedents seems likely to spare Saddam. He may, de facto, have been head of state but, by fleeing his capital and office at the outset of the last Gulf War, he effectively abandoned whatever constitutional status he enjoyed. The power vacuum he left has been filled by the creation of the Iraqi Governing Council, which, very conveniently last week, announced the establishment of a tribunal empowered to try any Iraqi citizen - and that Saddam unquestionably is - for crimes under domestic law. Prima facie, Saddam has to answer for many crimes, including murders he has himself committed, large-scale episodes of murder and torture of his fellow citizens, and organised extermination of minorities, particularly Kurds and Marsh Arabs, inside his own country.
I back into being a supporter of sovereignity, on the theory that a multitude of sovereign states limits the damage that any one of them can do, and that liberty arises in part from competition among dispersed authorities and powers. Solving the sovereign immunity problem by placing sovereign states under the jurisdiction of an overarching power seems to me to be a cure worse than the disease, because it creates a qui custodiet ipsos custodes problem, and because the supranational authority would be largely immune to democratic accountability. However, I see no reason why government officials should be immune from judicial accountability to their own citizens, which is precisely the solution that seems to be in the offing in Iraq.
On a bit of a tangent, Mr. Keegan makes the astonishing assertion at the end of the column that "at present there is no death penalty in Iraq. . . ." I would not dream of questioning the eminent Mr. Keegan on a point of fact such as this, but how can it possibly be true? I cannot believe that Saddam did not have the death penalty on the books (could all of those hundreds of thousands of executions have been extrajudicial?), and I cannot imagine that the Iraqi death penalty has been revoked in the last 6 months. Input from the commentariat would be appreciated - I sense a fine bit of obscure knowledge here, just out of reach, begging to be retailed to impressionable young things at cocktail parties.
The stories I've seen say the death penalty was suspended. One Governing Council member was quoted to the effect that they intend to restore it the day after the final transfer of sovereignty, with an eye toward former regime figures.
Posted by Aaron Armitage at December 15, 2003 09:59 PM
This isn't all that difficult of a problem. When you find yourself stuck with a disposed dictator, simply find yourself a rope and tree. Put the three together cowboy style.
Posted by Rossz at December 16, 2003 02:29 AM
As readers of my comments will have noticed I'm a Westphalian too. If this makes me more conservative than the conservatives then so be it. Somehow modern internationalists have got the queer idea that their idealistic solution to all the world's problems must be cleverer than the pragmatic one developed by the evident diplomatic mugs of the 1640s. (You know, that chump Descartes and his peers.)
There's a quibble with Keegan's coda for the Westphalian pragmatist, however:
"[...] he effectively abandoned whatever constitutional status he enjoyed."
No. Sovereign immunity is meaningless if it is temporary. In order to be brought to trial, you have to lose the actual protection of sovereign power. (This formulation offers to punish dictators who retire into exile, or accept constitutional immunity at home (as Pinochet)--and thus a bloodier future for us all.)
I think RCD is right that a sovereign nation may prosecute its former leader. But sovereign immunity is immunity against other states, or gangs of states. Nobody else but the Iraqis ought to be able to prosecute Saddam. Whether they can or should depends on a domestic settlement.
Posted by Guy Herbert at December 16, 2003 06:48 AM
As I understand it, The Coalition Provisional Authority suspended the death penalty while the Iraqis put together their new legal system.
The Iraqis can reinstate the death penalty as part of their legal code, if they desire.
Posted by George Atkisson at December 16, 2003 07:14 AM
I have read somewhere that the Coalition Provisional Government suspended the death penalty "as a result of heavy pressure from the British".
Apart from the obvious questions of "what pressure could they possibly bring to bear" and "why would the Americans care anyway", this sounds entirely plausible. It is eminently Blairish.
Posted by Andrew Duffin at December 16, 2003 12:19 PM
Apart from the obvious questions of "what pressure could they possibly bring to bear" -
Well they could take their ball back and go home...
"why would the Americans care anyway"
Some obviously don't, some obviously do...
Posted by mad dog at December 16, 2003 03:56 PM
Shoulda known Blair was behind it. In the one country with an obvious, crying need for the death penalty, he insists that it be suspended.
Posted by R. C. Dean at December 16, 2003 04:49 PM
RCD: The British government may have been thinking ahead there. As an EU member the UK is prohibited from deporting erstwhile Ba'athists to an Iraq where they might meet the death penalty. The death penalty is suspended in Iraq? -- No problem.
Posted by Guy Herbert at December 16, 2003 06:08 PM
Inasmuch as Saddam was "elected" as the leader of the Baath'ist "party", my understanding of the language excludes him from being a sovereign.
By any rational use of the words, a sovereign leader's defeat requires the dissolution of the country embodied by the sovereign.
As a political (rather than a sovereign) leader of the country it is he and he alone who bears the onus of his works, and leaves him liable, rather than the country as a whole.
As regards punishment, what we have in the States is a prohibition against "cruel and unusual punishments", which unfortunately has oft been construted as mandating against the death penalty.
Notwithstanding the baselessness of the anti-death penalty faction, I feel that this may be a case where a cruel and unusual punishment is called for; perhaps something on the order of the actions taken by the late leader himself.
Trees may be hard to find, but widows and orphans are not. Perhaps we could leave it up to them?
Posted by jc at December 16, 2003 09:56 PM
Israel has never had the death penalty, but they somehow managed to hang Eichman.
Posted by Naif Mabat at December 17, 2003 04:20 AM
Israel has always had the death penalty (and still does) for treason and Nazi war criminals. (
According to Wikipedia the death penalty is "abolished for ordinary crimes".)
Posted by Adam at December 23, 2003 10:25 PM
