Samizdata

Interesting argument by noted libertarian and Rand scholar Chris Sciabarra about the capture of Saddam. He argues that because Saddam clearly was determined to survive rather than die in a blaze of glory, this proves he was amenable to force, and therefore deterrable. In short, that we could have deterred Saddam from his monstrous ambitions and did not need to invade Iraq to foil him.

Hmmmm, as they say when confronted with arguments like this. I truly do not know. Is it really the case that a man who defied a hatful of UN resolutions, invaded Iran and Kuwait, consorted with known terrorists, and who threatened to destroy Israel was the sort of guy who could be deterred in the manner of the Soviets during the Cold War? (And by the way, recall how close to disaster we got in the Cuban missile crisis).

I honestly do not know with certainty and I very much suspect that Chris Sciabarra does not know this for sure, either. Deterrence as a foreign policy option has been the mainstay of the isolationist libertarian case since 9/11, as seen here over at Jim Henley’s blog. But the Middle East always struck me as being the place where mutually assured destruction could go horribly, horribly wrong.

And of course if deterrence did work, that still leaves the small issue of whether we could, and should have let Saddam stay in power had we been able to prove clear links between him and terror groups possibly implicated in 9/11.

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.