Eric Posner: Justice Within Limits

Justice Within Limits
Eric Posner
The New York Times
September 26, 2005

The trial of Saddam Hussein will have the same structure as a certain type of detective novel: we know who did it, and we know how it will all end; the only mystery is how we will get there. The defendant will be found guilty of crimes against humanity -- but will he be able, in the process, to discredit the Iraqi government and strengthen the hand of the insurgency? Unless the Iraqis and their American advisers pay close attention to the politics of the trial, the answer may well be yes.

Every international criminal trial has a political dimension, thinly veiled by the official account. Officially, the defendant is guilty of atrocities, yet is being granted procedural rights that he would never have granted to his own enemies, thus vindicating the rule of law. The underlying politics, on the other hand, reflect the need for a settlement that gives members of the old regime a reason to participate in the new one.

For example, the Nuremberg trials after World War II were presented as an advance of the rule of law into international politics. But it was quickly realized that the logic behind the rule of law implied that everyone who participated in the Nazi regime would have to be punished, a result that was incompatible with political needs -- enabling Germany first to feed its own people, then to participate as a liberal democracy in the postwar international order. An early, idealistic effort to punish nearly everyone involved in Nazi atrocities was abandoned. This pattern was more or less duplicated in postwar Japan. In the transitions to democracy made in Eastern Europe after the collapse of the Soviet Union, many leaders avoided trials and pursued reconciliation.

The lesson for Iraqis that it will avoid civil war only if lower-level former Baathists believe that they have a role in the new political order. They will be watching the trial carefully to see whether the legal theories used against Saddam Hussein sweep in all those complicit in the regime.

The only current charge against Mr. Hussein (and seven of his aides) stems from the executions and detentions of Iraqis after a failed assassination attempt in the town of Dujailin 1982. The question is, are all the people involved in this event to be treated as criminals? If so, does this include every soldier or security agent or prison guard who detained people? What about owners of the banks that financed the regime, the factories that produced its weapons? The decisions made in the trial will begin to answer these questions, and the more they suggest expansive liability, the bleaker the outlook for peace will be.

This is not to advocate a blanket amnesty. The question is where the line should be drawn. The answer depends not on law but on politics, on the importance of the members of the old government for the success of the new one. It is unfortunate that this political question must be answered in a legal forum. It is unlikely that the judges have the political acumen that would allow them to draw the line in the right place; indeed, they will most likely resent the suggestion that their decisions should reflect politics in any way.

If so, the line-drawing question will be thrown back into the political arena, where narrowly defined amnesties can be devised. But the politicians have enough problems without having to repudiate judicial decisions, which would place the legitimacy of the infant government and the independence of the judiciary in doubt.

To avoid such dangers, the judges should resist the Nuremberg-like impulse to advance the international rule of law by asserting expansive theories of liability like complicity and limiting defenses like ''just following orders.'' They should convict Saddam Hussein on the narrowest grounds possible, so that his former supporters do not infer that they will be placed in legal jeopardy as well.

Yes, Saddam Hussein's victims and international lawyers would complain, but Iraq will not enjoy peace unless the Baathists are brought back within the political fold.

Eric Posner, a law professor at the University of Chicago, is the co-author of The Limits of International Law.

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