The Pitfalls of International Law

The most fundamental human right – the right to life – was stipulated in the Universal Declaration of Human Rights of 1948. But does a dictator who has committed countless murders himself have the right to life, or would the death penalty not be the appropriate punishment for him?

Dawid Bartelt, press officer of the German section of Amnesty International, is adamant on this point:

"We categorically condemn and oppose the death penalty – for very basic reasons. The fact is simply that human rights apply to everyone and no one shall be deprived of them, at least the fundamental human rights. Even criminals have human rights, however heinous their crime may have been."

Countries that have abolished the death penalty still have suitable punishments at their disposal, Dawid Bartelt believes:

"For Amnesty International, as for all other rational people, there is no question that Saddam Hussein has committed terrible crimes which he must answer for. Naturally, the punishment must reflect the seriousness of the crime. There are few alternatives in this case. If the death penalty were ruled out, as we are calling for, then it would certainly have resulted in a life sentence."

A coming to terms

Whereas punishment was previously intended as retribution and vengeance for crimes, the purpose of punishment has changed over the centuries. Now it is also regarded as a means of resocializing and reintegrating the perpetrator into society. Of course, that hardly applies to a former dictator, but a fair trial serves another purpose.

In addition to determining the punishment for the offense, the public should be informed about the crime, the background, and all those responsible. At best, it is an opportunity for the country to come to terms with its history, Dawid Bartelt feels:

"The other purpose is to set an example, which would be particularly important in the situation that Iraq is in at the moment – that this is a new government, after Saddam Hussein. A government that relies strongly on the rule of law. In this case, the trial could also have made a symbolic gesture. It is a great achievement for a country governed by the rule of law to not simply take revenge but to say, especially to the worst criminal, 'Saddam Hussein, we are treating you differently than you treated us. We are trying you under the rules stipulated by international jurisdiction.'"

A smack of victor's justice

The question of which court can conduct such a trial in an exemplary and informative manner, fairly, and according to the rule of law remains problematic, however. Despite all its efforts toward impartiality, a court established by the victors will always smack of victor's justice. Critics of the Nuremberg Trials, which were supposed to punish Nazi atrocities, invariably mention these words.

They forget, however, that the situation after World War I was unique and that international law was not yet prepared for dealing with those war crimes judicially.

A court in the perpetrator's native country seems to be a good solution; the state, its judiciary, and its people are supposed to deal with the crime without external intervention. This is mere theory, however. Not for nothing was Iraq country a dictatorship without impartial judges, but with a political regime that exerted its influence everywhere. To expect a functioning legal system there appears naïve, or, perhaps, radically optimistic, to say the least.

Serious procedural irregularities

Particularly during the transition phase that Iraq is going through at present, it is difficult to conduct a fair trial. The dictator's former enemies are now in dubious power and are attempting to exercise their influence. Amnesty International also complained about serious procedural irregularities during Saddam's trial, including defense counsel which was appointed too late and boycotted judges, says Dawid Bartelt:

"The trial against Saddam Hussein was a highly politically charged process which does not meet the standards of legal proceedings."

Yet there would have been alternatives, according to Bartelt:

"If that does not work because the political situation and the circumstances in the country are not working, then a second possibility would have been a mixed court – Iraqi judges and internationally appointed non-Iraqi judges. In this way, a protective function can be introduced by internationalizing this tribunal. Another possibility would have been to bring Saddam Hussein to trial immediately before an international tribunal outside Iraq, similar to Milosevic and other trials. These two possibilities were not given a chance."

For example, the International Criminal Court in The Hague is a court that would have jurisdiction over such crimes, provided that they were committed after 2002, when it began its work. The Criminal Court is not recognized by the US, China, Russia, Iraq, and Iran, among other countries, however.

The internationalization of criminal jurisdiction

Moreover, a fair trial for an ex-dictator – and former head of state – is always dependent on the political intent of the participants. The politicians who are subsequently at the head of the country affected, as well as neighboring or involved countries, must support it. That is often the reason for failure, Dawid Bartelt admits:

"Implementation is precisely the problem, but the instruments have improved, become stronger and more acute, and provide a basis. Implementation breaks down naturally because of political circumstances, powerful political interests that make the situation more complicated – and that was invariably the case with Saddam Hussein."

"Of course, these are processes that do not have an impact from one day to the next," Bartelt goes on to say. "But we are irreversibly moving toward an internationalization of criminal jurisdiction where dictatorships can no longer be secure, which must be making dictators increasingly fearful."

Daphne Antachopoulos

© Deutsche Welle 2007

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