There are nevertheless three main reasons why the sentence passed last Sunday should make every decent American cringe. First of all, the trial was a kangaroo affair. Secondly, it will make the sectarian turmoil worse. Last but not least, it will make a dignified American exit ever more difficult. ~Srdja Trifkovic

Something about international and other war crimes tribunals generally has often puzzled me: why have them?  Even when they are not the three-ring circus that Hussein’s trial was, as Dr. Trifkovic details, they are questionable.  On the one hand, the result of such a trial is obviously a foregone conclusion.  A genuinely fair trial presupposes that the suspect might be found not guilty or that the prosecution was unable to prove its case, when the entire process of “proving” something that everyone already claims to be general knowledge (or so they tell us, anyway) is not much better than a circus act as the prosecution never actually has to demonstrate anything for its case to succeed.  It must go through the motions, but the evidence is simply superfluous to what everyone already assumes to be the irrefutable truth.  There is a very real sense for the people who advocate for these kinds of tribunals that the only injustice that could result is an acquittal, in which case it is clear that we are not talking about justice but simply retribution.  Perhaps it is appropriate retribution, entirely deserved and as legitimate as such retribution will be (then again, it may be self-serving, entirely politically-motivated retribution more akin to a Stalinist show trial–the line is very thin and easy to cross once you start making a travesty of judicial proceedings), but it is not remotely what we understand as justice in our own courts.  Hence the absurdity of the claim that trying Hussein (or Milosevic or, if they are ever arrested, Karadzic and Mladic) will somehow subject them to a kind of justice that they never practiced against their victims.  Execute your international political enemies if you must, or in this case allow some Iraqis to execute their hated political foe, but do not pretend that you and the native court to which you have outsourced the work are doing anything substantially different from what they have done (though admittedly they did it usually more often and more brutally).    

All of this makes a mockery of the trial proceeding in its pretense to fairness and justice.  Hussein does deserve to die if anyone does, as Dr. Trifkovic states at the beginning of his article, but why do we insist on mucking up what is plainly a case of executing a tyrant with all of these elements of a trial process complete with representation, testimony and standards of evidence?  Especially when the standards are shoddy and the Iraqi government bumps off the defendant’s lawyers, it can hardly be called a real trial; but even if these things didn’t happen, would it make any sense to go through the charade of a trial?   These tribunals only exist for people whom we already assume to be villains, and only those whom we already assume to be villains are ever tried in such tribunals.  Thus, if you are brought before such a tribunal, it is fair to assume that you will be found guilty, because it was determined long ago that you are guilty.  Not just guilty of this or that crime or abuse, but in some sense guilty of every abuse that took place during your time in a position of authority.  

There is never any danger (for obvious and actually defensible Realpolitik reasons) that most of the responsible politicians and commanders from the officially “good” side in a conflict will ever be brought before such a tribunal or even charged with anything.  There is certainly never any danger that we would apply the same standards to a Western or allied government that we apply to the officially vilified ones.  After all, why would “we”?  It is axiomatic that “we” do not torture and “we” do not “intentionally” target civilians (even though “we” use cluster bombs in civilian areas), so there would never be anything to charge our officials with.  One man’s tragic accident in time of war is another man’s atrocity.  That is what the highest level of international human rights law amounts to in practice, and not for nothing have people pointed out that such a practice makes these tribunals’ claim of some high moral authority completely incredible. 

Now there are also pratical political reasons why it might be unwise to execute the former head of state of a country you are trying to occupy and pacify (especially if the trial and execution are run by some of the locals).  While Japanese nationalists might lay all of the blame for any atrocities that they might admit happened at the feet of the military government to shield the late Emperor from any taint of responsibility, Hirohito was the head of state with some real political power at a time when his armies were committed outrageous atrocities.  In some very real sense, he was as culpable as his ministers (a truth that cuts both ways–if Hirohito could be spared hanging, why not Tojo?).  Americans did try and execute ministers and government officials as war criminals, but wisely they left Hirohito untouched (for related reasons, they also allowed him to retain what became a ceremonial but still politically important position).  Granted, Hirohito’s position was far more respected and his person was more revered than will ever be true of Hussein, and Japan was not riven with sectarian hatreds that would have played out in any proceeding against him (another reason why Japan was relatively easy to occupy and reform), and as men in terms of their character it seems clear that there can be no close comparison, but the thinking was that to either depose him or put him on trial would be to incite resistance and make the occupation very difficult.  As usual, the jingoes that have gotten us into Iraq with breezy talk about how “we rebuilt and reformed Germany and Japan, and we can do it again” have done still another thing quite differently from how the occupation authorities in Japan handled the matter of the head of state’s war crime guilt.  Yet they have expected the same successful result, as if invoking the precedents of post-WWII experience was the same as following those precedents.

In Iraq the execution will have potentially very explosive effects as a symbol of a sectarian vendetta being carried out, as Dr. Trifkovic notes:

The verdict is more likely to become a landmark event in the history of the Iraqi civil war, with all parties perceiving the trial as Shia revenge on Saddam’s fellow Sunnis.   

More troubling for Americans than that is the reality that Hussein’s execution will delay and perhaps completely wreck whatever remote possibility of political settlement with the Sunnis still remains:

The reason why last Sunday’s verdict makes American disengagement more difficult is simple: a viable exit strategy demands the development of a working rapport with Iraq’s six million Sunnis, who provide the backbone of the insurgency. By seeing first-hand that they cannot expect fairness or justice from this or any other Shia-dominated government, Sunnis will be even less motivated than before to end their resistance. In other words, to control the situation the U.S. would need to create a split within the ranks of Iraqi insurgents between those who are driven primarily by nationalist and tribal motives, and the ideologues of jihad who don’t give a hoot for Iraq as such but simply want to use it as a chapter and a focal point in their global struggle. This would require overcoming distaste for a dialogue with former Baathists and Saddam loyalists, but no such dialogue will be possible if Saddam is hanged under the noses of American soldiers.

Of course, we are now in a particularly nasty spot, since Hussein’s execution has been set and we can stop it only at risk of completely alienating the Shi’ite-dominated government:

On the other hand, if Washington acts to prevent such outcome, the breach with the Shiites—inevitable although not yet imminent—would draw closer and make Iraq even less governable than it is today.

There is no question that it is a dreadful mess.  I remain convinced that the only real course of action left to us is to leave by the front door, and to do so relatively quickly and soon.  The great and the good tend to dismiss every “solution” that anyone has come up with (partition won’t work, federalism won’t work, more troops is not practicable, etc.), yet they also maintain that withdrawal is unacceptable (there might be chaos in Iraq!–as opposed to what is there now).  But it is only unacceptable because they remain convinced that there is a solution to Iraq’s problems that we can provide.  Perhaps Iraq itself is the problem and the Iraqis must solve it by dissolving it without our involvement.  As with Yugoslavia, this dissolution did not have to happen but for outside interference, but now that it has begun the best thing outsiders can do is get out of the way and not make the internecine quarrels of an artificial nation the concern of the major powers any longer.