I am anti war. You stupid evil scum are pro Saddam.

[Justin]

Michael Kalus (2003-12-22 00:28Z) wrote:

> > As Bill Stuart pointed out, this is not an American war.  This is a
> > war (or so the U.S. claims) based on alleged violation of an
> > agreement between Iraq and the UN.  It seems to me that American
> > Courts or American Tribunals have no authority to preside over
> > Saddam's case in general.  I don't think anyone wants to try Saddam
> > for crimes over which the U.S. might have jurisdiction.  There's
> > likely a much better case that he killed various subordinates, or
> > that he gave orders to murder a bunch of Kurds, or that he murdered
> > various people in his ascent into power, than there is that he
> > offered material support to Al Qaeda or some other terrorist group.
> 
> I agree they should. But this war was not sanctioned by the UN, nor
> did the US ratify the ICC. Sure, the British and spanish and Italian
> where along for the ride, but the US Administration made it clear
> several times that THEY are going to call the shots on Iraq.

But the U.S. position since way before the war has been that this is not
a bilateral conflict.  That alone seems to invalidate any notion that
the U.S. has sole jurisdiction over prosecutions stemming from the
"war".

Are you suggesting that we might try to get the ICC to handle Saddam's
trial and that they'd refuse on the grounds that it was a
Bush/Blair/Howard junta that went to war rather than an international
coalition?  It would be highly amusing if the ICC signatories were to
say that, but I don't see it happening.

> > Please explain why an Iraqi court must give Saddam U.S. style
> > procedural rights, because I don't understand.  I know you said
> > "should", but what does that mean if not "must"?  The U.S. has no
> > influence on Iraqi judicial proceedings, or at least it shouldn't.
> > Appeals to ethics don't mean anything when one talks about a
> > different culture.
>
> If the US is serious to establish a democracy in Iraq than this would
> also mean a reform of the Criminal Justice system. Most likely built
> on the "best" system in the world and that would make it the US one,
> no?

Even if the United States wants to reform the Iraqi judicial system to
incorporate most or all of U.S. rights (which really don't exist here
anymore thanks to decades of creative work by the Supremes), I think
that goal is orthogonal to the matter of how to treat Saddam.  The Iraqi
courts haven't been reformed yet.  There's no Iraqi constitution, and
the country isn't even sovereign, in the sense that there's no permanent
system of authority or law.  If Iraqi courts are to be used, do
prisoners just have to sit around for years until the process generates
a criminal justice system with adequate procedural guarantees?  I would
think that the current courts have to be used, regardless of what shape
they're in.

We really have no direct control over what goes on in Iraq.  We can use
diplomacy to try to influence what the governing council does, but it's
the governing council that's creating a constitution.  I'm really not
sure what we'd do if the governing council were to come up with a
constitution without the equivalent of our 4th-8th amendments.  Would we
march into the meeting chamber and kick everyone out, and seat military
commanders at the table instead?

Also, there's an existing (1968) constitution in Iraq, ignoring the
post-coup modifications, and Saddam ignoring it for a few decades
doesn't mean it's bad.  I haven't read it in translation and I don't
know Arabic, so I can't say what the old constitution guarantees in
terms of criminal procedure.  But allegedly it wasn't a terrible
constitution, and it probably guarantees something.

How much influence can we exert without turning Iraq into a U.S.
territory?  It's easy to argue that we've gone too far already by
screening Governing Council members.  Are you suggesting that Iraq
should be a U.S. territory?  If the Governing Council is a puppet, does
it matter whether they have fair trials?  I would think in that case
that any trials they conducted would be invalid, even if no other
countries were to object.

Just because we're there and we're trying to set up a democracy that has
some toleration for religious freedom and speech doesn't mean we have an
obligation to turn Iraq into a puppet state and run U.S. trials for
people who violated Iraqi law.

-- 
I am a carnivorous fish swimming in    #+#  Banking establishments are
two waters, the cold water of art and  -*+  more dangerous than standing
the hot water of science.  - S. Dali   #-#  armies.  - Thomas Jefferson