A Trial for Saddam Hussein

December 17, 2003 -- Saddam Hussein now will stand trial for his crimes. The lessons of the trial could be as critical as Saddam’s capture.

All trials reflect fundamental underlying principles. In Western societies they seek to settle disputes or to right wrongs, with advocates for the parties involved and impartial judges and jurors who make their decisions based on objective laws. The goal is justice. In dictatorships, “show trials” keep the physical trappings of a civilized system – a courtroom, a bench, a judge – but their goals are to terrorize the victim on trial and the population through the arbitrary use of power and to degrade them by forcing them to pretend that the proceedings have legitimacy.

After World War II there was no effective free German government to try the Nazi leaders, and in any case, by what standard would they be tried? The Nazis might argue that they came to power through elections, and that the enabling acts that they used to persecute alleged internal enemies were passed by the Reichstag. The forms of the law were satisfied even as the actual rule of law was destroyed.

The special Nuremberg tribunal both extracted justice from the Nazi tyrants and helped reestablish the principles of justice and civilization in Germany and in Europe. The Nazi defendants were allowed to have counsel and the charges – waging an aggressive war, war crimes and crimes against humanity – were spelled out. The fact that some of the accused were acquitted showed that this was not a mere show trial by the victors.

Most Nazi defendants argued that they were only following orders, that they were doing what the citizens of any country are obligated to do: obey the laws and the commands of their rulers. The Nuremberg tribunal rejected that argument, a decision that points to the most crucial aspects of any law: it must be based on sound moral principles to be legitimate and it does not absolve individuals of their personal moral responsibility if the law is clearly unjust. Although the trial had its problems – the Soviets were judges but were guilty of many of the same atrocities as the Nazis – it did reaffirm in the Western world that only a higher moral law makes manmade law legitimate.

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A trial that upholds the sound principles of a free country will be an indictment of other repressive cultures and governments.

Israel’s 1961 trial of Holocaust architect Adolph Eichmann was noteworthy because it was the country founded by so many Holocaust survivors that brought him to justice. Further, an important lesson was reaffirmed by Hannah Arendt in her book Eichmann in Jerusalem: A Report on the Banality of Evil. After any political or human disaster like Nazi Germany it is crucial to learn why it occurred in order to ensure that it never happen again. Arendt’s book showed that Eichmann was not some hate-crazed, ranting anti-Semitic monster. Rather, he was a little bureaucrat, an apparatchik whose narrow soul and obsession with the morality of duty led him to participate in one of history’s most heinous crimes. The lesson of Arendt’s book was that we must question any philosophy that teaches us mindless or fanatical obedience.

The Iraqis will try the Butcher of Baghdad in circumstances very different from the allied trials of the Nazi leaders. Western Europe had the cultural, institutional and philosophical elements necessary for free societies that respect and protect the freedom of individuals – elements that were abandoned by the Nazis. Iraq and most Middle East countries never had those prerequisites to freedom.

Thus, if Iraq’s interim leaders try Saddam, they will not only be extracting justice but also will be establishing the underlying principles that they believe should govern their country. The trial will have regional implications as well. The other Middle East countries are simply variations – albeit sometimes less virulent – of Saddam’s regime. Their cultures and governments are repressive and corrupt. Major parts of their populations accept the crudest kinds of radical Islamic fanaticism. A trial that upholds the sound principles of a free country – individual rights and limited government to protect the lives, liberties and property of the citizens – will be an indictment of the cultures and governments in Iran, Saudi Arabia, Syria, Pakistan, Egypt and the Palestinian authority.

It is very difficult for countries to reverse decades or centuries of failed societies; the former communist countries are still struggling. Ideally, Saddam’s trial will illuminate the principles that will light the path for those individuals in the Middle East who are trying to reform their respective countries. Hopefully Muslim and Arab Hannah Arendts will arise to explain the defects of their societies and to point to the principles that are universal and proper for individuals in any country or culture. Hopefully the trial will be a first step in the process by which the peoples of a despotic region of the world will make their counties into fit places for human beings to flourish.

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