Should Saddam Hussein be Prosecuted for the Crime of Aggression?

This is the next issue posed today at Grotian Moment blog. The quick response, naturally, is yes. Just ask Kuwait or Iran. William Schabas answers the question "Yes" but has to make it a "Yes, but..." thanks to the manner in which the current war was waged. He is candid enough to spell it out with all its contradictions. It seems the designation of "aggressive" war has been tempered with a presumably less criminal concept of "preemptive" war.

So why shouldn’t Saddam Hussein be tried for the 'supreme international crime', instead of an isolated massacre, as seems currently to be the case? The answer is straightforward enough. Any prosecution of Saddam Hussein for aggression would invite analogies with the aggression committee by the US and the UK in early 2003, against Iraq.

Intriguingly, the argument that Saddam committed aggression in Kuwait is somehow joined at the hip with the argument that the US and the UK were justified in invading Iraq 13 years later. Security Council Resolution 678, adopted following the first Gulf War, mandated the coalition forces to use all necessary means to force Iraq to withdraw from Kuwait and to restore peace and security to Iraq. Over the years, the US and the UK used force against Iraq on this basis on several occasions.

But the fundamental justification for the 2003 invasion, Iraq’s possession of weapons of mass destruction, has proved to be a canard, as everyone now knows. The realisation that the legal justification of the invasion was hollow did not, however, seem to be sufficient to provoke the invaders into immediate withdrawal of their armed forces.

This comment is not the place to debate whether or not the US and the UK committed aggression. What a pity that this important question, too, cannot be the subject of a trial. Alas, there is no forum for such a debate. The issue seems inseparable from what is the ultimate hypocrisy. Nazis were convicted at Nuremberg by US and UK judges for the ‘supreme international crime’ of aggression. Yet Iraqis, including Saddam Hussein, will not be tried for the same crime, despite ample evidence that the waging of aggressive war was one of the central tenets of his despotic regime, as the country’s neighbours, Kuwait and Iran, know only so well. And this despite the appeals, in 1990, by Bush and Thatcher.

The visage of Saddam Hussein is already being televised all over the world. It is ironic that had he met with the same fate as his two renegade sons none of these events would be taking place. The hopeful angle, of course, is that by conducting a public trial the world can be shown a civilized alternative to violent conflict resolution, or at least a measure of justice somehow better than mob action.

Unfortunately, as I watch videos of ordinary people participating in capital punishment by stoning a condemned individual buried to the waist, or encounter equally savage impulses from otherwise gentle and clear-thinking people in our own culture, I have to conclude that civilization still has a long, long way to go.