WHY AND HOW SADDAM MUST BE PUNISHED

A JURISPRUDENTIAL/PHILOSOPHIC EXPLANATION

By Louis Rene Beres

When the victorious allied powers established a special military tribunal at Nuremberg on August 8, 1945, they reaffirmed an elementary principle of law: Nullum crimen sine poena, "No crime without a punishment." In 1946, this reaffirmation was underscored in Principle I of the binding Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." These Nuremberg Principles were later formulated by the United Nations International Law Commission, at the request of the General Assembly in 1950, stipulating:

"Offenses against the peace and security of mankind....are crimes under international law, for which the responsible individuals shall be punished."

Why, exactly, should a head of State like Saddam Hussein be punished for his multiple crimes under international law? Consider the following argument: The philosophic rationale of punishment lies in part in the imperative to incapacitate particular persons from the commission of further crimes and to inhibit other prospective criminals from commiting similar grave offenses. The entire argument, in fact, can be abstracted from Plato's Protagoras:

"No one punishes those who have been guilty of injustice solely because they have committed injustice, unless he punishes in a brutal and unreasonable manner. When anyone makes use of his reason in inflicting punishment, he punishes not on account of the fault that is past, for no one can bring it about that what has been done may not have been done, but on account of a fault to come in order that the person punished may not again commit the fault, that his punishment may restrain from similar acts those persons who witness the punishment."

Protagoras's theory of punishment rejects the alleged violence and irrationality of straight retributivism. For Plato, the very rationale of punishment lies in its orientation to the future, preventing the offender himself from repeated wrongdoing and deterring others from similar offenses. Regarding Saddam Hussein, President Clinton is assuredly interested in preventing the Iraqi dictator from undertaking further crimes, especially crimes of war, crimes of peace and crimes against humanity.

The ancient Hebrews viewed the shedding of blood as an abomination that requires expiation, "for blood pollutes the land, and no expiation can be made for the blood that is shed in it, except by the blood of him who shed it." This belief in "pollution" parallels that of certain ancient Greek theory. "The (Greek) Erinyes," says Marvin Henberg, "do for the Greeks of the seventh to fourth centuries BCE what Yahweh does for the ancient Hebrews; they dewmand the blood of homicides." The pre-Socratic philsophers, especially Anaximander, Heraclitus and Parmenides, displayed a metaphysical view of retributive jutice as inherent in the cosmos itself. Among the ancient Greeks, homicide pollution extended to those guilty of accidental murder and, left unpunished, even threatened the community at large. According to Marvin Henberg:

"Homicide pollution entails the following: One guilty of murder, deliberate or accidental, contracts a metaphysical stain, invisible save to the Erinyes and to the gods. Like a deadly disease, pollution renders the agent a danger to others, for until the stain is purified or the polluted person exiled the public at large stands threatened. Crops may be blighted (witness OEDIPIS REX) as incentive for the populace to seek out the murderer. Liability to suffering, then, is collective; and in its nearly allied form of the curse, pollution can be hereditary as well as collective, visiting each generation of a single family with renewed suffering. Finally, the doctrine of pollution imposes strict liability for its offenses. No excuse, justification or mitigation of penalty is allowed: The accidental manslayer must seek purification equally with one who kills out of greed or passion."

Aeschylus offers a sense of the Greek view of punishment. In THE LIBATION-BEARERS (310-14) the chorus intones: "The spirit of Right cries out aloud and extracts atonement due: blood stroke for the stroke of blood shall be paid. Who acts, shall endure. So speaks the voice of the age-old wisdom."

Let us return to Plato. Thinking of vice, the source of crime, as an ailment of the soul, just as physical disease to the body, he recommends punishment to restore order in the soul. The criminal, therefore, derives a positive consequence from punishment. Discarding the claims of retributivism, as we have already noted, Plato views punishment as just and good only to the extent that it serves human welfare. Punishment, in this view, should turn others away from vice and teach virtue. Aristotle, Cicero, St. Thomsas Aquinas, Hobbes, and Bentham have taken similar positions. Says Bentham:

"The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, everything that tends to subtract from that happiness; in other words, to exclude mischief....But all punishment is mischief; all punishment in itself is evil. Upon the principle utility, if it ought at all to be admitted, it ought to be admitted in as far as it promises to exclude some greater evil."

It follows here that utilitarian views of punishment, in contrast to retributivist perspectives, may or may not support the principle of Nullum crimen sine poena. As to the retributivist perspective, Immanuel Kant remains the classical example of this view of legal punishment, but in this case retributive justice is not a matter of revenge. Rather, Kantian retribution, as an action of the state against the criminal, is always an impersonal action, one undertaken without passion, and as a sacred duty. For Kant, the legal punishment of criminals is a distinct categorical imperative. It is in Kant that we recognize the strongest possible reaffirmation of Nullum crimen sine poena:

Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the blood-guilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice.

Kant returns to the beginning, to the concept of "blood guilt," and to the insistence that society has a duty to punish even without resulting utilitarian consequences. For the United States, the Nuremberg obligations to bring Hostes humani generis ("common enemies of humankind") to trial are doubly binding. This is because these obligations represent not only current obligations under international law, but also the obligations of a higher law embedded in the United States political tradition. By codifying the idea that justice is peremptory, that it cannot be traded-off for reasons of political expedience or even for presumed conditions of peace, the Nuremberg obligations reflect perfect convergence between international criminal law and the law of the American Republic. Of course, all international criminal law is already part of the law of the United States, an incorporation expressed at Art. VI of the U.S. Constitution and by associated Supreme Court decisions.

Optimally, custody over criminals like Saddam Hussein would be possible via the established mechanisms of extradition and prosecution and by the associated means of "indirect enforcement" (prosecution within authoritative municipal courts in the absence of a permanently-constituted international criminal court or in an ad hoc Nuremberg-style tribunal), but these prospects are generally unrealizable when the alleged wrongdoers are political leaders. Thus, the method of forcible abduction, though hardly ideal, may be required. According to Vattel: "If a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him, any foreign power may rightfully give assistance to the oppressed people who ask for its aid." Indeed, continues Vattel: "As for those monsters who, under the name of the sovereigns, act as a scourge and plague of the human race, they are nothing more than wild beasts, of whom every man of courage may justly purge the earth."

Forcible abduction is not an unknown remedy under international criminal law. While great care must be taken not to violate peremptory human rights, where extradition is not a viable option the only real alternative may be to leave Saddam Hussein's crimes unpunished. Here, forcible abduction may be the only way (excluding, perhaps, in absentia trials or assassination) to give effect to Nullum crimen sine poena.

There are several recent examples of forcible abduction under international criminal law. Israel, in 1960, abducted Nazi war criminal Adolph Eichmann from Argentina on charges of Nuremberg-category crimes. In 1985, a United States military aircraft forced down an Egyptian aircraft over international waters on the grounds that the Egyptian plane held accused terrorists in the Achille Lauro Affair. In 1987, again in international waters, the F.B.I. lured Fawez Younis, a Lebanese national, on to a yacht and transported him by force to the United States for trial. And on April 2, 1990, Humberto Alvarez- Machain, a medical doctor and a citizen of Mexico, was forcibly abducted from his ofice by persons answerable to the Drug Enforcement Agency (DEA), and flown by private plane to Texas to face charges of kidnapping and murdering a DEA agent and the agent's pilot.

Regarding custody over criminals by forcible abduction, two issues present themselves: (1) seizure of Hostes humani generis when custody cannot be obtained via extradition; and (2) seizure of Hostes humani generis who happens to be a sitting head of state or leader of a political faction. On the first issue, we may consider that President Ronald Reagan, in 1986, authorized procedures for the forcible abduction of suspected terrorists from other states for trial in United States courts. Here the statutory authority for Reagan's position was contingent upon the terrorist acts being linked with the taking of U.S. citizens hostage (acts that are subject to the jurisdiction of U.S. courts under the Act on the Prevention and Punishment of the Crime of Hostage-Taking. In 1987, as already noted, the FBI lured a Lebanese national named Fawaz Younis on to a boat and transported him to this country for trial. His abduction was premised upon his suspected involvement in a 1985 hijacking of a Jordanian airliner at Beirut Airport, in which U.S. nationals had been held hostage.

On the second issue, there normally exists, under international criminal law, a substantial distinction between abduction of a terrorist or other Hostes humani generis and the abduction of a head of state or political leader. Indeed, there is almost always a presumption of sovereign immunity, a binding rule that exempts each state and its high officials from the judicial jurisdiction of every other state. Although the rule of sovereign immunity is certainly not absolute in the post-Nuremberg world legal order, the right of any one state to seize a high official from another state is exceedingly limited. In an 1812 case before the Supreme Court of the United States, Chief Justice Marshall went so far as to argue for "the exemption of the person of the sovereign from arrest or detention within a foreign territory." Nevertheless, where the alleged crimes in question are of a Nuremberg-category offense (and surely Saddam's crimes fit this requirement), and where no other means exist whereby to gain custody of the pertinent official(s), the peremptory or jus cogens expectations of Nullum crimen sine poena may clearly override those of sovereign immunity.

It is arguable, of course, that the formal proceeding of a trial can never be applied appropriately to such overwhelming lawlessness as that of Saddam Hussein (an argument that was made by Hannah Arendt about the Eichmann trial in Jerusalem), and that such a trial would actually undermine justice. Here, prosecution of Saddam Hussein, even if it were technically and politically possible, would be understood as a mockery of civilized international relations, not because of perceived abuses of power and legal procedure, but because such judicial "remedy" could create an erroneous appearance of proportionality. This argument, which holds that in certain cases of altogether egregious crimes, no amount of punishment can produce justice, leads directly to two diametrically opposite courses of action: (1) extra-judicial punishment (normally assassination ), or (2) leaving the egregious crimes unpunished. The first course of action is unsatisfactory in the context of this argument because it contains all of the elements of infinite regress (i.e., when if ever is the amount of extra-judicial punishment finally commensurate with the crime?) and because of the tactical difficulties involved in killing an "adequate" number of perpetrators. The second course of action is unsatisfactory because it expresses a flagrant disregard for peremptory expectations of Nullum crimen sine poena.

It follows from all this that an appropriate trial of Saddam Hussein would be productive of justice. At the same time, such a trial would be effectively inconceivable in actual practice. This means, in essence, that Saddam may be left unpunished (and in power to commit further crimes) or that he may be assassinated. If the latter, the purposeful killing of Saddam would have to take place in the context of planned United States military attacks.

Presently, of course, the United States is most concerned about punishing Saddam Hussein for his wilful disregard of U.N. Security Council resolutions concerning weapons of mass destruction and about the extraordinary threat he still poses to certain neighboring states with these weapons. U.S. armed attacks on Iraq, therefore, would be based in law upon collective security authorizations (i.e., pertinent United Nations resolutions) and upon the customary right of anticipatory self-defense (as distinguished from the codified right of self-defense, at Article 51 of the U.N. Charter, following an armed attack). These attacks would not be based in law on intended assassination of Saddam Hussein (for both pragmatic and jurisprudential reasons), although - in principle at least - such a rationale would be deducible from binding expectations of the human rights regime in international law and from the decentralized authority structure of world law. In the continued absence of a truly capable central global authority and of a viable law enforcement apparatus in world politics, the assassination of Saddam Hussein could be distinctly law-enforcing. Much as many would now seek to deny it, without such an assassination Nullum crimen sine poena will remain an altogether hollow principle.

This argument is strengthened by the underlying and overriding expectations of Natural Law, expectations that lie at the very heart of American law and politics. As Blackstone observed, in the Fourth Book of his Commentaries (the book upon which so much of our American legal system is based), international law is nothing more than an operational code for "the eternal, immutable laws of good and evil." For Blackstone, all international law is deducible from Natural Law and is, therefore, binding upon each and every country. Thus, each state is called upon "to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law...."

Natural Law, which forms the basis of international law, always corresponds to that which is "good and equitable" (bonum et aequum). Stemming conspicuously from the Decalogue and from the Covenant Code of Israel, which are deeply embedded in the American heritage and consciousness, Natural Law is expressed not only in the Declaration of Independence but also in the Bill of Rights. The Ninth Amendment, in stipulating that "the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated, reflects the belief in a law superior to the will of all human governance.

We may conclude, then, that United States responsibility to ensure punishment of Saddam Hussein - an ensurance that could require assassination of the Baghdad tyrant - derives not only from the explicit expectations of international law (expectations which are already part of U.S. law by virtue of Article 6 of the Constitution and of associated Supreme Court decisions) but also from the Natural Law foundations of U.S. municipal law. In the strict sense, the Natural Law foundations of United States law are not a distinct alternative to international legal rules, but rather a distinct source of international law. According to Article 38(c) of the Statute of the International Court of Justice, international law derives in part from "the general principles of law recognized by civilized nations." This means nothing less than that the U.S. Declaration of Independence and Bill of Rights represent an authoritative source of international legal norms. Indeed, contemporary international law displays an even more explicit debt to these documents by identifying an "International Bill of Rights" as the cornerstone of a binding, worldwide human rights regime. Hence, any U.S. initiative to punish international crimes - especially crimes of the egregious nature committed by Saddam Hussein - would represent essential support for both international law directly and for our own founding principles of law and justice.

A poem by the Greek poet Odysseus Elytis warns, "Those who committed evil have been taken up by a black cloud." In the matter of Saddam Hussein, however, evil can be punished and prevented only by the armed forces of the United States. It is up to this country, authorized by national and international law, to undertake the necessary steps, even if these steps should include armed force and assassination. Regarding the threat from Iraq, there is no "black cloud" upon which we can depend.

=============

Louis Rene Beres is a Professor of International Law, Department of Political Science at Purdue University. E MAIL: beres@polsci.purdue.edu



 HOME  Maccabean  comments