Issue #15: Should Saddam Hussein be Prosecuted for the Crime of Aggression?

YES: by William Schabas

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 225 (2006).

Back in 1990, US President George Bush and UK Prime Minister Margaret Thatcher spoke of bringing Hussein to an international court for the illegal invasion of Kuwait. The idea later gained some purchase within the EU, before fading. Accounts of the birth of the International Criminal Tribunal for the former Yugoslavia refer to these aborted proposals to try Hussein for aggression as evidence of the impending revival of the concept of international prosecution.

But in 2003, when lawyers for the US and the UK were setting up the Iraqi Special Tribunal, Bush and Thatcher’s idea of prosecuting Hussein for aggression had disappeared from the radar screen. Some commentators have suggested that because aggression has not yet been defined for the purposes of the Rome Statute of the International Criminal Court, that it is not punishable under international law.
The crime of aggression (or ‘crimes against peace’) was punishable at Nuremberg, where it was defined as ‘planning, preparation, initiation or waging of a war of aggression… or participation in a common plan or conspiracy for the accomplishment’ of such a war. The International Military Tribunal responded to the charge that this was retroactive criminalization by saying that aggression had been an international crime as a matter of customary international law prior to 1939. Famously, the judges said it was the ‘supreme international crime’.

If it was customary law in 1939 and 1946, has anything changed? Before joining the US invasion, British Prime Minister Blair obtained a legal opinion from his Attorney-General, Lord Goldsmith. It warned Blair that although the possibility was ‘remote’, there was an arguable case for prosecution for the crime of aggression. ‘Aggression is a crime under customary international law which automatically forms part of domestic law’, noted Lord Goldsmith in his 7 March 2003 opinion.

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.

It is all so reminiscent of Nuremberg, when Admiral Dönitz was acquitted of illegal submarine warfare because he had produced an affidavit from US Admiral Nimitz saying he had done the same thing. Or when the Soviet massacre of Polish officers at Katyn was ignored in the final judgment. It doesn’t do the credibility of international or internationalised justice any good to have such inconsistencies, and such double standards.

Posted @ 2:46 PM | Experts Debate the Issues: The Dujail Trial