Donald from Crescat responds to my post on an Iraqi tribunal trying Saddam Hussein. To answer his question, “Did these norms indeed exist at the time of Iraq's invasion of Kuwait?” Yes, absolutely and unequivocally what Saddam did in invading Kuwait violated then existing and presently existing norms of international law. The contentious question is whether an Iraqi tribunal has the authority to try Saddam for something that unquestionably violated international law. This is a tough question to answer because this is not necessarily a question of international law but of domestic Iraqi law. Thus, one really must be familiar with the nuts and bolts of Iraqi domestic law to give a sure answer (I'm not).
Reiterating what I wrote before, we can break this down into two questions. One is, at the time of the attack, would Iraqi law allow for the trying of a leader who violated international law in the misuse of the military? Even if the answer is no—I don’t think that this should bar a present court from trying Hussein because that system is 1) no longer in place, and 2) was an utterly corrupt and despotic regime. The second question would be, under present Iraqi law—under the new regime—is there authority for trying a leader for misusing the military in a way that violated international law?
To make an analogy to the Nuremburg trials, what if a domestic German tribunal—now under democratic occupation—got the first crack at the Nazis immediately after the War? Well they couldn’t argue that what Hitler did violated German law as it existed at the time, because the Holocaust was legal under Nazi Germany law. Would a reconstituted Germany, with a new set of “democratic” laws nonetheless have the authority to try the Nazis for violating International Law in its misuse of the German military?
The interesting thing about the actual Nuremberg trials was that they truly did raise an expost facto issue that Saddam’s trial doesn’t. Saddam’s unprovoked armed attack of Kuwait clearly violated international law—violated the UN Charter to which Iraq was a signatory, and such unprovoked attacks also have been long recognized to violate customary international law. As far as I know, Germany, at the time of the Holocaust had no treaty obligation promising not to commit genocide within its borders, or occupied territory. And when questioned as to why they did what they did—the Nazi response was of course, “we were just following the law, just following orders.”
So the theory was, the Nazis violated Crimes Against Humanity—which fall into the class of norms that are so fundamental that they are applicable everywhere and that no nation or individual, etc. may violate regardless of what the prevailing positive law says. And the legal basis for Crimes Against Humanity is Natural Law/Customary International law. Natural law is of course, ascertainable by Man’s Reason. Yes, it was Reason alone that provided the basis for at least some of what was prosecuted in the Nuremberg trials. What was controversial at the time of the prosecution was that even though we could, through the exercise of our reason, determine that genocide was a crime against humanity, at the time of Nuremberg, it had not been long recognized as such—the rule had not yet fully crystallized in the minds of the international community. Nuremberg was the first time the International community formally recognized that Genocide violated customary international law. Subsequent to Nuremberg, precedent exists. And also many widely ratified anti-genocide treaties have since emerged. But the prosecution of the Nazis, at least for some of their offenses, occurred before the positive law emerged for such offenses (and the prosecutors were mindful of this potential expost facto defense and attempt to tie as much Nazi conduct into existing positive law that prohibited War Crimes—which are distinguishable from Crimes Against Humanity, even though there is a big overlap).
On a different note—I’m not sure if this assertion by Donald is correct:
Do we want to encourage the Iraqi government to create precedent for its new nation by which the judiciary is able to second-guess decisions of an executive through the imposition of criminal sanctions? We'd never stand for such principles in our country; why impose them on nation struggling to bring about a constitutional order?
Okay, let’s put America in Iraq’s then position. Let’s say a Rogue US President gets into power and invades Canada for no good reason and then does horrible things to the innocent Canadian population. After this President is Impeached, I’d say that yes, our courts could try him for such conduct that violates international law. Congress has the Constitutional power to “to define…Offenses against the Law of Nations.” And—again, now we venture away from International Law and into domestic “separation of powers law,”—impeachment is not the only remedy that we have against Rogue Presidents. Case in point, after Nixon resigned, there was talk of prosecuting him for crimes that he committed as he acted in his capacity as President—then Ford pardoned him.