บทความต่อไปนี้ ผมไม่ได้เห็นด้วยกับข้อสรุป แต่เห็นว่าสนใจในที่มาของ War Crime Tribunal ซึ่งได้กล่าวถึงหลักการและเหตุผลกลไกที่มาของมัน บางส่วนที่เป็นตัวหนาเป็นบทกฏหมายที่เรากำลังจะได้ยินในเรื่องนี้ มิได้หมายความว่าผมเห็นว่าถูกต้องตามกฏหมายแต่อย่างใด (เพระไม่ใช่ expert เรื่องกฏหมาย)
The next challenge is how to bring about a much deserved execution
By John Keegan, Defence Editor
(Filed: 15/12/2003) Daily Telegraph, UK
The capture of Saddam immensely simplifies the security situation in post-war Iraq. It strikes a disabling blow at his surviving supporters, who must now lose heart. Any hope they held that, by wearing down the will of the occupiers through terror and subversion, they could pave the way for his return to power is now utterly deflated. Saddam, a man who built his career on the principle of personal survival, is now in the hands of his enemies and has no hope of escape from whatever fate is decided for him.
Though the security situation is simplified, however, the constitutional situation is not. How to dispose of a fallen dictator is a problem of immense complexity for victor states. Dictators have been sovereigns, as Saddam was, de facto if not de jure. Sovereign states shrink from disposing peremptorily of sovereign rulers. The process, whichever is chosen, always threatens to set inconvenient precedents. Since 1648, when the Treaty of Westphalia created the principle that sovereign states, and therefore their sovereign heads, are both legally and morally absolute, there has been no legal basis for proceeding against such a person, however heinous the crimes he is known to have committed.
A fallen ruler is therefore an acute legal embarrassment, as first became apparent with the flight of Napoleon from France in 1815. Napoleon took refuge aboard a British warship and then sought to throw himself on the mercy of the Prince Regent. The British government, horrified at the prospect of his having recourse to British law, refused to allow him to land and deported him to the distant island colony of St Helena, the contemporary equivalent of Guantanamo Bay. The legality of his exile was never tested in law, since his own country, France, refused to protect him, holding him to be a usurper, and the British were determined not to allow him to proceed in British courts. His hope of finding sanctuary in the United States was physically prevented.
A similar situation arose in 1918, when there was a strong public demand to try the dethroned Kaiser for war crimes. He had, however, taken refuge in neutral Holland, from which he could not be extradited, and thus won the right in practice to live out the rest of his life under Dutch protection.
The situation arose again in acute form towards the end of the Second World War. The crimes of Hitler and his minions were of a character that cried out to heaven for justice. At a lower level of iniquity, his allies Mussolini and the Emperor Hirohito also demanded legal punishment. The victor states, as the war drew to its close, realised that they did not have an open-and-shut case. For one thing, Hitler, Mussolini and Hirohito were all sovereign rulers, de jure as well as de facto. For another, there was no body of law under which they could be arraigned.
It was therefore a considerable relief when the Italian partisans solved the Mussolini problem by murdering him and Hitler solved, or at least simplified, the Nazi problem by committing suicide. His death in the bunker still, however, left the problem of what to do with his associates, one of whom, Admiral Doenitz, had succeeded him as German head of state. The victorious Allies, determined to bring him and the rest of the Nazi crew to justice, had therefore to create from scratch a court and a body of law that would allow due process. The outcome was the International Military Tribunal, convened at Nuremberg, and a new set of laws, founded on the idea of universal natural justice, under which they might be found guilty. So, eventually, most of them were, the worst criminals being condemned to death and executed. The difficult issue of the culpability of Doenitz, who, as Hitler"s successor, might have claimed sovereign immunity, was evaded by trying him for his criminal conduct as a military commander before he succeeded.
That still left Hirohito, whose complicity in the crimes of the Japanese generals, many of whom were tried and executed, could probably have been proved. Historical evidence brands him a guilty man. The United States, the occupying power, decided, however, that its desire to remake Japan as a democratic state would be greatly facilitated if the imperial system were left in place. For reasons of political expediency, therefore, Hirohito was spared prosecution and allowed to regain his respectability as a constitutional monarch, something he certainly was not during his years as a war leader.
None of these precedents seems likely to spare Saddam. He may, de facto, have been head of state but, by fleeing his capital and office at the outset of the last Gulf War, he effectively abandoned whatever constitutional status he enjoyed. The power vacuum he left has been filled by the creation of the Iraqi Governing Council, which, very conveniently last week, announced the establishment of a tribunal empowered to try any Iraqi citizen - and that Saddam unquestionably is - for crimes under domestic law. Prima facie, Saddam has to answer for many crimes, including murders he has himself committed, large-scale episodes of murder and torture of his fellow citizens, and organised extermination of minorities, particularly Kurds and Marsh Arabs, inside his own country.
The Prime Minister has announced that the Iraqis themselves would deal with Saddam. No doubt they will, but, until the tribunal sits and reaches its verdict, the coalition still bears a responsibility. Saddam will have to be held in captivity, interrogated and prepared for trial. The Americans may wish to remove him, perhaps to an American warship, for questioning. He is a human repository of much military intelligence, which they need to bring guerrilla activity in Iraq to an end. They will also wish to question him about his relationship with al-Qa"eda and his sponsorship of international terrorism in general. They will particularly seek to extract from him whatever he is prepared to admit about his development of weapons of mass destruction.
The opportunity for the anti-American lobby remains large. It will come to a head at the close of his trial. At present there is no death penalty in Iraq, but it seems possible that the Iraqi Governing Council will introduce one and Washington will undoubtedly wish to see Saddam dead. As he has brought death to so many innocents, it is a fate he unquestionably deserves.
Posted by : Phoenix , Date : 2003-12-15 , Time : 17:38:38 , From IP : 172.29.3.212
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