The Law of Empire?

The trial of Saddam Hussein and his former associates by the Iraqi government is another instance of the Bush administration's self-serving distaste for the rule of law.

AS the election process was on in Iraq, much of the debate in the United States media and among the political class in Washington focussed on the theoretical, even philosophical, question of whether liberal democracy can be an effective antidote to terrorism, particularly the sort perpetrated by extremists in the Islamic world. In his second inaugural address, President George W. Bush chose to affiliate himself consciously with this newly minted and already fashionable creed of America's neo-conservatives.

Whatever the dubious merits of this theory, democratic forms mean little without the basic protections of the rule of law. On this question, the neo-conservative regime in Washington has consistently shown an alarming willingness to dispense with the most basic elements of the rule of law, whether domestic or international. From the illegal invasion and occupation of Iraq itself, to its brazen and unconstitutional claims about wartime authority to detain even U.S. citizens indefinitely without charge or trial, let alone access to counsel, to the carefully nuanced ambiguities about the applicability of the Geneva Conventions, culminating in the blatant disregard of the prohibition against torture in international law as well as "refoulement" and the unlawful practice of transferring prisoners to "friendly" third countries with the knowledge of probable torture during interrogations, the Bush administration has displayed a self-serving distaste for the rule of law that borders on contempt. Not surprisingly, the trial of Saddam Hussein and other former members of the Baathist regime shows little evidence of any departure from prior practice.

The concerns being raised in many quarters about the legality of these prosecutions, and the procedures and substantive law to be applied, are not just lawyerly technicalities. The extent to which these prosecutions are consonant (or not) with the basic requirements of a "fair trial" could have far-reaching consequences, both for the nascent legal system of post-war Iraq and perhaps even in terms of their precedential value as an example of contemporary "state practice" in international law. The legitimacy or lack thereof that is accorded to the trials by the international community may well prove to be a litmus test for whether or not future governments will be able to bend the rules of international law to suit their whims, permitting political expediency to trump fundamental, substantive and procedural requirements of the rule of law and enabling victorious states to conduct "show trials" of deposed leaders and officials of the defeated regime in the aftermath of conflicts. To be sure, international tribunals have often been accused, even in the case of Nuremberg and Tokyo, of dispensing "victor's justice" rather than justice under the law. Never before has the accusation enjoyed the validity that it does in this instance.

Most significantly, the judicial authority before which these trials will be conducted is of uncertain legality itself. For one, it will not be an international tribunal authorised by an appropriate resolution of the United Nations or the Security Council. In fact, the U.N. has publicly refused to be associated or affiliated in any way with the prosecutions that will be carried out in Iraq. For another, that judicial authority will most assuredly not be an ordinary, Iraqi court applying domestic, Iraqi law. Instead, as its very name suggests, the "Iraqi Special Tribunal" will be an entirely unusual and hybrid creature with both Iraqi and non-Iraqi judges at the trial and appellate levels, adjudicating not only crimes under international law but also offences taken from domestic, Iraqi legislation and applying penalties taken entirely from Iraqi law to all of these offences. This sui generis aspect of the tribunal renders it facially invalid from the viewpoint of international law, robbing any judgment or verdict that it issues of the force of law.

The statute of the tribunal was enacted directly by the Iraqi Governing Council on December 10, 2003. The then-U.S. Administrator for Iraq, Paul Bremer, temporarily ceded legislative authority to the Council for that purpose. This elaborate charade was necessitated by the fact that the formation of a tribunal of this kind is itself a violation of applicable international law governing military occupation, particularly in the absence of any mandate or authorisation from the U.N. Despite its reservations about the applicability of the Geneva Conventions concerning prisoners of war, the U.S. government has consistently taken the position that Iraq is legally under "belligerent occupation" as that term is defined in the Hague and Geneva Conventions concerning the law of armed conflict and occupation. Under the provisions of the Hague Convention of 1907, a territory is considered occupied "when it is actually placed under the authority of the hostile army" and "[t]he occupation extends only to the territory where such authority has been established and can be exercised."

Article 43 of the Hague Convention mandates that an "occupant" must ensure public order "while respecting, unless absolutely prevented, the laws in force in the country." The Geneva Conventions (IV) of 1949, prohibit the modification of the domestic laws or legal institutions of the occupied power. Article 64 of the Geneva Conventions states unambiguously that, subject to very narrow exceptions, "[t]he penal laws of the occupied territory shall remain in force" and that "the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws". Although an occupying power may have limited authority to enact certain penal provisions limited to ensure its own security and that of its officials, Articles 65 and 67 provide, in pertinent part, that an occupier's "courts shall apply only those provisions of law which were applicable prior to the offence" and the "effect of these penal provisions" enacted into law by the occupier "shall not be retroactive".

The repeated pledges made by Washington after the fall of Baghdad about the prompt restoration of Iraqi sovereignty reflect these legal principles As far as international law is concerned, however, not even a 100 per cent sovereignty-back guarantee authorises an occupier to modify or otherwise interfere with the domestic legal system of a country under occupation. Hence, the temporary cession of legislative authority to the Iraqi Governing Council to enact the statute constituting the tribunal for trying former regime officials. The legality of this move is questionable as far as international law is concerned but defence counsel may have difficulty in finding an appropriate forum to hear challenges to the validity of the tribunal. The special-ness of the tribunal is a potentially fatal defect inherent in its very inception. The International Covenant on Civil & Political Rights (ICCPR) codifies in treaty form the elementary requirement that offenders be tried before a court established by law:

"In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law" (Article 15).

Putting aside all the not insignificant questions of competence, independence and impartiality, the question that will first have to be resolved is about the legal source of the tribunal's purported authority to try the accused in the first place.

If one assumes that the authority of the tribunal statute derives from Iraqi law, as the temporary delegation of authority suggests, then it seems virtually indisputable that Iraq's ordinary domestic courts would have jurisdiction to try the accused, not the tribunal, pursuant to Article 64 of the Geneva Conventions. Yet, the statute was presumably enacted to encompass criminal offences under international law which were either unavailable or not properly defined under Iraqi law.

By the same token, however, the tribunal cannot claim to derive any authority or legitimacy from international law in the absence of any U.N. mandate, the critical difference between the tribunal and other "mixed" tribunals such as the one established to try offences in Sierra Leone's civil conflict. The conclusion seems inescapable that the tribunal is not established by and, a fortiori, not bound by any recognised law. Its legal authority would appear to be entirely fictive, at least as far as international law is concerned.

THERE is, however, one ancient law on which the tribunal's authority could be based: what the Greek historian Thucydides called the "law of empire". Thucydides described how Mylos, the island the Athenian Greeks conquered to ensure stability for their empire's golden age, was invaded and governed according to laws wholly different from those applied to democratic Athens. The first recorded usage of the phrase "law of empire" comes from Athenian negotiators who used it 2,000 years ago to explain to the Myletians that questions of fairness or justice can only arise among equals, not between the powerful and the weak. The Roman empire did much the same thing. In the last 200 years, the British empire, too, followed this longstanding imperial tradition. The Bush administration seems to be doing likewise. As one administration source who preferred to remain unnamed, told a journalist from The New York Times magazine: "We're an empire now, and when we act, we create our own reality. And while you're studying that reality - judiciously, as you will - we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors ... and you, all of you, will be left to just study what we do."

H. Rajan Sharma is a practising attorney in New York and an expert on international law.