Saddam Hussein arrested

[GhengisFarbâ„¢]

Originally posted by Ned
Which is why we have to form an international tribunal to try violations of international law such as waging aggressive war, etc.

That is utterly stupid, and I have always viewed it that way even when it was used against the Nazis.

What kind of war are you supposed to wage? Pacifistic War? Lazy War? Sleepy War? All war is aggressive.

War crimes for mass murder. Yes.

War crimes for waging a racial war. Questionable (personally, yes I could see this).

War crimes for waging war for political gain/economic benifit. No.

[GhengisFarbâ„¢]

Originally posted by Zylka
BUT HOW CAN YOU HIDE/DESTROY WHOLE BOXCAR LOADS OF CHEMICALS??! IT'S JUST IMPOSSIBLE

Where do you think Twinkies cakes come from?

[Ned]

Originally posted by Imran Siddiqui

Congress has no power to take any jurisdiction away from the Supreme Court.

Congress most definetly has the power to take away jurisdiction from federal courts (aside from that specifically given in the Constitution) and has done so on many occasions (often times in the middle of an appeal... leading to the appelate court .. sometimes the SCOTUS.. to dismiss because of lack of jurisdiction due to the change in the law).

Why did you change the subject of my statement to anwser a different question?

The issue is whether US courts may entertain a criminal prosecution of war crimes and crimes against humanity?

Yes. If you don't believe me look at Art. 1, Sec. 8, Cl. 4 of the Constitution: Congress has the power "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations". And Congress has done so with the Alien Tort Claims Act (ATCA).

But, Imran, the question is do US lower courts have subject matter jurisdiction to hear criminal trials for violation of international treaties on the laws of war, etc., without an act of Congress. Cleary the cited article say NO! Congress has the POWER to pass such a statute. International Criminal Law is does not grant Federal courts subject matter jurisdiction over criminal violations thereof ipso facto. Congress must grant them that authority.

the Supremes decided it had no jurisdiction to review the prosecutions of the Japanese war crimes tribunal even though many of the crimes were commited against Americans and we were party to the trial.

Because another tribunal had been set up, which was declared not subject to SCOTUS review. Under the Act of State Doctrine, US courts generally do not sit in review of other country's courts, so why would the SCOTUS decide to sit in review of an international tribunal?

I will check the case out for more. However, if the war crimes tribunal was set up by Congress, the Supremes could have reviewed it. I am not sure just how the Japanese tribunal was set up.

International criminal law is not necessarily law in the United States because in the US treaties are not self executing. Thus, any trial in US courts would not be a trial under international law, but a trial under US statutory law.

Who says treaties aren't self-executing under US law? Some are, some aren't.

And customary international law is considered to be federal common law (the few federal common law left after Erie).

AFAIK, no international treaty is self-executing in the US. International common law is recognized as authority in our courts, expecially the Admiralty courts.

[Ned]

Originally posted by aaglo


Does the killing of your own people in your own country as a war crime? So in that light this Iraq thing is different from what you are referring to (either that, or I didn't understand your post )

In the US, killing people is murder, etc. Trials would have to be based on the law of murder, etc.

Under international law, waging aggressive war, using WMD, etc., are war crimes. These crimes are not normal justiciable under the laws of any state - with one execption - an that appears to be Belgium.

In order to prosecute War Crimes, the United Nations must convene a tribunal to prosecute them. The Nuremberg trials were set up by the United Nations, which at the time, consisted of the Four Powers and a few other allies.

[Lord Merciless]

When Iranians stormed the US embassy in 1979, it was de facto a declaration of war. Supporting Saddam in 1980 against Iran made perfect sense.

[Dinner]

Originally posted by lord of the mark
The Govt of Yugoslavia was NOT a member of NATO. As far as it was concerned, NATO was just a collection nation states. Governed soley be realpolitick. No different from the coalition of the willing acting in Iraq.

Or, if you really get down to it, the UN. Let's face it the UN is just a collection of states just like NATO or the coalition of the willing.

[Ned]

Well, Kofi Annon is calling for an international tribunal. Iran is preparing a complaint that will file in any such international tribunal. Iran is saying that arms suppliers to Iraq are equally guilty -- leveling its gaze directly at the United States.

This could get interesting.

http://www.cnn.com/2003/WORLD/meast/12/15/sprj.nirq.saddam.future/index.html

While nearly every world leader agrees the trial should take place in Iraq, some have called for a tribunal of international judges rather than the Iraqi-only tribunal.

Organizations such as Human Rights Watch called for international participation in a tribunal, arguing that justice against Saddam not be seen as vengeance.

Iran, meanwhile, said it was preparing a criminal complaint against Saddam to present to an international tribunal. An Iranian government spokesman added that countries that sold Saddam weapons must also face justice -- a reference to alleged U.S. military supplies during the 1980-88 Iran-Iraq war.

Britain and Australia -- both members of the U.S.-led coalition that toppled Saddam -- maintained that it was for the Iraqis to determine his fate.

"I want him tried in circumstances where he will receive the justice he denied the other people," Australian Prime Minister John Howard said.

Asked in a television interview if he would support the death penalty, he said: "If it were imposed, absolutely."

British Prime Minister Tony Blair said on Monday he was confident the Iraqi people would be able to mount a fair trial.

"Of course we must make sure that there is a proper and independent and fair process. But I am quite sure that the Iraqis have the capability of doing that," Blair told parliament.

[Lawrence of Arabia]

Did you guys see that interview with Donald Rumpitypumpityfeld? The reporter asked "What is the difference between being a prisoner of war, and being accorded the rights of the prisoner of war?" our Sec of Def answered "We havn't determined that yet."

[Ned]

Here is an interesting memo on the issue written last year. It appears that Clinton was working on an indictment, but held off indicting Saddam because he was still trying to get Saddam's cooperation.

http://apolyton.net/forums/showthread.php?s=&postid=2562799&t=9906#post2562799

[Kramerman]

Originally posted by MrFun
I wonder how we are going to face the fact that United States and Saddam Huissen used to be buddies??

why do people ALWAYS make such a big deal of this? Friends and enemies change with time and circumstance, duh - plain and simple. GET OVER IT

(and im not yelling at you Mr.Fun, im just yelling in general )

[Dinner]

CNN & Fox are both reporting that Saddam will be classified as a POW. That's exactly as it should be.

[General Ludd]

Originally posted by Lawrence of Arabia
Did you guys see that interview with Donald Rumpitypumpityfeld? The reporter asked "What is the difference between being a prisoner of war, and being accorded the rights of the prisoner of war?" our Sec of Def answered "We havn't determined that yet."

[Ned]

Here is a case from WWII that lays out the authority of military commissions to try defendants under the Law of War - a statute that references international treaties. In this case, the Supremes state they have limited jurisdiction to review such cases under habeas corpus. One of the things they can review is whether the charge is adequate. That issue was the major problem in this case where the majority found that high level commander could be charged with the war crimes of his subordinates even without showing his knowledge of them or the ability to control his troops. A dissent by Justice Murhy says command was almost impossible in this case due to the success of MacArthur's assault.

I understand the Milosovic trial is proceeding larglely on this "responsiblity" theory.

Below is part of Murphy's dissent is in this case. It is a good read.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=327&invol=1

Mr. Justice MURPHY, dissenting.

The significance of the issue facing the Court today cannot be overemphasized. An American military commission has been established to try a fallen military commander of a conquered nation for an alleged war crime. The authority for such action grows out of the exercise of the power conferred upon Congress by Article I, 8, Cl. 10 of the Constitution to 'define and punish ... Offenses against the Law of Nations ....' The grave issue raised by this case is whether a military commission so established and so authorized may disregard the procedural rights of an accused person as guaranteed by the Constitution, especially by the due process clause of the Fifth Amendment.

The answer is plain. The Fifth Amendment guarantee of due process of law applies to 'any person' who is accused of a crime by the Federal Government or any of its agencies. No exception is made as to those who are accused of war crimes or as to those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is. The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs. They rise above any status of belligerency or outlawry. They survive any popular passion or frenzy of the moment. No court or legislature or executive, not even the mightiest [327 U.S. 1, 27] army in the world, can ever destroy them. Such is the universal and indestructible nature of the rights which the due process clause of the Fifth Amendment recognizes and protects when life or liberty is threatened by virtue of the authority of the United States.

...

The failure of the military commission to obey the dictates of the due process requirements of the Fifth Amendment is apparent in this case. The petitioner was the commander of an army totally destroyed by the superior power of this nation. While under heavy and destructive attack by our forces, his troops committed many brutal atrocities and other high crimes. Hostilities ceased and he voluntarily surrendered. At that point he was entitled, as an individual protected by the due process clause of the Fifth amendment, to be treated fairly and justly according to the accepted rules of law and procedure. He was also entitled to a fair trial as to any alleged crimes and to be free from charges of legally unrecognized crimes that would serve only to permit his accusers to satisfy their desires for revenge.

A military commission was appointed to try the petitioner for an alleged war crime. The trial was ordered to be held in territory over which the United States has complete sovereignty. No miilitary necessity or other emergency demanded the suspension of the safeguards of due process. Yet petitioner was rushed to trial under an improper charge, given insufficient time to prepare an adequate defense, deprived of the benefits of some of the most [327 U.S. 1, 28] elementary rules of evidence and summarily sentenced to be hanged. In all this needless and unseemly haste there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the acts of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge. This indictment in effect permitted the military commission to make the crime whatever it willed, dependent upon its biased view as to petitioner's duties and his disregard thereof, a practice reminiscent of that pursued in certain less respected nations in recent years.

...
That there were brutal atrocities inflicted upon the helpless Filipino people, to whom tyranny is no stranger, by Japanese armed forces under the petitioner's command is undeniable. Starvation, execution or massacre without trial, torture, rape, murder and wanton destruction of property were foremost among the outright violations of the laws of war and of the conscience of a civilized world. That just punishment should be meted out to all those responsible for criminal acts of this nature is also beyond dispute. But these factors do not answer the problem in this case. They do not justify the abandonment of our devotion to justice in dealing with a fallen enemy commander. To conclude otherwise is to admit that the enemy has lost the battle but has destroyed our ideals.

War breeds atrocities. From the earliest conflicts of recorded history to the global struggles of modern times inhumanities, lust and pillage have been the in vitable by-products of man's resort to force and arms. Unfortunately, such despicable acts have a dangerous tendency to call forth primitive impulses of vengeance and retaliation among the victimized peoples. The satisfaction of such impulses in turn breeds resentment and fresh tension. Thus does the spiral of cruelty and hatred grow.

If we are ever to develop an orderly international community based upon a recognition of human dignity it is of the utmost importance that the necessary punishment of those guilty of atrocities be as free as possible from the ugly stigma of revenge and vindictiveness. Justice must be tempered by compassion rather than by vengeance. In this, the first case involving this momentous problem ever to reach this Court, our responsibility is both lofty and difficult. We must insist, within the confines of our proper [327 U.S. 1, 30] jurisdiction, that the highest standards of justice be applied in this trial of an enemy commander conducted under the authority of the United States. Otherwise stark retribution will be free to masquerade in a cloak of false legalism. And the hatred and cynicism engendered by that retribution will supplant the great ideals to which this nation is dedicated.

This Court fortunately has taken the first and most important step toward insuring the supremacy of law and justice in the treatment of an enemy belligerent accused of violating the laws of war. Jurisdiction properly has been asserted to inquire 'into the cause of restraint of liberty' of such a person. 28 U.S.C. 452, 28 U.S.C.A. 452. Thus the obnoxious doctrine asserted by the Government in this case, to the effect that restraints of liberty resulting from military trials of war criminals are political matters completely outside the arena of judicial review, has been rejected fully and unquestionably. This does not mean, of course, that the foreign affairs and policies of the nation are proper subjects of judicial inquiry. But when the liberty of any person is restrained by reason of the authority of the United States the writ of habeas corpus is available to test the legality of that restraint, even though direct court review of the restraint is prohibited. The conclusive presumption must be made, in this country at least, that illegal restraints are unauthorized and unjustified by any foreign policy of the Government and that commonly accepted juridical standards are to be recognized and enforced. On that basis judicial inquiry into these matters may proceed within its proper sphere.

The determination of the extent of review of war trials calls for judicial statesmanship of the highest order. The ultimate nature and scope of the writ of habeas corpus are within the discretion of the judiciary unless validly circumscribed by Congress. Here we are confronted with a use of the writ under circumstances novel in the history of the [327 U.S. 1, 31] Court. For my own part, I do not feel that we should be confined by the traditional lines of review drawn in connection with the use of the writ by ordinary criminals who have direct access to the judiciary in the first instance. Those held by the military lack any such access; consequently the judicial review available by habeas corpus must be wider than usual in order that proper standards of justice may be enforceable.

But for the purposes of this case I accept the scope of review recognized by the Court at this time. As I understand it, the following issues in connection with war criminal trials are reviewable through the use of the writ of habeas corpus: (1) Whether the military commission was lawfully created and had authority to try and to convict the accused of a war crime; (2) whether the charge against the accused stated a violation of the laws of war; (3) whether the commission, in admitting certain evidence, violated any law or military command defining the commission's authority in that respect; and (4) whether the commission lacked jurisdiction because of a failure to give advance notice to the protecting powe as required by treaty or convention.

The Court, in my judgment, demonstrates conclusively that the military commission was lawfully created in this instance and that petitioner could not object to its power to try him for a recognized war crime. Without pausing here to discuss the third and fourth issues, however, I find it impossible to agree that the charge against the petitioner stated a recognized violation of the laws of war.

It is important, in the first place, to appreciate the background of events preceding this trial. From October 9, 1944, to September 2, 1945, the petitioner was the Commanding General of the 14th Army Group of the Imperial Japanese Army, with headquarters in the Philippines. The reconquest of the Philippines by the armed forces of the United States began approximately at the time when [327 U.S. 1, 32] the petitioner assumed this command. Combined with a great and decisive sea battle, an invasion was made on the island of Leyte on October 20, 1944. 'In the six days of the great naval action the Japanese position in the Philippines had become extremely critical. Most of the serviceable elements of the Japanese Navy had become committed to the battle with disastrous results. The strike had miscarried, and General MacArthur's land wedge was firmly implanted in the vulnerable flank of the enemy .... There were 260,000 Japanese troops scattered over the Philippines but most of them might as well have been on the other side of the world so far as the enemy's ability to shift them to meet the American thrusts was concerned. If General MacArthur succeeded in establishing himself in the Visayas where he could stage, exploit, and spread under cover of overwhelming naval and air superiority, nothing could prevent him from overrunning the Philippines.' Biennial Report of the Chief of Staff of the United States Army, July 1, 1943, to June 30, 1945, to the Secretary of War, p. 74.

By the end of 1944 the island of Leyte was largely in American hands. And on January 9, 1945, the island of Luzon was invaded. 'Yama****a's inability to cope with General MacArthur's swift moves, his desired reaction to the deception measures, the guerrillas, and General Kenney's aircraft combined to place the Japanese in an impossible situation. The enemy was forced into a piecemeal commitment of his troops.' Ibib, p. 78. It was at this time and place that most of the alleged atrocities took place. Organized resistance around Manila ceased on February 23. Repeated land and air assaults pulverized the enemy and within a few months there was little left of petitioner's command except a few remnants which had gathered for a last stand among the precipitous mountains.

As the military commission here noted, 'The Defense established the difficulties faced by the Accused with re- [327 U.S. 1, 33] spect not only to the swift and overpowering advance of American forces, but also to the errors of his predecessors, weaknesses in organization, equipment, supply with especial reference to food and gasoline, training, communication, discipline and morale of his troops. It was alleged that the sudden assignment of Naval and Air Forces to his tactical command presented almost insurmountable difficulties. This situation was followed, the Defense contended, by failure to obey his orders to withdraw troops from Manila, and the subsequent massacre of unarmed civilians, particularly by Naval forces. Prior to the Luzon Campaign, Naval forces had reported to a separate ministry in the Japanese Government and Naval Commanders may not have been receptive or experienced in this instance with respect to a joint land operation under a single commander who was designated from the Army Service.'

The day of final reckoning for the enemy arrived in August, 1945. On September 3, the petitioner surrendered to the United States Army at Baguio, Luzon. He immediately became a prisoner of war and was interned in prison in conformity with the rules of international law. On September 25, approximately three weeks after rrendering, he was served with the charge in issue in this case. Upon service of the charge he was removed from the status of a prisoner of war and placed in confinement as an accused war criminal. Arraignment followed on October 8 before a military commission specially appointed for the case. Petitioner pleaded not guilty. He was also served on that day with a bill of particulars alleging 64 crimes by troops under his command. A supplemental bill alleging 59 more crimes by his troops was filed on October 29, the same day that the trial began. No continuance was allowed for preparation of a defense as to the supplemental bill. The trial continued uninterrupted until December 5, 1945. On December 7 petitioner was found guilty as charged and was sentenced to be hanged. [327 U.S. 1, 34] The petitioner was accused of having 'unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes.' The bills of particular further alleged that specific acts of atrocity were committed by 'members of the armed forces of Japan under the command of the accused.' Nowhere was it alleged that the petitioner personally committed any of the atrocities, or that he ordered their commission, or that he had any knowledge of the commission thereof by members of his command.

The findings of the military commission bear out this absence of any direct personal charge against the petitioner. The commission merely found that atrocities and other high crimes 'have been committed by members of the Japanese armed forces under your command ... that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and noncommissioned officers ... that during the period in question you failed to provide effective control of your troops as was required by the circumstances.'

In other words, read against the background of military events in the Philippines subsequent to October 9, 1944, these charges amount to this: 'We, the victorious American forces, have done everything possible to destroy and disorganize your lines of communication, your effective control of your personnel, your ability to wage war. In those respects we have succeeded. We have defeated and crushed your forces. And now we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively beseiging and eliminating your forces and blocking your ability to maintain effective control. Many terrible atrocities were committed by your disorganized troops. Because these atrocities were so widespread we will not bother to charge or prove that you committed, ordered or [327 U.S. 1, 35] condoned any of them. We will assume that they must have resulted from your inefficiency and negligence as a commander. In short, we charge you with the crime of inefficiency in controlling your troops. We will judge the discharge of your duties by the disorganization which we ourselves created in large part. Our standards of judgment are whatever we wish to make them.'

Nothing in all history or in international law, at least as far as I am aware, justifies such a charge against a fallen commander of a defeated force. To use the very ineffciency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies bears no resemblance to justice or to military reality.

International law makes no attempt to define the duties of a commander of an army under constant and overwhelming assault; nor does it impose liability under such circumstances for failure to meet the ordinary responsibilities of command. The omission is understandable. Duties, as well as ability to control troops, vary according to the nature and intensity of the particular battle. To find an unlawful deviation from duty under battle conditions requires difficult and speculative calculations. Such calculations become highly untrustworthy when they are made by the victor in relation to the actions of a vanquished commander. Objective and realistic norms of conduct are then extremely unlikely to be used in forming a judgment as to deviations from duty. The probability that vengeance will form the major part of the victor's judgment is an unfortunate but inescapable fact. So great is that probability that international law refuses to recognize such a judgment as a basis for a war crime, however fair the judgment may be in a particular instance. It is this consideration that undermines the charge against the petitioner in this case. The indictment permits, indeed compels, the military commission of a victorious nation to [327 U.S. 1, 36] sit in judgment upon the military strategy and actions of the defeated enemy and to use its conclusions to determine the criminal liability of an enemy commander. Life and liberty are made to depend upon the biased will of the victor rather than upon objective standards of conduct.

[Ned]

Originally posted by Kramerman


why do people ALWAYS make such a big deal of this? Friends and enemies change with time and circumstance, duh - plain and simple. GET OVER IT

(and im not yelling at you Mr.Fun, im just yelling in general )

This is not a throwaway issue. The Iranians want to bring a charge against US (Rumsfeld?) in a proper forum. If we do not provide an international forum for the Iranian charge, you can just hear the Bush critics yell

HIPOCRISY!

[Bosh]

CNN & Fox are both reporting that Saddam will be classified as a POW. That's exactly as it should be.

How can you have a POW when the war's over