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Fallen rulers a legal embarrassment

By John Keegan in London
December 16, 2003

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How to dispose of a fallen dictator is a problem of immense complexity for victor states. 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 when 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.

A similar situation arose towards the end of World War II. The allies, as the war drew to its close, realised they did not have an open-and-shut case against Hitler, Mussolini and Hirohito as they were all sovereign rulers, de jure as well as de facto.

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. Hitler's suicide and Mussolini's death at the hands of partisans simplified the problem, but there was still the problem of Emperor Hirohito.

The United States, the occupying power, decided that its desire to remake Japan as a democratic state would be greatly facilitated if the imperial system were left in place.

None of these precedents seems likely to spare Saddam. The Iraqi Governing Council last week announced the establishment of a tribunal empowered to try any Iraqi citizen for crimes under domestic law. Prima facie, Saddam has to answer for many crimes, including large-scale episodes of murder and torture of his fellow citizens.

TheTelegraph, London


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