December 17, 2003	Wednesday	Shawwal 22, 1424

LONDON: Under a different kind of empire in an earlier age, there is little doubt what would have happened. The captured Saddam would have been paraded in chains past cheering crowds along Pennsylvania Avenue to bow the knee to the conquering president. The whole thing would have been straight out of Aida or Tamburlaine the Great. Even today, there seems to be a significant minority of US opinion that would probably get off quite happily on such a celebration of raw American power.

An empire based on laws and freedom, though, cannot go there. But that does not mean that the question of what to do with Saddam has an easy answer. Riding in triumph is not the only option that is placed off limits by political considerations. Even if he wanted to, George Bush cannot display the pragmatic magnanimity to Saddam that Grant and Lincoln offered to Lee and Davis after Appomattox. Nor can he look the other way and replicate the ad hoc national self-interest that Macarthur applied to Hirohito in 1945.

The treatment of captive rulers is never easy. This has always been an issue that can divide allies who otherwise agree about almost everything else. As London exploded into victory celebrations after the signing of the Armistice on Nov 11, 1918, David Lloyd George and Winston Churchill sat down to dinner in 10 Downing Street to discuss the aftermath of war. The talk centred on what they should do about the Kaiser. Churchill counselled caution. Lloyd George was for shooting him as soon as possible. The Kaiser abdicated but survived.

Today, we inhabit the post-Nuremberg tribunal age, buttressed by the spread of international and human rights law, and spiced by the revival of moral interventionism. Yet even so, Tony Blair and his advisers are no clearer about Saddam’s fate than his predecessors were about the Kaiser’s. As US troops powered towards Baghdad this spring, Blair was asked whether his preference was for Saddam to be taken dead or alive. Not sure, replied Blair, what do you think? There was no agreement, but nothing was ruled out. Eight months later, it is unlikely that they had resolved the issue before the news came through from Tikrit.

The only reliable rule is that enemy leaders who are dead as well as overthrown are generally a lot less trouble to those who have ousted them than the living. The corpses of Hitler, Mussolini, Allende and Ceausescu all prove the point, in their different ways. With the living, on the other hand, politics will always loom as large as power. The dispute about the Kaiser was not a one-off. Remember Charles I after his capture in 1647, or the problems that Napoleon repeatedly caused his opponents in defeat. Or the difficulties that the overthrown Tsar presented to the Bolsheviks.

These issues are never either pleasant or simple. Even after thousands of years there are no absolute rules. The Bush administration has held hundreds of prisoners in Guantanamo Bay for two years while utterly ignoring international law and opinion. On Monday, on the other hand, Bush was quick to promise Saddam a trial that would stand international scrutiny. A new approach? Or merely the different exigencies of a changed time? The latter is more credible. Treason, the wily Talleyrand observed, is all a matter of dates. He could have added that often in war and politics it is not what happens that does most to shape events, but also when it happens and how.

The capture of Saddam Hussein is a classic case in point. The tyrant’s detention is an unreservedly welcome event. It removes the threat of a restoration that, however distant, had to be obliterated if Iraqi freedom is ever to mean anything. It heralds the possibility of a form of closure for the generations of Iraqis who suffered at the hands of his regime. It takes the occupation of Iraq over a significant watershed that had to be crossed if a credible transfer of authority is to be carried through. It makes the talk of a new Iraq based on freedom and democracy seem more plausible, if still some way off. Yet these are all big picture conclusions. They do not offer any guidance on the more immediate question of what should be done with Saddam. The former Iraqi leader has been in American hands barely for 72 hours. Yet already some extremely awkward consequential issues begin to loom larger than they might have done had he simply been captured and executed in the heat of the invasion.

Is Saddam to be tried by the international community, whatever exactly that means in this context, or by Iraqis? In either eventuality, under what code and jurisdiction would such a trial take place? What punishment — and what rights of appeal — await him if and when he is convicted? Donald Rumsfeld says Saddam is to be treated ad as a prisoner of war; but prisoners of war are entitled to significant rights, including the right not to be demeaned in public and the right not to answer detailed questions.

If the dictator had been run to earth in April, in the immediate aftermath of the Iraq invasion, how different it might have been. Rough justice would have been easier to carry out and might have had potent effects. The invasion would have been more conclusive, probably more tolerable and perhaps even more popular for longer among liberated Iraqis. Sustained resistance would have been harder, and the defects of the Pentagon’s post-invasion planning less cruelly exposed. Conceivably there might even have been some closure on weapons of mass destruction, while a significant number of people from many lands who have since perished might still be alive today, not least Dr David Kelly.—Dawn/The Guardian News Service.