The capture and detention of Saddam Hussein last December brought
a sense of relief to many people, both inside and outside Iraq.
For the legitimacy of the Iraqi transition to civilian government
and for the sake of international justice, it is imperative that
Saddam and his top henchmen be put on trial in a fair, independent,
impartial, and competent tribunal. While some would like to see
Saddam and the others simply killed, that would only serve the purposes
of those insurgents who are resisting in his name. History provides
us with a superior model.
In 1945, Soviet
Premier Joseph Stalin and British Prime Minister Winston Churchill
wanted to summarily execute the Nazi leaders held in custody by
the Allies. After initially agreeing with them, President Franklin
Roosevelt insisted instead on establishing the Nuremberg Tribunal
as a way of not only revealing what had happened under the Nazi
regime, but of demonstrating to the German population how a system
of justice operates. In the words of Robert Jackson, chief U.S.
prosecutor at Nuremberg, That four great nations, flushed
with victory and stung with injury, stay the hand of vengeance and
voluntarily submit their captive enemies to the judgment of law
is one of the most significant tributes that Power has paid to Reason.
Of the various
types of trials suggested for Saddam Hussein, only one, in my estimation,
satisfies the necessary conditions for viability and legitimacy:
an Iraqi court consisting of mixed panels of Iraqi and international
judges, and a similarly mixed prosecution team. Clearly, the Iraqi
people are the most appropriate sponsors of a trial concerning crimes
committed against them by their own leaders, and Baghdad is the
appropriate venue. However, due to the relative lack of suitably
trained Iraqi judicial personnel and the understandable temptation
to use the legal process to serve retaliatory motives, it would
be best if international judges and prosecutors worked alongside
Iraqis in conducting the cases. Similar hybrid tribunals
have been created in Kosovo, East Timor, Sierra Leone, and Cambodia.
The latter may provide the best model. In those proceedings, Cambodians
outnumbered international personnel, and the war crimes court was
considered part of the municipal legal system (rather than an international
law has evolved since the time of Nuremberg to require that these
principles be followed:
Fairness: This would include the presumption of innocence,
the right to counsel (with adequate time and facilities to prepare
a defense), the right to present witnesses and to confront the prosecutions
witnesses, and the right to appeal to a higher tribunal.
Independence and impartiality: These two standards are usually
linked, though the former refers to the courts autonomy from
outside political influence, while the latter requires freedom from
personal bias on the part of the presiding judges.
Competence: Beyond appropriately trained and experienced
court personnel, this factor means that the court has the proper
jurisdiction over the defendant and over the crimes that have been
charged. (A related issue for this particular court is whether the
death penaltywhich has not been used in international law
since the 1940s and is banned in most Western countriesshould
be among the options in sentencing.)
would Saddam Hussein likely claim, assuming he is found mentally
and physically competent to stand trial? If the forensic and eyewitness
evidence is too overwhelming to deny, he might argue, as former
Serbian leader Slobodon Milosevic did at his trial in The Hague,
that the crimes were committed by underlings who disobeyed his commands.
To counter that defense, the prosecution might have to offer immunity
to some of his top lieutenants.
More than likely,
Saddam Hussein would follow Milosevics playbook and challenge
the very legitimacy of the court. That is why the manner and basis
for establishing the tribunal must be carefully thought out. But
imagine the global, local, and historical effect of a final judgment
that would uphold the rule of law and also hold him accountable
for having defiled it.
Donna Arzt is
the Bond Schoeneck & King Distinguished Professor of Law at the
College of Law and director of its Center for Global Law and Practice.
Her research interests include the Middle East peace process, religious
freedom, humanitarian intervention, and Islamic law. Her publications
Refugees Into Citizens: Palestinians and the End of the Arab-Israeli
Conflict (Council on Foreign Relations Press, 1997).
What makes a
good school? Thats what the National Institute of Education
wanted to know when they asked me to write a report for the U.S.
Congress. The short version of my answer: good teachers and a balanced
mix of students.
I mean teachers who understand the nature of their intellectual
and moral authority and exercise it well. They derive their intellectual
authority from the quality of their own training and knowledge of
the subjects they teach. Their moral authority comes not only from
teaching well, but also from the kinds of personal virtues they
exhibit: big things like honesty, fairness, good judgment, courage,
and valuing diversity, as well as more mundane tasks like grading
papers carefully and returning them on time.
At the heart
of the question is whether teachers are to blame for the poor scores
reported almost daily in the mass media. First, let us note that
until quite recently, historically speaking, we never knew or read
about school scores. Parents knew their childrens grades in
each subject and often little more. Until the mid-20th century,
less than half of American children graduated from high school.
The function of schools as sorting and selecting machines was widely
accepted. It was children who were being passed or failed, not schools.
Now all children
are expected to reach higher levels of competence and nearly all
are expected to graduate from high school. Newspapers everywhere
publish test scores of every school in local school districts. As
readers see rising numbers of poorly performing schools, they are
inclined to believe that teachersand schools of education
that train themare at fault.
What this deluge
of data often masks, however, is that we have two school systems
in America: one for winners, mostly suburban and private schools;
and another for losers, mainly composed of urban public school systems.
The average achievement scores of children in the urban systems
have grown worse (with a few exceptions) as greater concentrations
of poverty have become more common in urban areas. The terrible
truth is that the American promise of equal educational opportunity
is more myth than reality for children in urban schools. Just as
stepping on the scales more often does not ensure that you lose
weight, more frequent testing is not the remedy for children trapped
in these schools. However, I am not opposed to testing per se. In
fact, I have supported school-level assessment, hoping it would
expose the gap between urban and suburban schools and provide leverage
for adjusting the balance. I am less sanguine now about that happening
than I was a decade ago. More than 700 teachers and staff were cut
in Buffalo in the last year, and nearly 200 in Syracuse. The budget
realities in urban schools have made a mockery of the no child
left behind rhetoric.
The losing urban
schools neither have their fair share of good teachers, nor the
balances of gifted and average, and poor and middle-class pupils
that all good schools need. Along with the increasing concentrations
of poverty, one must also consider the numbers of children in urban
schools who have disabilities, are from single-parent homes, are
undernourished, or are ill. Recent research reported by the Public
Policy Institute of California shows that average reading achievement
of 10th-graders in high-poverty schools is about the same as the
reading level of fifth-graders in the most affluent schools. The
California studies also show that low family income is strongly
related to low attendance, minimal participation in after-school
activities, and to a conspicuous lack of mental health assistance.
It is also sadly
true that urban schools have disproportionate levels of uncertified
and poorly trained teachers. Many dedicated and able teachers remain
committed to teaching in urban schools. But many also leave for
higher pay and better teaching conditions in the suburbs. A report
about Philadelphia area schools in 2003 is not atypical: About 1
percent of teachers in the city of Philadelphia make more than $70,000
a year. In Delaware County, 28 percent do; in Montgomery, 36 percent;
and in Bucks County, 47 percent earn more than that.
may recall stories of successful poverty-stricken schools. I have
visited more than a dozen of them, including some Catholic schools,
in New York, Chicago, Los Angeles, and other cities. They are almost
always anomalies in that they have charismatic leaders and a strong,
positive ethos that act as magnets to draw together the most stable,
healthy, and highly motivated inner-city parents. But these constitute
only a small percentage of impoverished families in urban areas.
We are wrong to believe that these lighthouse schools
can be broadly replicated within existing urban systems while maintaining
the imbalances of financial and social capital characterizing todays
urban and suburban schools.
is the Hannah Hammond Professor of Education and Sociology and most
recently the author, with Christine Murray, of Teaching in America:
The Second Revolution (Harvard University Press, 2002), which was
awarded the Virginia and Warren Stone Prize for an outstanding book
on education and society.