“I would know by what power I am called hither … and when I know [by] what lawful authority, I shall answer. Remember, I am your king, your lawful king, and what sins you bring upon your heads, and the judgment of God upon this land, think well upon it, I say, think well upon it, before you go further from one sin to a greater; therefore let me know by what lawful authority I am seated here, and I shall not be unwilling to answer. In the meantime I shall not betray my trust.” – Charles I of England

“Who are you? I want to know who you are. What does this court want? I preserve my constitutional rights as the president of Iraq. I do not recognize the body that authorized you.” – Saddam Hussein

To try a head of state always tests the legal ingenuity of a jurisdiction to the utmost. Everyday trials are conducted in the name of the state, the republic in France, or its constituting power; the people in America, or its head, in Britain, the crown. In almost any system, therefore, an accused head of state may refuse to acknowledge the authority of the court, as Charles I did before Parliament in 1649.

In the end, the court simply insisted that it had recognized its own jurisdiction and left the king to protest in vain. He was condemned to death on a Saturday and executed the following Tuesday.

Parliament was well advised to be peremptory. Delay would have given time for doubts to form, for rescue parties to be organized, for diplomacy to come into play. When the First French Republic guillotined Louis XVI and Marie Antoinette, it provoked a war against France by a coalition of European monarchies. It did the parliamentarians no good in the end. Those who had voted for the king to be executed were condemned as regicides and many of them were executed when Charles II returned at the Restoration. Cromwell himself, already in his grave, was exhumed and exhibited on a public gallows. His skull survives somewhere today as a gruesome relic and a warning of the dangers of going to law against the sovereign.

Saddam Hussein cannot hope for such intervention. One of his many mistakes has been to alienate all his foreign and domestic friends. He now finds himself in the same kind of predicament as Marshal Petain at the end of World War II, with the difference that Petain was not accused of mass murder and had been elevated to the headship of state by vote of the Chamber of Deputies, not by coup d’etat. Moreover, De Gaulle could not bring himself to confirm the death penalty on his old commanding officer, thus allowing the nonagenarian to serve his sentence in the prison island of the Ile d’Yeu. Petain died in captivity.

The outcome of Saddam’s trial is impossible to predict, although Iraq still has the death penalty and the prosecution is demanding it. If putting on trial a reigning head of state causes difficulty, imposing the death penalty compounds it many times. Britain is now one of the majority of states that hold the death penalty to be unjustifiable, so threatening the paradox that although Britain is a party to the trial, it might find itself forced to dissent from the verdict. It would certainly not be able again to participate in a Nuremberg-style tribunal, since the judges there, who included several Britons, imposed dozens of death sentences, many of which were carried out.

An alternative to the trial Saddam is undergoing would be to send him to the International Criminal Court at The Hague, before which Slobodan Milosevic is standing trial. The difficulty there is that there is not yet any body of international law that embraces all the crimes of which Saddam will be accused. In a way, Saddam has a strong case, since he will be able to plead reason of state in many cases. That is to say, if and when accused of murder or cruelty against political opponents who raised rebellion against him, he will be able to counterclaim that, as head of state, he had a duty to maintain law and order and that if any deaths occurred they were regrettable secondary effects.

Only if the prosecution is able to demonstrate that deaths were inflicted without the justification of resistance or is able to show proof of the death of the demonstrably innocent or death through outright cruelty will Saddam lack the defense of duty of head of state.

In 1945, the Allies, confronted by the difficulty of trying Hitler, were forced in effect to make up a whole new body of law in order to prepare the Nuremberg Indictment. It was a great relief to them when news of his suicide came, since they were thereby saved from the difficulty of trying a legitimate head of state. It is probable that Hitler could have been condemned on ordinary criminal charges, but such was not the object of the Allies at the end of the agony of World War II. Ordinary criminal charges do not suit the situation in Iraq either.

Whatever legal quibbles are raised about the legality of this trial, and they will be many and loud, Saddam is unarguably a criminal. He achieved power by force and deceit. He maintained it by the same methods and he used the power he achieved to wage two wars of aggression against his neighbors – the war against Iran to realign the joint frontier by force and the 1990 invasion and annexation of Kuwait.

Both wars resulted in many deaths, particularly the Iran war, in which hundreds of thousands of young Iranians were killed. Both wars also led to the deaths of tens of thousands of Iraqis.

There has been no head of state like Saddam in the world since the death of Hitler, in his combination of tyranny of his own people, aggression against his neighbors, and defiance of international order.

In that respect, he is a second Hitler and deserves the fate the Allies of 1945 had prepared for the Nazi dictator but were cheated of carrying out by his taking his own life. Academic international lawyers have always had their doubts about the strict legality of the Nuremberg process. Fortunately, it has always been accepted in popular opinion – the judgment of the man in the street – that Hitler’s minions got what they deserved. The important thing now is to ensure that today’s street returns the same verdict on Saddam.