The radical lawyer John Cooke prosecuted the King of England, Charles I, in 1649—and in doing so opened a chapter in legal history that reverberates 357 years later. Lawyer and human rights campaigner Geoffrey Robertson, in an extract from his book The Tyrannicide Brief (2005), describes Cooke’s pivotal role and assesses its modern implications:
Cooke’s charge began with a fundamental proposition: the King of England was not a person, but an office whose every occupant was entrusted with a limited power to govern ‘by and according to the laws of the land and not otherwise’. It had been with the criminal object of securing unlimited and tyrannical power that Charles I had levied war against Parliament and had set out to destroy the very people whose life and liberty he was obliged to preserve. To bring home his guilt for the crippling loss of English life on both sides in the war he had started in 1642, Cooke invoked the doctrine which is called, in modern war-crimes courts, ‘command responsibility’:
‘By which it appears that he, the said Charles Stuart, has been and is the occasioner, author and continuer of the said unnatural, cruel and bloody wars and therefore guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to the nation acted and committed in the said wars or occasioned thereby.’
The charges against Milosevic at The Hague convey the same idea—the responsibility of the commander for all the natural and probable consequences of his commands. Cooke alleged not only high treason, but ‘other High Crimes’, which he spelled out in the final paragraph: Charles Stuart he impeached as ‘a tyrant, traitor, murderer and public and implacable enemy to the Commonwealth of England’. In a nutshell, what the Solicitor-General had created was a new offence, one that could condemn most of the crowned heads of Europe at the time, and many of the dictators and undemocratic rulers who would come to power in the nations of the world in the following centuries. He had made tyranny a crime.
The consequences were as follows:
As a regicide, Cooke was exempted after the Restoration of Charles II from the Indemnity and Oblivion Act which indemnified most opponents of the Monarchy for crimes they might have committed during the “Interregnum” (1649–1660). He was therefore tried and found guilty of “high treason” for his part in the trial of Charles I. He was hanged, drawn and quartered with Hugh Peters the radical preacher and another of the regicides on 16 October 1660.
Shortly before his death, Cooke wrote to a friend:
“We fought for the public good and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not more delighted in servitude than in freedom.”
Today it appears that the Iraqi nation is more delighted in freedom than many Western ones. Nor is this surprising: a lot of past buries memory.
Interviewed by Charlie Devereux, Robertson said in 2005 that “by the standards of European rulers of the age, Charles’s alleged crimes are less brutal than those alleged against Saddam Hussein.” In contrast to Robertson’s comment in the interview, I do not believe that the execution will make Saddam a martyr. From a political point of view, his death is more useful than not. It gives the Iraqis a political and military opportunity to proceed with the stabilization of their state and democracy. “Resistance” in the sense of rebuilding the old regime can no longer fuel the “civil war.” On the contrary, “resistance” has become little more than the propagandistic formula used by terrorists sent by Iran and Syria to justify their car bombs and massacres of civilians.
Unfortunately, this strange “legitimacy” is taken seriously by many European intellectuals, caught up in their ideological hypocrisy and political ambitions. They invoke noble values and principles to mask their hatred for the US and everything that smacks of “capitalistic and bourgeois democracy.” For them, the dogma is “the enemy of my enemy is my friend.” The enemies of democracy in Iraq will surely find some other excuse to keep on fighting, even if Saddam can no longer be restored to power. Saddam was as much a pretext as everything else. Ultimately the Iraqi “civil war” is not so “civil” but supported by other countries with obvious geopolitical aims.
As for Italy, Daniele Capezzone, President of the Chamber of Deputies’ Commission on Productive Activities (and a member of the same party of Marco Pannella, the radical leader who went on a hunger strike to protest Saddam’s execution), describes the present political and cultural situation in these terms:
There are many Italian politicians (in the present government) who are very talkative now, but (with the exception of some radicals) they are silent when similar problems arise in Iran or China. They were especially silent during the very long years Saddam’s regime, despite all the killing, gassing, exterminating, and invading. But, you know, when the US and Israel are not involved, the fight for human rights is much less appealing, at least in Italy.
In the present Italian debate about the Saddam’s treatment, the paradox is that some antifascist, left-wing intellectuals and politicians try to describe Saddam’s execution as if it was more brutal and illegal than Mussolini’s at Piazzale Loreto in Milan, April 1945. In fact, other leftists are even ready to modify their evaluation on Mussolini’s execution in order to be able to criticize Saddam’s so as to attack the presumed ghostwriter behind Iraqi’s court sentence: the US and its evil commander-in-chief, G. W. Bush.
There is only one important regret, as Bernard Kouchner, co-founder of Médecins Sans Frontières and former UN governor in Kosovo, said to la Repubblica (January 2, 2007):
Saddam Hussein was one of the worst tyrants of the twentieth century and he was executed for a grave crime which however did not represent the extent of horrors he soiled his hands with. I’d like to have seen a less caricatured trial, in which the extermination of the Kurds and the Shiites’ in the South of Iraq, as well as large scale tortures and political murders by his secret services would have been better investigated and exposed.
Nonetheless, in given historic conditions, “killing a tyrant can be a political means to govern the transition from dictatorship to democracy,” as Kouchner adds. In contrast to Milosevic, Saddam was judged by the court of a legal state that had emerged through three regular and successful elections in 2005. The Iraqi people had legitimated it. In this way, national sovereignty was respected and even founded. It is very similar to the classical case of tyrannicide which has been argued by both Protestant and Catholic thinkers since the sixteenth century (but already supported by St. Thomas). Saddam was tyrant both by usurpation (tyrannus in titula) and by oppression (tyrannus in regimine).
Moreover symbols are often fundamental in politics. Unfortunately they are often related to blood, but sometimes this blood signals the real end of a long-term bloody tyranny (more than 30 years, in this case). Sometimes the birth of a new democracy needs that. Nor was the execution of Saddam anything like Mussolini’s and Claretta Petacci’s case: a crowd lynching two corpses (they were hanged by their feet at a gasoline pump’s trellis) after a summary shooting by communist partisans acting as the self-declared representatives of popular will.
Finally we have to think of the Iraqi context, not to our own in stable western democracies. One day, Iraqis will condemn the death penalty for anyone and everywhere. But they will not be able to do that until their democracy consolidates and they are no longer under siege from their neighbors.
