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| November 18, 2002 |
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There is no shortage of evidence that Hussein is responsible for acts that are crimes under international law. Indeed, there are few people in the world against whom a stronger set of charges could be lodged. Human rights activists have been campaigning for him to be indicted for some time. But there are several different forms that such a trial might take – and there is a real danger that, in the aftermath of a US-led invasion of Iraq, a poorly conceived trial could be counter-productive for the cause of international justice. What Might Saddam Be Charged With? There is clear prima facie evidence against Saddam Hussein for the three most serious crimes under international law – genocide, crimes against humanity, and war crimes. Hussein’s 1988 "Anfal" campaign against the Iraqi Kurds was described by Human Rights Watch, after a detailed investigation, as a clear instance of genocide. The poison gas attack on the north-eastern Iraqi town of Halabja in February 1988, in which an estimated 5,000 civilians were killed, seems like a textbook case of a war crime, and a crime against humanity. In addition, there is plausible evidence of numerous other war crimes. During the 1980-88 Iran-Iraq War, there are convincing reports that Iraq executed several thousand Iranian prisoners of war, and used poison gas against Iranian troops. During the invasion of Kuwait in 1990, it is widely documented that Iraqi troops killed civilians, caused extensive damage to property, and carried out massive looting. During the suppression of an uprising in the south of the country in 1991, it is believed that Saddam authorized the killing of tens of thousands of civilians. He is known to have used torture and summary execution extensively against political opponents of the regime. Finally, it is possible that Saddam or his generals may use chemical weapons during the course of a war, if it happens. The use of chemical weapons ("asphyxiating, poisonous or other gases") is a crime under the statute of the new International Criminal Court, and is generally held to be a war crime under international customary law. The first use of chemical and biological weapons is banned under the 1925 Geneva Protocol, to which Iraq is a party. Earlier Attempts to Indict Hussein Under the Clinton Administration, the Ambassador for War Crimes Issues, David Scheffer, compiled a massive dossier of evidence against Hussein and other Iraqi officials; it includes millions of pages of documents, many seized by Kurdish fighters in northern Iraq. Meanwhile, further evidence has been gathered by a London-based organization, INDICT, by Human Rights Watch, and others. Until now, however, these individuals and groups have been unable to win international support for a special tribunal to indict Hussein. The lack of international consensus on the issue has largely stemmed from concern that the move would undermine efforts to get him to comply with weapons inspections. But in the aftermath of a war aimed explicitly at removing Hussein from power, this consideration would obviously disappear. Instead, a trial would appear to be the only feasible way of deciding his fate – since the United States would hardly want to leave him at large, and international law would forbid imprisoning or killing him without trial. Could Saddam Appear Before the International Criminal Court? The most important decision about a possible Iraqi war crimes trial concerns the form and location of the court before which it would take place. This question is closely linked to the circumstances in which the war might end, and the nature of the post-war administration. One option that can probably be discounted is that Saddam Hussein or other Iraqis might appear before the new International Criminal Court. For one thing, the court only has jurisdiction over crimes committed after it came into being on July 1st of this year. Thus, it could not hear cases related to any of the earlier actions carried out by Hussein or his regime. In addition, since Iraq is not a party to the ICC, the court could only gain jurisdiction over Iraqi actions on Iraqi soil if the United Nations Security Council referred the case to it. This is possible, though unlikely. For instance, suppose Iraqi forces use chemical weapons during the course of the war. In that event, some members of the Security Council might well favour authorizing the ICC to try the case. However, the United States would probably oppose this move – and could block Security Council action through the use of its veto. That is because the U.S. would probably prefer that all charges against Iraqi defendants be heard together – without pre-July 1, 2002 crimes being separated from earlier crimes that the ICC could not try. In addition, the Bush administration would be unlikely to support any use of the ICC against citizens of a state that has not signed up to it. . Those states, after all, include not only Iraq, but also the U.S – and the administration has argued vigorously that the court should not have jurisdiction over U.S. citizens. The Options For a Specially Convened Tribunal So, as President Bush’s spokesman Ari Fleischer recently confirmed, the most likely course would be for the U.S. to propose the creation of a special court to try Saddam Hussein and any co-defendants. Fleischer referred to the example of the tribunal for the former Yugoslavia, based in The Hague; he said this had that "worked as a good example and worked well to bring people to justice." However, more relevant precedents for what the administration seems to intend might be the Nuremberg and Tokyo trials after World War II, and a recently created Special Court in Sierra Leone. In all these cases, tribunals were based in the countries directly concerned. Assuming that a war in Iraq ends either with a total occupation of the country, or the installation of a regime that is sympathetic to the United States, it is likely that the Bush administration will push for war crimes trials to be held in Iraq itself, and with the involvement of the successor government. The current Ambassador for War Crimes Issues, Pierre-Richard Prosper, has spoken strongly in favour of this option. He said during a recent press conference in London that if there is "a free and democratic Iraq" after the war then the new government should take the lead in any process of accountability, because "if the rule of law is to mean something it is best exercised by the concerned or affected states." This seems to suggest that the administration may be planning something like the current Special Court in Sierra Leone, or the Serious Crimes Panels in East Timor. These are known in the trade as "hybrid" courts, because they are made up of a mixture of local and international judges. The Dangers of Victor’s Justice There are obvious attractions to the idea of a court that is integrated into the society most affected by the crimes it is to try. However, the example of East Timor suggests there is also a danger that the idea of local justice can become an excuse for proceedings that are poorly funded and have lax standards of professionalism. More importantly, a war crimes trial of Saddam Hussein and other Iraqis could backfire if it seems like a form of victors’ justice under the control of Saddam’s domestic opponents and the occupying United States. This will be all the more likely if there are credible accusations of war crimes against the United States or the Iraqi groups fighting alongside the US against Hussein (as there are, for instance, against General Dostum of the Northern Alliance, with whom the United States was allied in Afghanistan). If there are to be war crimes trials in Iraq, it seems essential that they be organized to the highest standards of justice and impartiality, and that judges from countries who have not been involved in the war should be included. How Many Iraqis Should Go on Trial? Another important question concerns the number of defendants to be tried alongside Saddam Hussein. The Iraqi opposition group INDICT has compiled evidence against twelve people – the so-called "dirty dozen." These including Hussein himself, his two sons Uday and Qusay, and Ali Hasan al-Majid, who led the campaign against the Kurds and is apparently known among Iraqis as "Chemical Ali." Although the evidence against some of these is less detailed than against Saddam Hussein, the core of this group might well make up the roster of defendants at a first, part-international trial. As in Germany after World War II, lower-profile cases could be heard in subsequent trials, perhaps conducted exclusively by the new Iraqi regime. "The pattern globally is that midlevel cases can be dealt with by a conventional domestic system which is accepted and known by the people. It also serves as an important means of reviving the justice system," one unnamed administration official recently told the Los Angeles Times. The number of defendants may also depend in part on the course of the war, if it happens. One reason why the Bush administration has raised the prospect of war crimes proceedings at this stage is to discourage the use of chemical and biological weapons by Iraq during the conflict. If the leaders of the Iraqi army refuse to carry out Saddam’s orders to use weapons of mass destruction, and throw their lot in with opposition forces, it is likely that the United States will try to limit the number who end up on trial for previous crimes. The Lessons of Previous Tribunals The historical record of past war crimes trials offers some guidance for today’s planners. The Nuremberg trial is remembered primarily for its irrefutable documentation of Nazi atrocities – though prosecutors at the time saw the charge of aggression against Hitler’s henchmen as equally, if not more, important. In the case of Saddam Hussein, an important goal of any trial would be to establish a record of his crimes that could not be denied – a goal that would be best served by a convincingly impartial tribunal. The Tokyo trials (and other proceedings in the Far East) were less successful. In part, their failure was attributable to a lingering sense that they were a political creation of General MacArthur’s. Moreover, many Japanese saw the defendants’ actions as having been reasonable military measures, not crimes. One lesson history provides is that tribunals work best when they concern actions that cannot be justified as a legitimate pursuit of the national interest. Another is that the credibility of war crimes trials is ultimately linked to the credibility and acceptability of the regime under which they are held. In this respect, it is important to bear in mind that standards in international justice have changed significantly in the last fifty years. What seemed acceptable after World War II – a military tribunal, made up of representatives of the victorious powers – would be seen very differently today, when we have witnessed the creation of genuinely independent courts for the former Yugoslavia and Rwanda, and the launch of a permanent independent International Criminal Court. An earlier version of this article appeared in the online legal journal Writ Related chapters from Crimes of War: What the Public Should Know: Biological
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