The day after the announcement that Saddam Hussein had been captured, President Bush told a press conference that the United States would “work with the Iraqis to develop a way to try him that will stand international scrutiny.” Although the U.S. government hasn’t said so explicitly, it is generally assumed that Saddam will be handed over for trial before the new Iraqi war crimes tribunal that was established last week. The result could surpass even the Milosevic trial as the most high-profile international trial since the Nuremberg tribunal at the end of World War II.

The question of how Saddam and the other leading figures of his regime might be held accountable has been the subject of widespread debate since a U.S.-led war against Iraq began to look probable over the last year and a half. Many leading international lawyers and human rights groups took the position that an international tribunal like those for Yugoslavia and Rwanda- or at least a hybrid domestic-international body, along the lines of the Special Court for Sierra Leone - would provide the best guarantee of a fair trial. However the Bush administration has demonstrated a consistent and vehement opposition to international courts and made clear it would favour a domestic Iraqi process. Since the war, members of the 25-member Iraqi Governing Council set up by the U.S.-led coalition have also expressed a preference for trying Saddam and his henchmen themselves in an Iraqi court.

Not surprisingly, the tribunal unveiled last week reflects U.S. and Iraqi preferences. Announcing the court, Adnan Pachachi, a former Foreign Minister from pre-Saddam Iraq who is now one of the senior figures on the Governing Council, addressed the concerns that some observers have expressed, saying, “It shows we want to apply the rule of law and not let the desire for revenge take over.” How well does the tribunal’s statute bear out this statement, and what are the prospects for Saddam’s trial?

The tribunal will have jurisdiction over crimes committed between July 17, 1968 (when the Ba’ath Party took power in Iraq) and May 1, 2003 (the day that President Bush declared the major combat operations in Iraq had ended). It will be able to try people for the major international crimes of genocide, crimes against humanity and war crimes, according to definitions that are in line with current international law as detailed in the statute of the International Criminal Court. The Iraqi tribunal will also have jurisdiction over three crimes under Iraqi law: attempting to manipulate the Iraqi legal system, squandering public assets or funds, and pursuing policies leading to war against another Arab country. The court will only have the power to try Iraqi citizens or residents - not any members of the coalition forces who might be alleged to have committed war crimes.

The court will consist of five-judge panels that will oversee all trials, together with a nine-member appeals chamber, and will be headed by a President. There will also be a number of investigative judges, who will conduct investigations and prepare cases, and a group of prosecutors who will conduct the trials. All these officials are to be appointed by Iraq’s Governing Council. However the statute explicitly allows the Governing Council to appoint non-Iraqi judges if it chooses, and also requires that the court’s President, chief investigative judge and chief prosecutor appoint non-Iraqi advisors and observers to give assistance in the relevant aspects of international law and due process standards. In choosing these international advisors, the officers concerned are “entitled to request assistance from the international community, including the United Nations.”

According to a coalition official who played a major role in the drafting process, the Iraqi team that worked on the statute was very receptive to the notion that international advisors should be involved. On this question, the official said, coalition members “were pushing at an open door.” The idea that the tribunal should be obliged to appoint non-Iraqi advisors and consultants (rather than merely being entitled to) was first proposed by the Iraqi team. On the other hand, the question of whether some of the judges themselves might be non-Iraqi was more controversial. The problem here was a political one, the official said: “The Iraqis had no problem with the principle of non-Iraqi judges, but they were worried about the message it would send to their own judiciary” - it might be perceived as a vote of no confidence.

In the end, the provision in Article 4 of the statute that the Governing Council “if it deems necessary, can appoint non-Iraqi judges who have experience in the crimes encompassed in this statute” was only included at the last minute. Indeed it was added at such a late stage that the version of the statute published on the internet contains both this clause and another apparently contradictory provision, in Article 28 (“The judges, investigative judges, prosecutors and the Director of the Administration Department shall be Iraqi nationals.”) In the definitive written text of the statute, Article 28 has been modified to make clear that there is a limited exception for non-Iraqi judges. The coalition official expressed confidence that this option would be taken up when the tribunal began to take shape.

The question of how far international expertise will be incorporated into the tribunal process has been a focus of commentary on the prospects for Saddam’s trial. Kenneth Roth, executive director of Human Rights Watch, warned that the trial might be perceived as “vengeful justice” if international jurists were not involved. A United Nations team that studied Iraq’s legal system last summer warned that it was “not capable of rendering fair and effective justice for violations of international humanitarian law and other serious criminal offenses involving the prior regime,” according to an AP news story that quoted the unpublished report.

But Sandra Hodgkinson, director of the coalition authority's human rights and justice office, told AP that she believed an Iraqi court system - with some training from international experts - could meet appropriate standards of due process. “Iraqis want it that way, and they're capable of doing it that way,” she said. “There is no need to have an international tribunal when the local population is willing and able to do it.”

The statute also provides for the right of the accused. There is a presumption of innocence, and defendants have the right to be informed of the charges against them, to have adequate time to prepare their defense, to cross-examine and call witnesses, and not to be forced to testify against themselves. Although the principal defense lawyer must be Iraqi, defendants are allowed to have additional non-Iraqi lawyers representing them.

The force of these provisions, as well as other important questions like the protection of witnesses, will be determined by the rules of procedure and evidence that the court draws up. These rules are likely to play a large part in determining the international legitimacy of the tribunal, and it is possible that the process of drafting them may be more open to international scrutiny and discussion than was the case with the statute itself.

Another issue that remains unclear is whether the Iraqi war crimes tribunal will be able to impose the death penalty on Saddam or other defendants, if they are convicted. According to the official who took part in the negotiations, British representatives argued strongly and persistently that the tribunal’s statute should explicitly forswear the possible use of the death penalty, but the Iraqi representatives resisted just as firmly. U.S. representatives took a neutral position on this question, the official said. In the end, no statement on the subject was included in the statute.

The U.S.-led coalition suspended the death penalty in Iraq after taking control of the country. But the tribunal is not likely to start operations until at least next July, by which time it is expected that sovereignty will have been handed back to a new Iraqi government. Many observers expect this government to reinstate the death penalty. The statute says that sentences for anyone convicted of genocide, war crimes and crimes against humanity “shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents.” The death penalty was available at the Nuremberg trials following World War II but not in the current Yugoslav or Rwandan tribunals.

If the tribunal is able to impose the death penalty, it might be difficult for European judges or lawyers to participate in its proceedings. Sir Jeremy Greenstock, Britain’s senior envoy to Iraq, warned that the U.K. “would have no part of a tribunal or a process that had the death penalty as one of its penalties.” The United Nations might also find it difficult to play an official role in advising any tribunal with the power to execute those convicted. However it would still be possible for U.S. jurists to take part, as well as those from the rest of the Arab world, Australia, and Caribbean states, among others.

There is no shortage of crimes for which Saddam might be tried. His Anfal campaign against Iraq’s Kurds in 1988, which killed an estimated 100,000 civilians, has been widely described as genocide. He used chemical weapons not only against the Kurds but also against Iranian soldiers during the 1980-88 Iran-Iraq war. Saddam’s widespread use of torture against political opponents, the repression of the Shi’ites in the south of Iraq after their failed uprising in 1991, and the destruction and persecution of the Marsh Arabs would all count as crimes against humanity. The British government now estimates that altogether Saddam Hussein was responsible for the murder of 400,000 of his own civilians. There is also substantial evidence that Iraqi forces committed war crimes, including the execution of enemy captives, during both the Iran-Iraq war and the invasion and occupation of Kuwait in 1990.

As of now, Saddam is being given “all the privileges of a prisoner of war,” according to Gen. Ricardo Sanchez, the U.S. military commander in Iraq. “He’s being treated according to the Geneva Conventions,” Sanchez said. Under the 3rd Geneva Convention, prisoners must be humanely treated, are allowed to communicate with their family, and cannot be punished for refusing to give information beyond their name, rank and serial number. As Commander-in-Chief of the Iraqi military, Hussein would be considered a member of the military (otherwise the so-called “decapitation strikes” aimed at killing him during the war would not have been lawful).

Still, it is notable that the United States has stopped short of actually saying that Saddam has been given prisoner of war status. “We’re going to treat him in accordance with the Geneva Convention, but his actual end-state status is yet to be determined,” Sanchez told CNN.

Applying the Geneva Conventions would have significant implications for when Saddam might be handed over to the Iraqi tribunal. According to Article 12 of the 3rd Geneva Convention, prisoners of war “may only be transferred…to a Power which is a party to the Convention.” This suggests that Saddam could only be transferred to the Iraqi Governing Council after it has assumed the sovereignty of Iraq, which is scheduled to happen by July 2004. Some members of the Iraqi council have spoken of trying Saddam in the next few months, but that appears unlikely. Article 12 also obliges the United States not to transfer Saddam into Iraqi control until it has “satisfied itself of the willingness and ability” of the authorities who would take charge of him to meet the Geneva Conventions’ requirements.

Related Links:

Trying Saddam
Christopher Greenwood
The Guardian, December 17, 2003

The Statute of the Iraqi Special Tribunal

Bush Press Conference

Try Saddam in an International Court
By Kenneth Roth
International Herald Tribune, December 15, 2003

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