One can only rejoice at the capture of Saddam Hussein. Few people are more deserving of trial and punishment. U.S. forces deserve credit for arresting the deposed dictator so that his crimes can be presented and condemned in a court of law, rather than arranging to kill him in combat.
But the stakes now are enormous. The fairness of the tribunal he is brought before will determine whether his prosecution advances the rule of law in Iraq or perpetuates a system of arbitrary revenge. Washington says it has not yet decided what to do with him, but the first moves of the U.S.-dominated Iraqi Governing Council are not auspicious.
Saddam Hussein’s government was responsible for the murder of a quarter of a million Iraqis. Among the occupants of the mass graves being unearthed in Iraq today are 100,000 Kurdish men and boys machine-gunned to death during the 1988 Anfal genocide, many after having been chased from their homes with chemical weapons; the 30,000 Shiites and Kurds slaughtered after the 1991 uprising; other Shiites killed during the 1980’s because of their perceived sympathy for Iran; so-called Marsh Arabs killed as the Iraqi government drained the marshes and destroyed a culture that had thrived for centuries; and many individual Iraqis of all faiths and ethnicities who were singled out, their lives ended, for real or perceived opposition to the regime.
To do these victims justice, their plight should be recorded in a court of law and their perpetrators properly judged and punished. But the Iraqi Governing Council, taking its lead from Washington, last week established a tribunal that is to be dominated by Iraqi jurists. Despite the superficial appeal of allowing Iraqis to try their own persecutors, this approach is unlikely to produce sound prosecutions or fair trials. It reflects less a determination to see justice done than a fear of bucking Washington’s ideological jihad against any further enhancement of the international system of justice.
As we know from Rwanda and the former Yugoslavia, prosecutions of genocide or crimes against humanity can be enormously complex, demanding jurists of exceptional skill and sophistication. They require amassing volumes of official documents, collecting sensitive forensic evidence from mass graves, presenting hundreds of witnesses from among victims and accomplices, and paying scrupulous attention to the requirements of due process. To avoid being perceived as show trials or “victor’s justice,” they call for highly experienced jurists of unquestioned integrity.
Saddam’s brutal and arbitrary justice system can hardly be expected to have produced such jurists. Prosecutions were typically based on confessions, often induced by torture. Serious criminal investigations, let alone complex trials, were virtually unheard of. The Iraqi Governing Council hopes to solve this problem by looking to Iraqi exiles as well as Iraqis from communities historically repressed by the Baath Party who remained in the country. But even among these it will be difficult to find jurists with the right combination of skills and emotional distance from the former dictatorship to produce trials that are fair – and seen as fair.
An internationally led tribunal would be a far better option, whether a fully international tribunalor, more likely, an internationally run tribunal with significant domestic participation, such as the special court set up for Sierra Leone. Because its personnel would be selected by the United Nations rather than by Washington’s surrogates, an internationally led tribunal is more likely to be seen as legitimate. And because it can draw from a global pool of talent, it would be better able to secure the experienced and fair-minded jurists than a court that must look only to Iraqis. An internationally led tribunal could still conduct trials in Baghdad and involve Iraqis as much as possible, but it would be run by international jurists with proven records of overseeing complex prosecutions and scrupulously respecting international fair-trial standards.
Despite the obvious merits of an internationally led tribunal, Washington is adamantly opposed, which largely explains the path chosen by the Iraqi Governing Council. But Washington’s opposition reflects its ideology, not concern for the Iraqi people. The Bush administration calculates that a tribunal of Iraqis selected by its hand-picked Governing Council will be less likely to reveal embarrassing aspects of Washington’s past support for Saddam Hussein, more likely to impose the death penalty despite broad international condemnation, and, most important, less likely to enhance even indirectly the legitimacy of the detested International Criminal Court.
No one should endorse these self-serving reasons. Governments should encourage Washington to allow an internationally led tribunal to try Saddam Hussein and his henchmen. The people of Iraq deserve no less.