Justice For Saddam

NEW HAVEN: So now that Saddam Hussein has been captured, what will it mean for him to "face thejustice he denied to millions," as President Bush put it?

The overriding policy goal should be to hold Saddam accountable for his well-documented, monstrous crimesthrough a legal process that is universally perceived as justice, not vengeance. To achieve that goal, theUS-led coalition and the fledgling Iraqi Governing Council face three basic choices: to try Saddam before aninternational tribunal, a domestic court, or a "hybrid" domestic-international tribunal.

The first option, a genuinely international tribunal, seems politically unrealistic. Neither the UnitedStates nor Iraq are parties to the International Criminal Court; that Court has power to hear only crimescommitted after July 1, 2002. And, in any event, in a short-sighted move the Bush Administration has cut offthat option by "unsigning" the Clinton Administration's December 2000 signature of the Court'sorganic treaty. A new ad hoc international tribunal – like the Yugoslavia and Rwanda Tribunals – wouldrequire a new UN Security Council resolution, which continuing bad blood over the Iraq invasion rendersunlikely.

Most of the talk after Saddam's capture centered around the second option: trying him before a domestictribunal to be dominated by Iraqi jurists, something which was created last week by the Iraqi GoverningCouncil before Saddam was found. Yet the commander of the US forces who captured Hussein warned that whetherand when Saddam Hussein will be turned over to the Governing Council ''has not been determined.'' The untestedIraqi judicial system has no demonstrated capacity to carry out a lengthy, complex, and expensive trial ofgenocide, war crimes, and crimes against humanity. Recent prosecutions before the Rwandan and Yugoslavtribunals have shown that serious cases of genocide, war crimes or crimes against humanity require skilled andexperienced judges and prosecutors to collate and sift mountains of documents, to extract forensic evidencefrom mass graves, and to find and extract statements from thousands of witnesses. Until now, Iraqi trials havelasted only days, and have commonly yielded convictions based on torture-induced confessions. Decades ofSaddam's brutal rule have left few Iraqi lawyers at home or abroad with the training, skills and neutralitynecessary to preside over high-profile trials that would be universally regarded as fair and effective.

But other domestic venues seem even more problematic. Any trial under US law would smack of victor'sjustice, particularly if held under military jurisdiction. The Bush Administration cannot easily bring Saddamto Guantanamo, particularly when the US Supreme Court is set to review in March the availability of habeascorpus jurisdiction to detainees being held there. A military commission could potentially be establishedoutside the United States on occupied Iraqi territory, but would quickly come to symbolize the humiliatingpower of the American occupation. For all of these reasons, the best available option seems to be tryingSaddam before a "hybrid" domestic-international tribunal, resembling the Special Court recently setup under joint local-UN auspices in Sierra Leone, or similar judicial experiments being pursued in Kosovo,East Timor, and Cambodia. Hybrid courts compensate for the under-capacity of local judicial systems byblending the domestic and international. In hybrid courts, foreign judges sit alongside domestic judges to trycases prosecuted and defended by local-global teams under indictments that apply domestic law adapted tointernalize international human rights and humanitarian standards.

A hybrid court would have the twin advantages of upholding Iraqi sovereignty, while still allowing forcritical international expertise. The statute that established the Governing Council's tribunal allows the25-member Council to appoint some non-Iraqi jurists to the five-judge panel. The Governing Council, which willalso appoint prosecutors, defense lawyers, and investigators, is required to seek the expertise ofinternational specialists. A three-tiered legal process seems likely, with top officials like Saddam beingtried by the human rights tribunal; mid-level officials going before revamped Iraqi courts; and rank-and-fileofficials and troops appearing before a truth-and-reconciliation commission similar to that created inpost-apartheid South Africa. Should the Iraqi security situation remain unstable, the hybrid court - as in theLockerbie case - could even hold proceedings in a neutral foreign venue such as The Hague, or more likely,somewhere in the Middle East like Bahrain.

The greatest challenge will be framing the indictment: how to try Saddam for three decades of pervasivecriminal activity, without succumbing to the temptation to try every allegation. Reports from the US StateDepartment and nongovernmental human rights organizations have massively documented at least three sets oftriable offenses: first, Saddam's genocidal 1988 "Anfal" campaign, which killed some 100,000 IraqiKurds and demolished more than 4,000 villages; second, his war crimes of using chemical weapons againstIranian troops and Kurdish civilians, summarily executing prisoners of war, using civilians as human shields,and disguising combatants as civilians; and third, crimes against humanity, including: large-scale killings of"Marsh Arabs" and Shi'ites after the failed 1991 uprisings after the Gulf War; the forced expulsionof ethnic minorities from northern Iraq during Saddam's "Arabization" campaign; and three decades oftorture, summary executions and several hundred thousand "disappearances." Less clear is whether thehybrid tribunal should take on such broader charges as committing aggression against Kuwait (a crime parallelto one prosecuted at Nuremberg). To ensure the domestic character of the trial, Iraqi prosecutors will surelypress to include such charges as graft, looting of the natural resources, cultural patrimony, and financialassets of the Iraqi people.

Whatever crimes are charged, the hybrid tribunal will need to decide how to adapt internationally acceptedrules of procedure and evidence to make the trial credible, locally, regionally, and globally. How broadly totelevise the trial will pose particular issues in a country where witnesses face huge risks of retaliation,where anti-American violence is taking a daily toll, and where Saddam (like Slobodan Milosevic) will surelysee trial publicity as his last, best chance to argue to Iraqis that his conviction would be just anotherhumiliation of a once-proud nation.

A final controversial question is whether Saddam should face the death penalty, which is outlawedthroughout Europe and in international tribunals. Although the American-led Coalition Provisional Authoritytemporarily suspended the death penalty, the Governing Council is widely expected to reinstate it. Any spikein Tony Blair's popularity at home from Saddam's capture would be quickly lost if he were to acquiesce inSaddam's execution. Because European resistance has forestalled the Turkish execution of Kurdish terroristleader Abdullah Ocalan for several years, any offer of European support might well also be withdrawn were theGoverning Council and its American sponsors to conclude that Saddam should face the prospect of execution.

In short, Saddam's capture marks not "The End of Saddam," as the US networks trumpeted, but onlythe beginning of the end. His trial presents America, Iraq, and the world with an historic opportunity forglobal education. If mishandled, Saddam's trial could undermine the efforts of other countries in the regionto invoke legal process to address such past abuses as disappearance and summary execution. Handled prudentlyand multilaterally, the trial can teach a traumatized Iraq and post 9-11 world how the rule of law canilluminate history, assign individual responsibility, heal a wounded nation, and help it negotiate a politicaland psychological transition from a dictatorial past to a democratic future.