NEW HAVEN: So now that Saddam Hussein has been captured, what will it mean for him to "face the justice he denied to millions," as President Bush put it?
The overriding policy goal should be to hold Saddam accountable for his well-documented, monstrous crimes through a legal process that is universally perceived as justice, not vengeance. To achieve that goal, the US-led coalition and the fledgling Iraqi Governing Council face three basic choices: to try Saddam before an international tribunal, a domestic court, or a "hybrid" domestic-international tribunal.
The first option, a genuinely international tribunal, seems politically unrealistic. Neither the United States nor Iraq are parties to the International Criminal Court; that Court has power to hear only crimes committed after July 1, 2002. And, in any event, in a short-sighted move the Bush Administration has cut off that option by "unsigning" the Clinton Administration's December 2000 signature of the Court's organic treaty. A new ad hoc international tribunal – like the Yugoslavia and Rwanda Tribunals – would require a new UN Security Council resolution, which continuing bad blood over the Iraq invasion renders unlikely.
Most of the talk after Saddam's capture centered around the second option: trying him before a domestic tribunal to be dominated by Iraqi jurists, something which was created last week by the Iraqi Governing Council before Saddam was found. Yet the commander of the US forces who captured Hussein warned that whether and when Saddam Hussein will be turned over to the Governing Council ''has not been determined.'' The untested Iraqi judicial system has no demonstrated capacity to carry out a lengthy, complex, and expensive trial of genocide, war crimes, and crimes against humanity. Recent prosecutions before the Rwandan and Yugoslav tribunals have shown that serious cases of genocide, war crimes or crimes against humanity require skilled and experienced judges and prosecutors to collate and sift mountains of documents, to extract forensic evidence from mass graves, and to find and extract statements from thousands of witnesses. Until now, Iraqi trials have lasted only days, and have commonly yielded convictions based on torture-induced confessions. Decades of Saddam's brutal rule have left few Iraqi lawyers at home or abroad with the training, skills and neutrality necessary 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's justice, particularly if held under military jurisdiction. The Bush Administration cannot easily bring Saddam to Guantanamo, particularly when the US Supreme Court is set to review in March the availability of habeas corpus jurisdiction to detainees being held there. A military commission could potentially be established outside the United States on occupied Iraqi territory, but would quickly come to symbolize the humiliating power of the American occupation. For all of these reasons, the best available option seems to be trying Saddam before a "hybrid" domestic-international tribunal, resembling the Special Court recently set up 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 by blending the domestic and international. In hybrid courts, foreign judges sit alongside domestic judges to try cases prosecuted and defended by local-global teams under indictments that apply domestic law adapted to internalize international human rights and humanitarian standards.
A hybrid court would have the twin advantages of upholding Iraqi sovereignty, while still allowing for critical international expertise. The statute that established the Governing Council's tribunal allows the 25-member Council to appoint some non-Iraqi jurists to the five-judge panel. The Governing Council, which will also appoint prosecutors, defense lawyers, and investigators, is required to seek the expertise of international specialists. A three-tiered legal process seems likely, with top officials like Saddam being tried by the human rights tribunal; mid-level officials going before revamped Iraqi courts; and rank-and-file officials and troops appearing before a truth-and-reconciliation commission similar to that created in post-apartheid South Africa. Should the Iraqi security situation remain unstable, the hybrid court - as in the Lockerbie 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 pervasive criminal activity, without succumbing to the temptation to try every allegation. Reports from the US State Department and nongovernmental human rights organizations have massively documented at least three sets of triable offenses: first, Saddam's genocidal 1988 "Anfal" campaign, which killed some 100,000 Iraqi Kurds and demolished more than 4,000 villages; second, his war crimes of using chemical weapons against Iranian 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 expulsion of ethnic minorities from northern Iraq during Saddam's "Arabization" campaign; and three decades of torture, summary executions and several hundred thousand "disappearances." Less clear is whether the hybrid tribunal should take on such broader charges as committing aggression against Kuwait (a crime parallel to one prosecuted at Nuremberg). To ensure the domestic character of the trial, Iraqi prosecutors will surely press to include such charges as graft, looting of the natural resources, cultural patrimony, and financial assets of the Iraqi people.
Whatever crimes are charged, the hybrid tribunal will need to decide how to adapt internationally accepted rules of procedure and evidence to make the trial credible, locally, regionally, and globally. How broadly to televise 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 surely see trial publicity as his last, best chance to argue to Iraqis that his conviction would be just another humiliation of a once-proud nation.
A final controversial question is whether Saddam should face the death penalty, which is outlawed throughout Europe and in international tribunals. Although the American-led Coalition Provisional Authority temporarily suspended the death penalty, the Governing Council is widely expected to reinstate it. Any spike in Tony Blair's popularity at home from Saddam's capture would be quickly lost if he were to acquiesce in Saddam's execution. Because European resistance has forestalled the Turkish execution of Kurdish terrorist leader Abdullah Ocalan for several years, any offer of European support might well also be withdrawn were the Governing 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 only the beginning of the end. His trial presents America, Iraq, and the world with an historic opportunity for global education. If mishandled, Saddam's trial could undermine the efforts of other countries in the region to invoke legal process to address such past abuses as disappearance and summary execution. Handled prudently and multilaterally, the trial can teach a traumatized Iraq and post 9-11 world how the rule of law can illuminate history, assign individual responsibility, heal a wounded nation, and help it negotiate a political and psychological transition from a dictatorial past to a democratic future.
Harold Hongju Koh is Gerard C. and Bernice Latrobe Smith Professor of International Law and Dean-Designate, Yale Law School, and a former US Assistant Secretary of State for Democracy, Human Rights and Labor, 1998-2001. This article appeared in YaleGlobal Online, a publication of the Yale Center for the Study of Globalization, and is reprinted by permission. Copyright © 2003 Yale Center for the Study of Globalization
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