His Day in Court

Saddam will be brought to justice, but what kind of justice?


President Bush wants the Iraqi people to know that the fate of Saddam Hussein is in their hands. Bush might think Saddam’s crimes merit execution, but, not being an Iraqi citizen, he says, it’s not for him to say.

“I think he ought to receive the ultimate penalty … for what he has done to his people…. I mean, he is a torturer, a murderer, they had rape rooms. This is a disgusting tyrant who deserves justice, the ultimate justice. But that will be decided not by the president of the United States but by the citizens of Iraq in one form or another.”

Both the United States and Britain have given verbal support to Hussein’s being tried in some kind of Iraqi tribunal. Here’s what Bush had to say:

“We will work with the Iraqis to develop a way to try him in a way that will stand international scrutiny, I guess is the best way to put it…. We want it to be fair, and of course we want the world to say, you know, `He got a fair trial.’ Because whatever justice is meted out needs to stand international scrutiny.”

While the American president supports the tribunal, he hasn’t committed himself on the Iraqi Governing Council’s plan to try Hussein for war crimes, crimes against humanity and genocide. Last week the council adopted procedures on how to try and punish high-level Baathist figures, retaining the right to impose capital punishment, a penalty long used in Iraq. The president of the IGC, Abdul Aziz al-Hakim, told the press that Hussein would be tried by the new Iraqi tribunal. “[I]f it is proven that he is guilty, he could be condemned to death.”

While President Bush, a great proponent of the death pentalty, withheld comment on this plan, others openly disapproved. Thus Kofi Annan: “We [the United Nations] are not going to now turn around and support the death penalty.”

The capture of Hussein was undoubtedly a relief to the world; his prosecution is more problematic. The IGC wants to try him at home, some advocates of international law advocate an Iraqi/international court, while others say the trail should be held outside of Iraq. Many legal experts argue that since Hussein could be found guilty of genocide against sectors of the Iraqi people, his trial should be held in Iraq. But given the importance of the case, concerns arise about the ability of Iraq’s fledgling justice system to handle the task. If capital punishment remains an option, though, many international judges from countries opposed to the death penalty may refuse to participate.

Salem Chalabi, nephew of Ahmed and one of the architects of the Iraqi tribunal, explains that for the sake of expediency Hussein will probably be charged with only a dozen of the numberless crimes he’s responsible for. These include the gassing of the Kurds in 1988, the execution of prominent Shiite Muslim clerics and murder of an untold number of Shiite Muslims in their uprising following the 1991 Gulf War.

As Philippe Sands, a professor of international law at University College London, writes in the Guardian, the most important thing is that Iraqis and others in the Middle East and Islamic world see the trial as legitimate. This will require Iraqi, and perhaps other Middle Eastern judges to play a leading role.

Some experts hail the Nazi trials at Nurenberg as a model, while others remind us the questions of illegitimacy have arisen because the trial was held under the allied occupation.

It’s unclear what kind of trial will occur under the new Iraqi government to be elected next June, let alone under U.S. occupation. Washington will surely try to get the most out of the trial, but as Barry Lando writes, in Salon, the administration’s moment of glory could not go as planned. A full trial, one not impeded by occupying forces, could expose more than Hussein’s crimes.

“Instead, prominent Americans could find themselves playing a role in what may be a very long, drawn-out and embarrassing trial. Imagine, for instance, seeing Defense Secretary Donald Rumsfeld, former Presidents George Bush and Bill Clinton, and a parade of CIA directors and secretaries of state called as witnesses — for the defense. Not to mention a clutch of headmen from other Western and Middle Eastern countries. This may be exactly what Saddam now craves: the chance to publicly implicate other leaders and countries in his own brutal past. It won’t be difficult.”