Does United States Policy Undermine the Goal of War Crimes Trials for Iraqi Leaders?

By D. MARK JACKSON

Saturday, Apr. 19, 2003

As the humanitarian case for war has made its way to the forefront of the debate, President Bush has repeatedly pledged to prosecute Saddam Hussein and top Iraqi leadership for war crimes. Last Sunday, Secretary of Defense Donald Rumsfeld vowed to capture those on the "war crimes list." A war crimes trial appears inevitable.

Unfortunately, this path is not without enormous pitfalls. As the recent war crimes tribunal proceedings for Slobodan Milosevic illustrated, such trials can become highly charged political events.

A particular concern is that past misdeeds of Western countries may be showcased before antagonistic audiences. The result could be to further aggravate delicate political problems and impede the process of nation-building in Iraq.

A United Nations War Crimes Tribunal for Iraq?

U.S. war crimes ambassador Pierre-Richard Prosper has said that the Bush Administration supports an "Iraqi-led process" for adjudicating any past war crimes. However, this proposal has been condemned by human rights organizations, raises questions about potential for abuse, and presents the danger of inflaming ethnic and religious tensions.

Defense Secretary Donald Rumsfeld, on the other hand, has strongly advocated the use of U.S. military tribunals. This suggestion is a mistake: Any non-international trial would be viewed as illegitimate and partial to U.S. interests and would be likely opposed by the British and Spanish governments.

In columns for this site, George Fletcher and Anthony Dworkin have outlined why a United Nations tribunal, similar to that being used to try officials of the former Yugoslavia, would be the favored approach.. Despite this administration's distaste for multilateral institutions such as the International Criminal Court, a United Nations-sanctioned tribunal might be, in the end, the only politically acceptable way to try Iraqi leaders.

The Milosevic Trial, and Why Iraqi Trials May Raise Similar Issues

What would U.N. war crimes tribunals for Iraq look like? It's not necessary to speculate, for we have a current example on which to draw.

Former Bosnian Serb leader Slobodan Milosevic is currently being tried at the United Nations Criminal Tribunal for the former Yugoslavia. Milosovic is accused of 66 counts of war crimes, genocide, and crimes against humanity, based on acts committed since 1991 in Kosovo, Bosnia, and Croatia.

Milosevic's defense strategy has four major elements. First, Milosevic asserts that it was NATO's 1999 bombing campaign, rather than Serbian forces, that killed large numbers of civilians and destroyed massive amounts of civilian property. Milosevic has successfully brought out testimony, upon cross-examination of prosecution witnesses, about damage from NATO bombs and resulting civilian deaths.

Second, Milosevic contends that he was acting in self-defense of the Serbs against assaults by Muslim terrorists. Specifically, Milosevic argues that the United States gave active support to the Kosovo Liberation Army, an organization financed through the same group that funneled 350 million dollars to Osama bin Laden.

Third, Milosevic hopes to highlight his former friendly relationship with Western leaders--he was hailed as a peacemaker after the Dayton Accords in 1995--and how his pleas to put down rebellious groups in Kosovo were later ignored.

Fourth, Milosevic wishes to discredit the very legitimacy of the tribunal itself by challenging its status as an independent and impartial court.

In addition to working as a legal defense, Milosevic's strategy also serves a political function. By bringing in embarrassing and damaging facts about the NATO campaign, Milosevic undermines the continuing peacekeeping and reconstruction efforts.

Indeed, Milosevic's strategy has fueled nationalist fires at home, a force linked to the recent assassination of Serbia's reformist Prime Minister Zoran Djindjic.

Iraqi leaders facing U.N. war crimes tribunals might try strategies similar to Milosevic's - and the result may be to similarly inflame regional tensions.

Which Iraqi Leaders Might Be Tried for War Crimes?

The identity of those who would face postwar tribunals' justice has yet to be determined, but we do know the identities of some of those the U.S. would like to see appear there. Indeed, the Bush Administration has been distributing to soldiers decks of playing cards containing the pictures of Iraqi leaders. As of this writing, of the 55 top Iraqi officials sought by the U.S., only six are thought to be either dead or in custody.

Naturally, Saddam Hussein tops the most-wanted-list, followed by his two sons, Qusay and Uday. They are thought to be responsible for a long list of atrocities, including genocide and the use of torture. The whereabouts of these three remain unknown.

Another top suspect is Iraqi military commander Ali Hassan al Majid, dubbed "Chemical Ali." Majid may have planned attacks that killed as many as 100,000 Kurds, the most publicized incident being the gassing of Iraqi Kurds in the town of Halabja. The latest reports suggest that he may be dead.

Hussein's half brother Barzan al Tikriti has recently been captured, and is suspected of torturing dissidents and executing several thousand Kurdish men. Meanwhile, Aliz Salih Numan and Izzat Ibrahim are believed to have punished army deserters during the Iran-Iraq War. Their whereabouts are unknown.

The U.S.'s Shameful Prior Support for Saddam Hussein

It seems inevitable that Iraqi leaders' defenses, before the tribunals, will prove embarrassing, to say the least, for the U.S.

Human rights groups have compiled strong evidence of Iraqi atrocities. Many of these offenses, however, date back to a period when the U.S. was a staunch ally of Hussein's regime. The formerly close ties between the U.S. and Hussein are too numerous to detail here, but several items are worth noting.

During the 1980-1988 Iran-Iraq War, the Reagan and Bush I Administrations saw Hussein's Iraq as a valuable ally against the Soviets. Throughout the war, U.S. intelligence officials provided information to the Iraqi military. That information facilitated many of Hussein's alleged war crimes, such as the February 1988 assault on Iranians in the al-Fao peninsula. In 1982, the Reagan administration removed Iraq from the State Department's terrorism list.

The Reagan and Bush I Administrations also authorized the sale to Iraq of chemical weapons precursors, as well as anthrax and bubonic plague. Iraq's prewar 11,000 page declaration to the UN Security Council - the one submitted to support an argument that Iraq had disarmed - lists U.S., British, German, and French firms that provided equipment and technical information for Hussein's weapons programs.

Donald Rumsfeld, then the special envoy to the Middle East, did not object to Hussein's military tactics when he met with Hussein in December 1983. At the time, Iraq was using chemical weapons on an "almost daily" basis, as the U.S. must have been aware.

U.S. policy also played a role in the brutal oppression at the end of the first Gulf War. Believing, in the end, that Hussein should remain in power, George H.W. Bush allowed Hussein's forces to pass through U.S. military lines in order to put down uprisings that threatened the regime. Iraqis who had expected liberation were cruelly disappointed. No wonder, then, that Iraqis have been cautious about welcoming U.S. "liberators" now.

Hussein, of course, might never have come to the power without U.S. help in the first place. In 1959, Saddam participated in a CIA-sponsored assassination attempt of then-Iraqi Prime Minister General Abd al Karim Qasim. Hussein failed in this effort, but the CIA went on to train him, and provided him with a monthly allowance while he resided in Syria and Egypt.

In 1963, the Baath Party came to power following a successful assassination attempt of Qasim, a coup that some former U.S. officials have claimed was also CIA supported. The CIA reportedly then provided the names of suspected communists to Saddam, then an up-and-coming party official. The result was that Saddam presided over the capture and summary execution of thousands of doctors, lawyers, teachers, and other professionals.

How Iraqi Officials Might Defend Themselves in a War Crimes Trial.

There is little question that Iraqi officials will use some, if not all, of this evidence in their defense in postwar war crimes tribunals. Certainly, they will try to show that their activities were sanctioned or encouraged by Western governments, particularly the U.S.

Indeed, Iraq officials might even put forth the argument that they were pressured or coerced into such behavior by the U.S..--that they were the puppets, and it pulled the strings.

These arguments are not likely to be legally successful. After all, the "just following orders" defense, even if proven, is no defense at all, especially after Nuremberg. However, in order for the proceedings to appear legitimate, the tribunal must allow Iraqi officials to raise these very defenses. The inevitable result will be to lower the U.S.'s image in the Arab world - and the world as a whole - even further.

Iraqi leaders will also seek to capitalize on the same political strategy employed by Milosevic. They will use the trial to showcase embarrassing and negative facts about Western governments, taking advantage of Arab nationalism and widespread anti-Western sentiment in the Middle East.

The trial will doubtless be heavily covered by the news network al Jazeera and closely followed on the Internet. Any attempt to muzzle publicity, or squelch the underlying presentation of evidence, would be seen as proof of bias and Western interference in the Middle East. Just as the tribunals have little choice but to allow Iraqi leaders to present whatever defense they choose, they have little choice but to allow the media full access to the proceedings.

Little can be done to mitigate any of these harms once the trials start. In making the case for war, the Bush Administration placed heavy emphasis on Iraqi atrocities, leaving no choice now but to place Iraqi leaders on trial. And if the atrocities are chronicled, so too will U.S. support inevitably be exposed.

In the end, the U.S. will thus be forced to endure months, if not years, of damaging publicity. Needless to say, this is not likely to help in the fight against international terrorism.

We Can Avoid These Problems in Future War Crimes Trials

In short, this situation cannot be avoided in Iraq. But can it be avoided in the future?

The answer is yes, but not through any quick fix. It's the history, not the tribunals themselves, that is the problem. After all, international war crimes tribunals perform their intended judicial functions well. They cannot be modified significantly without impacting their legitimacy. And the issue is not that Iraqi leaders would fabricate evidence - they might do that, too, but that could be addressed in the tribunals. It's that they might unearth truths the U.S. would rather keep concealed.

A far better approach involves reconsidering the underlying policies of Western countries seeking to prosecute war criminals. If sunlight is the best disinfectant, as is frequently said in the law, the expectation of tribunals' sunlight ought to correct certain policies that were not such a good idea in the first place.

Certain Policy Changes, Wise in Themselves, Would Also Avoid U.S. Shame

For starters, the "enemy of my enemy is my friend" approach to foreign policy should be abandoned. Specifically, the U.S. must stop installing foreign leaders, covertly supporting nefarious paramilitary groups, and allying with brutal dictatorships.

Sadly, this policy is hardly a thing of the past. To the contrary, U.S. money continues to finance oppressive Afghan warlords. Several members of the "coalition of the willing" - Uzbekistan and Azerbaijan, for example -- are bloody and oppressive regimes whose alliance the U.S. should not be seeking.

Economic liberalization and diplomacy work more slowly than forceful regime change, but the long term results are likely to be more palatable. In addition, these strategies do not create the resentment and backlash that can lead to terrorism against the U.S.

Equally important, the U.S. should disallow the sale of weapons to countries with poor human rights records. Components for weapons of mass destruction should never be distributed by the U.S. - after all, the U.S. opposes the use of such weapons.

Meanwhile, the Commerce and Defense Departments should take a more active role in policing the sale of weapons by U.S. corporations, and through diplomacy, seek to limit weapons' sales by other countries. President Bush should not have allowed, for example, North Korea to ship 15 Scud missiles and 85 drums of chemicals to Yemen last December. But to have the credibility to stop such shipments, the U.S. must itself curb its weapons sales. Too much of U.S .international policy is governed by the idea that the U.S. need not follow rules that apply to other countries.

Finally, when war becomes necessary, Western countries must do everything possible to minimize the political fallout. Wars should be fought with strict adherence to the rules of war. The current operation in Iraq mostly lives up to this goal, but there is certainly more the military could have done to avoid civilian casualties and property damage -- saving the rare artifacts in the Iraqi National Museum, for instance.

A Clean Record Will Mean War Crimes Tribunals Of Which We Can Be Proud

Making these changes would ensure that Western countries maintain the moral high ground in foreign policy. War crimes trials can then be prosecuted without defensive finger-pointing. Nations and their leaders will be insulated from political reprisals. Future leaders, immunized from threats of hypocrisy, will possess a greater range of policy options.

After World War II, the Allied countries faced a challenge at Nuremburg of dispelling the belief that the trial would be merely "victor's justice." For them, this belief was easy to counter. Having waged a just war against the Nazis and having assembled a first-rate tribunal, they were a moral force so powerful as to dissolve any charge of unfairness.

Indeed, morality is what ultimately gives the law its legitimacy, a fact that should not be forgotten when making foreign policy.


D. Mark Jackson is a lawyer with the U.S. Department of Labor in San Francisco. Mr. Jackson also writes on constitutional law, political theory, and poverty law. The opinions expressed in this article are those of the author, not of the U.S. Government. Mr. Jackson may be reached at dmarkjackson@earthlink.net.

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