SADDAM IN THE DOCK:
The Options For A Future War Crimes Prosecution Of The Iraqi Dictator

By ANTHONY DWORKIN

Thursday, Oct. 31, 2002

Suppose the United States goes to war against Iraq and is victorious, and at the war's end, Saddam Hussein is in the custody of the U.S. or one of its allies. What should happen to him?

Under these circumstances, it is almost certain Saddam would face some form of war crimes prosecution. Indeed, recent statements from the Bush Administration suggest that some thought is being given, even now, to the different options for trying Hussein and his lieutenants as part of a post-war settlement.

In this column, I'll describe the case against Saddam, the reasons why he has not been prosecuted so far, and the options for post-war prosecution.

The Clear War Crimes Case Against Saddam

There is no shortage of evidence that Hussein is responsible for acts that are crimes under international law. Indeed, there are few people in the world against whom a stronger set of charges could be lodged.

Hussein's 1988 "Anfal" campaign against the Iraqi Kurds was described by Human Rights Watch, after a detailed investigation, as a clear instance of genocide. The poison gas attack on the north-eastern Iraqi town of Halabja in February 1988, in which an estimated 5,000 civilians were killed, seems like a textbook case of a war crime, and a crime against humanity.

In addition, there is plausible evidence of numerous other war crimes. During the 1980-88 Iran-Iraq War, there are convincing reports that Iraq executed several thousand Iranian prisoners of war. During the invasion of Kuwait in 1990, it is widely documented that Iraqi troops killed civilians, caused extensive damage to property, and carried out massive looting.

During the suppression of an uprising in the south of the country in 1991, it is believed that Saddam authorized the killing of tens of thousands of civilians. Finally, he is known to have used torture and summary execution extensively against political opponents of the regime.

Why Saddam's Defeat and Capture Would For the First Time Allow Prosecution

Obviously, these crimes go back for decades. And there is no shortage of evidence to substantiate them.

Under the Clinton Administration, the Ambassador for War Crimes Issues, David Scheffer, compiled a massive dossier of evidence against Hussein and other Iraqi officials; it includes millions of pages of documents, many seized by Kurdish fighters in northern Iraq. Meanwhile, further evidence has been gathered by a London-based organization, INDICT, by Human Rights Watch, and others.

Until now, however, these individuals and groups have been unable to win international support for a special tribunal to indict Hussein. The lack of international consensus on the issue has largely stemmed from concern that the move would undermine efforts to get him to comply with weapons inspections.

But in the aftermath of a war aimed explicitly at removing Hussein from power, this consideration would obviously disappear. Inspection issues could be negotiated with the new regime even as Saddam stood trial.

Why an International Criminal Court Trial of Saddam Is Highly Unlikely

The most important decision about a possible Iraqi war crimes trial concerns the form and location of the court before which it would take place. This question is closely linked to the circumstances in which the war might end, and the nature of the post-war administration.

One option that can probably be discounted is that Saddam Hussein or other Iraqis might appear before the new International Criminal Court. For one thing, the court only has jurisdiction over crimes committed after it came into being on July 1st of this year. Thus, it could not hear cases related to any of the earlier actions carried out by Hussein or his regime.

In addition, since Iraq is not a party to the ICC, the court could only gain jurisdiction over Iraqi actions on Iraqi soil if the case were referred to it by the United Nations Security Council. That is unlikely.

That is because the U.S. would probably prefer that all charges against Iraqi defendants be heard together - without pre-July 1, 2002 crimes being separated from earlier crimes, which, as mentioned above, the ICC could not try.

In addition, the Bush administration would be unlikely to support any use of the ICC against citizens of a state that has not signed up to it. Those states, after all, include not only Iraq, but also the U.S - and the administration has argued vigorously that the court should not have jurisdiction over U.S. citizens.

A Special Iraq-Based Court Would Likely Try Saddam and Company

So, as President Bush's spokesman Ari Fleischer recently confirmed, the most likely course would be for the U.S. to propose the creation of a special court to try Saddam Hussein and any co-defendants.

Fleischer referred to the example of the tribunal for the former Yugoslavia, based in The Hague. However, more relevant precedents might be the Nuremberg and Tokyo trials after World War II, and a recently created Special Court in Sierra Leone.

In all these cases, tribunals were based in the countries directly concerned. Assuming that a war in Iraq ends either with a total occupation of the country, or the installation of a regime that is sympathetic to the United States, it is likely that the Bush administration will push for war crimes trials to be held in Iraq itself.

Should the Court Be International, Domestic, or a Hybrid?

Another question would still remain, however: Should the tribunal be an international body, created under the auspices of the occupying powers (as in Nuremberg and Tokyo), a domestic (that is, Iraqi) court, or some combination of the two? (The current Special Court in Sierra Leone is an example of this last, "hybrid" category - its prosecutors and judges are drawn both from Sierra Leone and from abroad.)

The ideological outlook of the Bush administration makes it unlikely that they would support a completely international court. The current Ambassador for War Crimes Issues, Pierre-Richard Prosper, has spoken strongly in favour of a domestic or hybrid institution. He said recently that if there is "a free and democratic Iraq" after the war then the new government should take the lead in any process of accountability, because "if the rule of law is to mean something it is best exercised by the concerned or affected states."

For these reasons, it seems most likely that the U.S. government will push for any war crimes proceedings after the war to be heard before a "hybrid" court, with a combined Iraqi and international make-up.

Will There Be Other Defendants Besides Saddam?

Another important question concerns the number of defendants to be tried alongside Saddam Hussein. The Iraqi opposition group INDICT has compiled evidence against twelve people - the so-called "dirty dozen." These including Hussein himself, his two sons Uday and Qusay, and Ali Hasan al-Majid, who led the campaign against the Kurds and is apparently known among Iraqis as "Chemical Ali."

Although the evidence against some of these is less detailed than against Saddam Hussein, the core of this group might well make up the roster of defendants at a first, part-international trial.

As in Germany after World War II, lower-profile cases could be heard in subsequent trials, perhaps conducted exclusively by the new Iraqi regime.

How History Would Inform a War Crimes Trial of Saddam

The historical record of past war crimes trials offers some guidance for today's planners. The Nuremberg trial is remembered primarily for its irrefutable documentation of Nazi atrocities - though prosecutors at the time saw the charge of aggression against Hitler's henchmen as equally, if not more, important. With the dossier against Saddam already thick and damning, certainly making the case for his crimes indelibly and unforgettably will be a major goal of any trial.

The Tokyo trials (and other proceedings in the Far East) were less successful. In part, their failure was attributable to a lingering sense that they were a political creation of General MacArthur's. Moreover, many Japanese saw the defendants' actions as having been reasonable military measures, not crimes.

One lesson history provides is that tribunals work best when they concern actions that cannot be justified as a legitimate pursuit of the national interest. Another is that the credibility of war crimes trials is ultimately linked to the credibility and acceptability of the regime under which they are held.


Anthony Dworkin is editor of the Crimes of War website, an online journal about international law and armed conflict.

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