Milosevic Dies, While Saddam Is Tried: What the Death of "The Butcher of the Balkans" Means for the Prosecution of the "Butcher of Baghdad"

By NOAH LEAVITT

Monday, Mar. 13, 2006

This past Saturday, former Serbian President Slobodan Milosevic was found dead in his cell near The Hague. Milosevic - the "Butcher of the Balkans" - had been on trial for more than four years, for war crimes and crimes against humanity that took place under his command during the 1990s. More than a quarter of a million people died and countless additional people suffered, under his tyrannical rule.

Milosevic's sudden death cast a foreboding shadow over the Saddam Hussein's trial - which resumed today in Baghdad, halfway around the globe from The Netherlands, after a nearly two-week hiatus. As I wrote in a recent column, that trial is already deeply troubled - and not only the news of

Milosevic's death, but also a recent series of troublesome human rights reports about Iraq, will affect proceedings, placing additional burdens on the judges.

Milosevic's Death: Preempting What Would Have Been Invaluable Precedent

Milosevic's death stunned legal observers around the world, who had regarded his prosecution as a potential high-water mark in the development of international justice.

In 1999, the International Criminal Tribunal for the former Yugoslavia (ICTY) had indicted Milosevic and four of his top aides for war crimes and crimes against humanity in Yugoslavia, Bosnia, Croatia and Kosovo.

And in 2001, the Serbs handed over Milosevic to the ICTY, making him the first sitting head of state ever to be prosecuted for such crimes. The ICTY later broadened the charges against him to include genocide.

Milosevic tried hard to derail the proceedings -- reveling in the limelight, and using procedural gambits to drag the Tribunal through years of additional work. But he did not wholly succeed: After several years of dramatic court hearings, Milosevic's trial was scheduled to conclude later this year.

Many hoped, and many of his victims prayed, that Milosevic's adjudication of guilt, and his sentencing, would both establish the strong-fisted leader's responsibility for massive rights violations, and create a permanent historical record of his regimes' abuses. It was anticipated that Milosevic would likely face life imprisonment, and that the trial proceedings would provide a clear story of his large share of responsibility for the disintegration of the social and political fabric of the Balkan region.

Even with all these high hopes, and the tens of thousands of hours of work of the prosecutor's office, Milosevic died before the Tribunal could hold him responsible for the catastrophe that took place under his command. His death means that he was not found guilty of any crimes. It also means that there can be no record of his atrocities definitively established.

Milosevic's death also robs the world of the chance to develop international jurisprudence for bringing to justice the highest level of human rights violators. Chief U.N. war crimes prosecutor Carla Del Ponte commented that she regretted Milosevic's death because she believed he would have been convicted of the more than 60 charges against him.

Milosevic's death also means that the Saddam trial now takes on a heightened role in establishing procedures and law for prosecuting heads-of-state who are accused of crimes against humanity and genocide. Now the Saddam verdict - not a Milosevic verdict - will be precedent-setting.

Recent, Troubling Human Rights News in Iraq Puts Even More Pressure on the Trial

Meanwhile, the new precedent-setting status of the Saddam trial is not the only new pressure on the proceedings.

As the human rights situation in Iraq rapidly deteriorates, the Saddam trial has the potential to be not only a touchstone for those who hope to hold heads of state accountable for their crimes, but also a symbol of the rule of law - and in particular, of the importance of international human rights and war crimes law.

That the human rights situation in Iraq is dire is not in doubt. Three reports from widely divergent sources agree on that:

First, Amnesty International released an extensive report last week concluding that thousands of detainees being held by the U.S.-led Multinational Force in Iraq are trapped in a black hole of detention and cannot exercise basic due process rights. It also found extensive evidence of torture by groups that report to the Iraqi Interior Ministry.

Second, the former United Nations human rights inspector for Iraq, John Pace, issued a detailed statement making the case that human rights abuses in Iraq today are even worse today than they were under Saddam's regime. He noted that during this past February, his final month in Baghdad, hundreds of bodies showing signs of torture were brought to the city morgue. Pace believes they were almost all executed. He concluded that the threat of torture and death now extends "over a much wider section of the population that it did under Saddam."

Third, and finally, even the United States government - which many have blamed for the deteriorating situation in Iraq - released last week an annual human rights report citing extensive rights violations in Iraq. These ranged from arbitrary arrests, to torture with electric drills and shock inducers, to random killings. In its report, the U.S. government primarily blamed Iraqi military and police agents for these deteriorating conditions, but is plain that the U.S. itself bears some of the responsibility, as well.

With all these human rights violations on record - and the situation worsening - the need for international standards to be publicly enforced, with due process guarantees, in the Saddam trial, is only increasing.

The Saddam Trial Faces Issues of Due Process - and of Record-Making

However, the chance the Saddam trial will stand as a positive example of law enforcement is decreasing, as it proceeds in increasingly dangerous circumstances, fraught with political tensions. Lately, Baghdad has seen some of the worst weeks of bombings in the past decade. In the past weeks, Baghdad morgue workers stated that more than 1,300 Iraqis had been killed as a result of internal violence. Observers continue to suggest that the Tribunal be moved out of Baghdad. Though ignored, they remain absolutely correct. As I wrote earlier, the tribunal cannot even protect its own participants.

Currently, Saddam is on trial for ordering the killing of more than 140 people in the town of Dujail in 1982, in retaliation for an attempt to assassinate him. This is the first of what could be a series of cases against him for different, and far more extensive crimes. But it might also be the last.

That's unfortunate - for a series of trials could perform the kind of record-making function that the Nuremberg trials did, and that many hoped Milosevic's trial would. Among the lessons of Milosevic's trial is the need to focus on establishing an extensive historical record that describes the full extent of the defendant's viciousness.

This first trial, however, could end not only the proceedings, but Saddam's life: Unlike Milosevic, Saddam faces the death penalty if found guilty for the Dujail killings alone. And the penalty could be inflicted fairly swiftly - Article 27(B) of the Tribunal's constituting statute specifies that punishments must be carried out within 30 days of the date of final judgment (and after appeals). The Tribunal should resist the urge to quickly execute Hussein before his destruction of thousands of lives can be fully understood and documented.

The Evidence Presented Recently: Will It Prove Sufficient?

Saddam's previous appearance before the Tribunal, a few weeks ago, seemed to some a victory for the prosecution. The Chief Prosecutor, Jaafar al-Musawi, introduced papers meant to function as the "smoking gun" to establish Saddam's guilt. But it's not clear if they did that.

First, Musawi submitted to the tribunal what he claimed were execution orders for almost 150 men and boys - the orders referred them to the Revolutionary Court for capital sentencing, and eventually most were hanged in the notorious Abu Ghraib prison. Saddam acknowledged that he ordered the executions as part of his government' response to the 1982 assassination attempt. But he claimed that his order was justified in the context of the assassination attempt, and that as head of state, he was simply doing what was permitted by Iraqi law at the time he did it. Also, Musawi offered no proof that these orders were attached to a plan to exterminate the civilian population.

Second, Musawi presented papers reflecting an order of the Revolutionary Command Council, which Saddam headed, to authorize the seizure of property of those alleged to have participated in the attempt on Saddam's life. Most of these signatures were claimed to be in Saddam's handwriting - but Musawi did not present proof of that fact. Under tribunal rules, the Chief Judge determines documents' authenticity after listening to both sides' explanations of the evidence, but one might think due process would require more.

Is this evidence enough? It's hard to tell - for the Tribunal has not articulated the precise charges against Saddam. Proof that civilians unconnected to the assassination attempt were killed according to Saddam's orders is likely to be important, however.

A Lingering Problem: A New Judge Who Is Vulnerable To Criticism

Of even greater concern is that Saddam's trial is being carried out under the eye of a controversial new Chief Judge, Abdel Rahman, who assumed control of the proceedings about a month ago.

Rahman has taken a firmer hand with Saddam than his predecessor, who was criticized for allowing Saddam to take control of the proceedings, as Milosevic had often done.

However, many observers are questioning Rahman's role. They suggest that he cannot be an unbiased judge when he was once a native of the Iraqi Kurdish city of Halabja, against which Saddam launched a chemical weapons attack, killing about 5,000 people, including some of Rahman's own relatives. Millions of Iraqis were affected by Saddam's regimes' abuses, but Rahman was affected especially acutely and personally.

As I've noted in a previous column, the Chief Judge's role is critical. Suggestions of bias may taint that role, and hence all of the tribunal's proceedings. At a minimum, Chief Judge Rahman should release a written statement explaining why he is not compromised by this past history. Much better, would be for him to recuse himself, and allow a successor to serve - someone who had no previous ties to, or families members killed by, Saddam's regime.

The world enjoys only a very few opportunities to bring monstrous heads of state like Milosevic and Hussein to justice. We can only hope that this year, the 60th anniversary of the Nuremberg trials, will be seen as a moment when a broad historical record of Saddam's crimes is definitely (and with due process of law) established -- not as the moment when the world lost the chance to bring to justice the Butcher of Baghdad, just as it has lost the chance to bring to justice the Butcher of the Balkans.


The author, a lawyer, teaches at Whitman College. He can be contacted at nsleavitt@hotmail.com

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