ICTJ in the News

December 20, 2003

Dictator to deal with local justice

The Weekend Australian

By Rodney Dalton

How will Saddam Hussein be tried, who will try him and what punishment might he face? New York correspondent Rodney Dalton looks at the options

ADOLF Hitler took his own life, Joseph Stalin died in his sleep -- his crimes against humanity still largely hidden -- and Benito Mussolini ended hanging upside down in a town square.

With US soldiers breathing down his neck, Saddam Hussein could have taken his secrets to the grave, but he threw up his hands in surrender.

History will decide where Hussein ranks among dictators but, by choosing to live, the former Iraqi leader has guaranteed the most watched trial starring a living, breathing dictator.

It will be the most significant war crimes trial since the victorious Allies -- the US, France, Britain and the Soviet Union -- brought the Nazis to account after World War II. The question is, what kind of trial.

Almost everybody agrees that Hussein, who ruled the country from July 1968 until May this year, and his henchmen should face trial in Iraq, where the most heinous of his alleged crimes were committed.

George W. Bush said this week that the US "will work with the Iraqis to develop a way to try him in a [way] that will stand international scrutiny".

"And, of course, we want it to be fair," said Bush -- who a day later spelled out that Hussein was "a disgusting tyrant who deserves justice, the ultimate justice".

In Bush-speak, that means the death penalty, a form of punishment rejected by the UN and the European Union but legal in the US. It is also rejected by the Iraqi Kurds, who say death would be too merciful for Hussein.

The imposition of the death penalty narrows the options for trying Hussein, according to Columbia University professor of law Jose Alvarez, who points out that the various war crimes options used since Nuremberg have had UN backing.

The International Criminal Court in The Hague is an inappropriate option for many reasons. It has no jurisdiction over crimes committed before July 1, 2002, and neither the US nor Iraq gave it their blessing.

A special UN-backed tribunal similar to those for Rwanda and the former Yugoslavia -- former president Slobodan Milosevic is on trial in The Hague -- would have international credibility but would alienate alleged Iraqi victims from the trial process.

The Iraqi Governing Council created the Baghdad-based Iraqi special tribunal for crimes against humanity on December 10. The judges and prosecutors must be Iraqis but there is scope for international experts to be brought in as advisers.

Some observers worry that the Iraqis are not up to the task of handling such a big trial, while others warn that Washington's influence will tarnish its international credibility.

Hanny Megally, of the New York-based International Centre for Transitional Justice, worries that a chance to set an example for other countries in the region could be lost if the US is not careful.

"If people see it as the US pulling the strings behind a facade of Iraqi judges and prosecutors, there will be more doubts about the whole legitimacy of the process," Megally tells Inquirer.

He says it is a chance for Iraq to leave behind its violent history. "It will also be important for the rest of the region because this will be the first time that a trial of this stature is done in a fair way with the [effect] being that the truth comes out, not just that people get punished," he says.

Alvarez says war criminals have been tried in domestic courts before, pointing to Adolf Eichmann, whom Israeli agents plucked from Argentina to face trial in Israel over Hitler's "final solution" for the Jews. He was found guilty and hanged in 1962.

An international tribunal and war crimes scholar, Alvarez is generally in favour of local justice, but he is concerned that Iraq is moving towards a trial while under military occupation.

"I have my doubts about the perceptions of fairness, if not the reality of it, in the context of a military occupation, a devastated country and deep suspicions among the various ethnic groups, some of which are implicated in the very crimes that Hussein is likely to be charged with," he says.

Another option for the trial of Hussein is on display in Sierra Leone, where a UN-backed special court is hearing the cases against 13 people charged with war crimes, crimes against humanity and other violations of international humanitarian law.