ICTJ in the News

December 20, 2003

Iraq--A Tyrant's Trial

National Journal

By James Kitfield, Sydney J. Freedberg Jr., and Corine Hegland

Each time a dictator falls and a tyranny collapses, the civilized world picks through the ruins like crime-scene investigators at a mass gravesite, seeking clues into the nature of evil. Sometimes the quest for understanding ends in the courtroom, as it did for Adolf Hitler's henchmen at Nuremberg, or more recently for Slobodan Milosevic in The Hague, as if their crimes could be explained in the dusty vernacular of law. In other instances, a day of reckoning is so long delayed that the face of evil becomes all but unrecognizable, having grown soft or infirm with age-a chubby-cheeked Idi Amin in exile, or a glassy-eyed Augusto Pinochet of Chile hounded by international prosecutors from Europe into the cold embrace of his own countrymen. At times, the accusations of evil are shouted at a form beyond all hearing-Romania's Nicolae Ceausescu hanging from a lamppost comes to mind. But the fundamental questions remain the same.

How did this despot come to enslave these people? What aberrant forces conspired to place unchecked power into the hands of a person and a regime willing to wield it so ruthlessly outside the norms of civilized behavior? What process of justice and retribution will minimize the prospect of future tyrants arising in this place and others, and maximize the reconciliation of a traumatized society?

Ever since U.S. troops pulled a dirty and disheveled Saddam Hussein from a "spider hole" near the Tigris River on December 13, the old questions about the civilized world's proper response to a monumental evil are being heard once again. Not since the end of World War II has the United States had a greater and more direct stake in how those questions are ultimately answered.

"The trial of Saddam represents both a great opportunity and a great danger for American foreign policy," said John Hulsman, a research fellow at the Heritage Foundation, a conservative think tank in Washington. An Iraqi-run trial is critical, he says, and "could have an energizing effect on that country's politics. Merely cataloging the tremendous crimes of Saddam Hussein could also convince many Americans who are neither peaceniks nor hawks that this war was worth fighting."

On the other hand, few doubt that Saddam will try to manipulate the trial, much as Milosevic of the former Yugoslavia has dominated his own war-crimes tribunal, trading his violent bully pulpit for a legal soapbox. "Saddam will insist that America supported him in the 1980s, so how could he become such a monster suddenly in the 1990s?" Hulsman said. "And the spectacle of another false Muslim prophet being humiliated could potentially bring up feelings of Arab impotence in the face of American strength. That's all the more reason why we have to make sure this trial is not seen as a bunch of Westerners imposing victor's justice."

Henri Barkey, chairman of the International Relations Department at Lehigh University, agrees that the United States has more riding on the eventual trial of Saddam than many people realize. If the Iraqis responsibly bring Saddam to justice, he said, "then the impact of Saddam going on trial, and publicly confronting his victims and the evidence of his crimes, could [be] very favorable.... On the other hand, if we screw this up, and somehow give Saddam the legitimacy of victimhood, the damage could be very, very profound."

Cherif Bassiouni, an international-law specialist with DePaul University, was instrumental in drafting the law passed just last week by the Iraqi Governing Council forming Iraq's war-crimes tribunal. Given that the United States has staked its credibility on making a democratic Iraq a model for liberal reform throughout the Middle East, Bassiouni sees Saddam's looming trial as a test case for America's strategy in the region.

"Saddam's trial could be a watershed in the history of Arab justice, because for once the kings and dictators of the region will be sent the message that simple, ordinary people count and cannot be tortured with impunity," Bassiouni said. "Given the massive cases of human-rights violations and abuses in the Arab world-where the treatment of people who are detained by police and prison authorities is just horrible-they are not going to like hearing that message."

Sending a Message

For a Bush administration that sought to send a warning to terrorists and rogue states alike with the wars in Afghanistan and Iraq, Saddam's capture amounts to a much-needed boost after the escape of Al Qaeda's Osama bin Laden and the Taliban's Mullah Mohammed Omar. With the chief ringleaders still at large, the Bush administration found it far harder to make the case to the leaders of North Korea, Iran, and Syria that they had better mend their ways or risk becoming next in the U.S. campaign against international terrorism and its supporters. But with Saddam in shackles and his two sons dead, the implicit threat carries more weight.

The degree to which rogue-state leaders or the heads of terrorist organizations are susceptible to such coercion is the subject of much debate. The willingness of the United States to pursue regime change as part of its war on international terror, and the existence of a body of international law increasingly targeting such dictators for crimes against humanity, have certainly changed the assumption of sovereign immunity for tyrants.

Andrew Bacevich, professor of international relations at Boston University, believes that the somewhat mixed message being sent by U.S. actions and the increased vulnerability of dictators to eventual prosecution is that weak leaders need powerful benefactors or very powerful weapons as deterrents to international action.

"For tyrants who preside over relatively small, weak states, I think the message is that you had better look for some powerful protector, or you are increasingly vulnerable to eventually being hauled before a tribunal," Bacevich said. "In that sense, Hosni Mubarak of Egypt, who is not a liberal democrat by any measure, largely gets a pass because he's a faithful partner of the United States. I don't think Vladimir Putin of Russia, on the other hand, goes to sleep at night worried he might be hauled before an international tribunal for some arguably egregious behavior." A smaller regime that feels threatened, he says, might also "redouble its efforts to acquire weapons of mass destruction, like North Korea [is doing], on the assumption they offer some protection."

Charles Dunbar, a former U.S. ambassador to Qatar and Yemen, believes that Saddam's capture and prospective trial probably have bought the United States some influence in the region. "Except for those few nations which might take the extreme position of North Korea that the way to avoid Saddam's fate is to be armed and dangerous, I think the main focus of leaders in the wider Islamic world will overwhelmingly be to get closer to, and seek some accommodation with, the United States."

The audience whose reaction to Saddam's arrest may have the most direct short-term impact on the United States is Iraq's Sunni Muslims, who most benefited from his rule and from their long-privileged position as the country's ruling class. The Sunni Triangle north and west of Baghdad remains the epicenter of the Iraqi insurgency, and it is the region where attacks on U.S. troops have been most intense. For instance, just hours before Saddam's capture was publicly announced, a suicide bomber killed 17 Iraqis and wounded 33 others outside a police station in Khaldiya, a town in the Sunni heartland west of Baghdad. A day after Saddam's capture was revealed, suicide bombers attacked two police stations in Baghdad, killing eight. Once the news of his capture had sunk in, pro-Saddam demonstrators took to the streets in almost every city of the Sunni Triangle.

While anticipating a short-term spike in violence, U.S. officials in Iraq are clearly hoping that Saddam's arrest will ultimately persuade the Sunnis to abandon their support for violent insurgency.

In an address in London, Tony Blair appealed directly to Sunnis to let Saddam's capture represent a clean break from the past. "To the Sunnis, whose allegiance Saddam falsely claimed, I say there is a place for you playing a full part in a new and democratic Iraq," the British prime minister declared. "To those formally in Saddam's party, there by force and not by conviction, I say we can put the past behind us."

Although the circumstances of Saddam's capture on a rundown farm cast doubts about whether he was centrally directing the insurgency, documents seized with him revealed key details about a network of 14 clandestine insurgent cells. These documents suggest that Saddam was operating as a figurehead and key financier of the insurrection. Already, intelligence gleaned from the captured documents has led to the arrest of three Iraqi former generals suspected of financing and guiding insurgent attacks in and around Baghdad.

On some occasions, the capture of a charismatic leader who, like Saddam, ruled by a cult of personality has dealt a guerrilla movement or insurgency a crippling blow. These cases include the dissolution of the Kurdish Workers Party terrorist group after Turks captured its leader, Abdullah Ocalan; and the collapse of the Shining Path guerrilla movement in Peru after the capture of Abimael Guzman.

Whether Baath Party remnants that reportedly form the core of the Iraqi insurgency will likewise now fold remains one of the unanswered questions posed by Saddam's capture. "Whether we like it or not, in many parts of the Arab world, and particularly among the dispossessed on the Arab street, Saddam Hussein was a hero," said Hermann Eilts, former U.S. ambassador to Egypt and Saudi Arabia. "And despite the manner of his surrender, I think that remains true. So while it represents an important symbolic success, I'm one of those who does not believe Saddam's capture will bring an end to the insurgency. A lot also depends on how the trial of Saddam is conducted, and the reaction of Arab public opinion to it."

A Tyrant's Trial

In keeping with its unwillingness to cede even a modicum of real responsibility in Iraq to the United Nations, the Bush administration has never supported the idea of forming an international tribunal for Saddam Hussein. The Bush team has made its unhappiness with the new, U.N.-approved International Criminal Court well-known, for instance. Meanwhile, the U.N.'s refusal to approve any judicial proceeding that includes the possibility of a death sentence does not correspond with the president's view on the appropriate penalty for Saddam. In a December 15 news conference, Bush said the United States would work with the Iraqis to develop a judicial process for Hussein that would stand up to "international scrutiny."

Even many international legal experts say that the trial of Milosevic, the only other former head of state to face war-crimes charges in recent times, stands as a cautionary tale. Prosecutors at the U.N.'s war-crimes tribunal for the former Yugoslavia essentially threw the book at Milosevic, bringing 66 counts against him. Partly as a result, the proceeding is well into the third year of a trial that could eventually take four years or more. By acting as his own counsel, Milosevic has also used the rules of the proceedings to drag the trial out, to intimidate witnesses with his cross-examinations, and to generally turn the trial into a propaganda extravaganza by playing to his audience of Serbian nationalists back home who closely follow the proceedings on television.

"Certainly after the Milosevic trial, legal experts are questioning this strategy of bringing every conceivable charge against the accused out of fear that some of them may not stick, because that ensures a trial that will stretch out for years and prove very expensive," said Hanny Megally, the director of the Middle East and North Africa division at the International Center on Transitional Justice in New York City. With each new war-crimes tribunal and trial, he says, the international legal community is developing more-sophisticated strategies. Prosecutors' new emphasis is to focus on a few of the most serious charges and ensure that investigators have the evidence to make them stick.

"I think we've also learned that holding these trials in faraway locations, and in foreign languages, makes it very hard for the families and victims to follow the proceedings," said Megally. "That prevents the healing and reconciliation process that should come from the truth emerging, and people having to come to terms with it."

The architects of Saddam's tribunal, which Iraqi officials say could start as early as next spring or summer, seem to be heeding such advice. In published reports, they have said that to keep proceedings manageable, they will likely charge Saddam with only a dozen or so specific atrocities, including the use of chemical weapons against ethnic Kurds in 1988, the mass killing of hundreds of Sunni Muslim tribesmen after a coup attempt, and the execution of prominent Shiite Muslim clerics.

To ensure that the tribunal withstands international scrutiny and receives much-needed help, Iraqi officials have already indicated they may take advantage of stipulations in the tribunal law allowing for the inclusion of international judges and advisers. Their plans may well win international approval. Neil Kritz, director of the Rule of Law Program at the U.S. Institute of Peace, points out that the principle of local control of tribunals is enshrined in the charter for the new International Criminal Court.

"One of the ironies of the ICC, which has strong support internationally, is that it embodies the core principle that local trials and criminal-justice proceedings are preferable to internationalizing the process," Kritz said. "Thus only when a local judicial system is incapable of proceeding on its own can the ICC get involved." Contrary to what many outside experts predicted, he said, Iraqi officials are indicating that they will have enough credibility among the Iraqi public to assume the responsibility for trying their former leader. "When a society emerging from three decades of abuse such as Iraq suffered makes a conscious decision to proceed on its own, it's the obligation of the international community to support them in moving forward," Kritz said.

As Iraq emerges from the rubble of 30 years of Baathist tyranny, a trial should shrink to human dimension the outsized shadow Saddam's omnipresent visage once cast over the land. A number of experts caution, however, that it could take a generation to undo the damage that Saddam and his henchmen caused to the Iraqi psyche. For that reason, a trial may represent only the first step toward rehabilitation. Indeed, experience in other societies similarly devastated by tyranny and atrocity-whether in the former Soviet Union, the Balkans, Rwanda, or Latin America-suggests that extensive efforts on the local level will be required to help average Iraqis come to grips with their own torment.

"Saddam's trial will only be the tip of the iceberg," Kritz said. Iraq will also likely need, he said, a grassroots Truth and Reconciliation Commission to begin an introspective dialogue in Iraqi society; a museum and archive to establish a record of the atrocities; a restitution process to help Iraqis recover their rightful property; and educational reforms to ensure that the hard lessons of subjugation endure. "If there's one lesson we've learned from the transition of other traumatized societies, it's that this process of rehabilitation takes much longer than people anticipate. In Argentina and Chile, for instance, they are still going back and settling questions that they thought were long since settled."

Day of Reckoning

Somewhat ironically, Saddam's trial in the hushed confines of a courtroom could in the long term prove more explosive to the status quo in the Middle East than the "shock and awe" of the U.S.-led war in Iraq. After all, the region has witnessed a blood-soaked century of war, conquest, and military coups. What no one in the Middle East has ever seen, however, is an Arab autocrat confronted with the rule of law as opposed to the rule of might, and forced to answer in court for atrocities committed against his own people.

"I don't think many Arab governments in the region are very enthusiastic about seeing Saddam go down and be brought to trial," said Gary Jonathan Bass, the author of Stay the Hand of Vengeance: The Politics of War Crimes Tribunals and a professor at the Woodrow Wilson School of Public and International Affairs at Princeton University. "Take Bashar Assad of Syria, whose regime also has a record of extreme cruelty to its own citizens," Bass continued. "Assad sees this spectacle of an American-backed Iraqi government next door putting a fellow Baathist dictator on trial, and he thinks, 'Oh, shit!' I think any number of undemocratic leaders in the Middle East are watching this and worrying that the Bush administration vision of democratizing the Middle East might actually be for real."

Given the mechanisms of oppression honed to such ruthless perfection by so many Arab autocrats, democracy and the rule of law in Iraq may prove the exception in the Middle East, assuming that they prove out at all. The discrediting of Saddam Hussein and the pan-Arab nationalism he championed could also hearten Islamic fundamentalists who would happily trade the tyranny of the general or the king for the tyranny of the mullah. At least for the moment, however, the winds of change are blowing through the Middle East like a shamal: one of those giant sandstorms that pass over the desert full of fury and portent, temporarily obliterating what was, and masking what will be.