ICTJ in the News

December 15, 2003

Saddam's Fate to Test Justice in Postwar Iraq

Reuters

By Alistair Lyon

LONDON-A tortuous eight-month manhunt for Saddam Hussein ended simply enough. Bringing the deposed dictator to justice could be a legal and diplomatic minefield.

U.S. President George W. Bush said on Monday his country would work with Iraqis to make sure any trial withstands international scrutiny, without mentioning any U.N. role.

"He needs to be brought to justice and the Iraqi citizens need to be very much involved in the development of a system that brings him to justice. And there needs to be a public trial and all of atrocities need to come out," Bush said.

Saddam will probably be tried by a special tribunal set up last week by Iraq's U.S.-backed Governing Council with a mandate covering war crimes, crimes against humanity and genocide.

A critical world will be watching, along with 26 million Iraqis, for a trial that could help victims of Baathist rule feel that justice has been done, consolidate the rule of law in postwar Iraq and send warning signals to despots elsewhere.

But human rights activists say that an Iraqi tribunal set up under the auspices of the U.S.-led occupation smacks of victor's justice and is a poor substitute for an international court.

Iran said on Monday it wanted an international court to try Saddam on criminal charges Tehran was preparing over the 1980-1988 war with Iraq in which around 300,000 Iranians were killed, including thousands in chemical weapons attacks.

Israel said it wanted Saddam to stand trial for missile attacks during the 1991 Gulf War, as well as his funding of Palestinian suicide bombers.

Kuwait, invaded by Iraq in 1990 and occupied for seven months, has made no demand so far.

CATALOGUE OF CRIME

Charges against Saddam could focus on the campaign against Iraqi Kurds in the 1980s, the use of chemical weapons on Iranian troops and Kurdish civilians, the suppression of the Kurdish and Shi'ite uprisings in 1991, the punishment of the Marsh Arabs and the forced expulsions of ethnic minorities in the north.

The United States, while keen to see the Iraqi leader in the dock, will not want to see defence lawyers turn his trial into a forum that highlights U.S. support for Saddam during the war with Iran, or the West's role in helping Iraq to acquire its once formidable arsenal of weapons of mass destruction.

Washington does not share the qualms of the European Union or human rights groups over a possible death penalty for Saddam, which some also fear could make him a martyr for some Arabs.

Britain, the closest U.S. ally in the Iraq war, said on Monday it would play "no part" in any trial that might lead to his execution, but Prime Minister Tony Blair said he was "quite sure" Iraqis could give Saddam a fair trial.

Human rights groups have voiced strong doubts about that.

"The big question is the capacity of Iraqi judges, prosecutors and investigators," said Hanny Megally, of the New York-based International Center for Transitional Justice.

"Their competence is very low after 30 years when the judicial system was basically cast aside in favour of military tribunals and revolutionary courts," he told Reuters.

Bringing Saddam to justice would require the skills to sift through thousands of documents and tackle complex issues such as mass graves and the chain of command from the president down.

"There have been massacres in the north, killings in the south, one million internally displaced people, all of which are the result of government policies," Megally said. "But the links need to be established in terms of documentation and testimony."

INTERNATIONAL ROLE

Rights groups have called for international jurists to be involved in any Iraqi tribunal to ensure that the process is not seen to be vengeful.

"Iraq has no experience with trials lasting more than a few days," said Human Rights Watch executive director Kenneth Roth. "International expertise in prosecuting genocide, war crimes, and crimes against humanity cases must be utilised to ensure a fair and effective trial."

U.S. policy appears to rule out the creation of any special U.N. tribunal along the lines of those set up for Yugoslavia or Rwanda, but may not exclude an international role in an Iraqi process, taking Sierra Leone's hybrid tribunal as a model.

Former U.N. war crimes prosecutor Richard Goldstone said he was "sceptical that Iraqi judges, investigators and prosecutors will be able to put on a fair trial."

"If it is going to be a credible and legitimate trial it would need a strong international component," said Goldstone.

Veteran South African human rights campaigner Archbishop Desmond Tutu said international law must be respected.

"Whatever we may feel, we have to accept the principle that until he (Saddam) is found guilty in what is claimed to be an open court...you have to assume him to be innocent," Tutu said.

"Otherwise we allow ourselves to be subverted by the very terrorism we want to counteract."