Trying Saddam: Deciding on a court and the charges
By Phillip Carter
Special to CNN.com
(FindLaw) -- By now, the news of Saddam's Hussein capture has circled the world. After expressing elation over his detention, many have asked the next logical question: now what should we do with him?
The answer, both from President Bush and the Iraqi Governing Council, is that the world will try Saddam Hussein for his crimes against the Iraqi people, his neighboring countries, and against humanity.
But that leaves two pressing questions: Which court -- or courts -- will try Saddam, and what charges will be brought against him? This column will suggest some of the answers to those questions.
Iraqi justice for an Iraqi tyrant: The Iraqi tribunal option
An early consensus suggests that Hussein might be tried by the tribunal created by the Iraqi Governing Council last week for trial of former Hussein regime officials. Both President Bush and members of the Iraqi Governing Council said they would support such a trial, because it would bring justice to the Iraqi people who have suffered most under Hussein's regime.
The Iraqi tribunal will import its law from existing Iraqi law, as well as from the code for the International Criminal Court. The tribunal will have jurisdiction over all Iraqi residents and nationals whose crimes fell between 1968 and 2003. Specifically, the tribunal will hear cases of genocide, crimes against humanity, war crimes and certain violations of Iraqi law such as squandering of public assets or wastage of national resources.
Iraqi judges will preside over this court, and Iraqi lawyers will prosecute Hussein as well, although with some international assistance. Hussein will have "the right to employ the best lawyers in the world," as well as the right to challenge all evidence and confront witnesses at trial. Hussein will have the right to put on his own case as well. The Iraqi tribunals have yet to write their rules of procedure or evidence, but it's likely the rules will combine Iraqi common law with U.S. law.
Even though this tribunal will be Iraqi-led, it may receive some international support and funding via the U.S. occupation authority or the United Nations. David Scheffer, former U.S. ambassador-at-large for war-crimes issues, told the Wall Street Journal that one option would be to obtain a U.N. Security Council resolution specifically authorizing such assistance. A resolution like this would also bring funding, as well as international advisers who could reinforce the expertise of the Iraqi judges, prosecutors and defense attorneys.
Finally, the Iraqi Governing Council has deferred a decision on whether its tribunal could impose the death penalty until a permanent government takes over next summer. U.S. and Iraqi leaders favor such an option, while the international human rights community opposes it. This will likely become a major issue for debate when the new Iraqi government is formed in mid-2004.
Crimes against humanity? The International Criminal Tribunal option
Although the White House and Iraqi government appear to be leaning towards an Iraqi trial for Hussein, an international body of some sort may also try him. This option has appeal because of potential problems that may exist with trying Hussein in Iraq.
International human rights groups such as the Lawyer's Committee for Human Rights have suggested that the Iraqi tribunal lacks the institutional competence and credibility to conduct such an important trial. This could create problems for a fledgling Iraqi tribunal, particularly if Hussein decides to defend himself by attacking the legitimacy of the U.S.-installed Iraqi government.
Hussein will likely also seek to bring evidence of Western support for his regime before the first Gulf War, and may even try to call former heads of state like former-President George H.W. Bush to the witness stand. An infant Iraqi court may have difficulty managing such issues.
In the place of the Iraqi tribunal, some have suggested that Hussein be tried before an International Criminal Tribunal – similar to the ones used for Yugoslavia, Rwanda and Sierra Leone. Such a court could take one of many forms. It could resemble the formal Hague proceedings now being used to try former-Yugoslav leader Slobodan Milosevic. Or it could mirror the proceedings in Sierra Leone, which were a hybrid of international and local justice.
Such an approach might automatically lend Hussein's trial an air of international legitimacy, and avoid criticisms that this trial was being staged by Hussein's former enemies in Iraq. An international trial could also address the needs of other countries who have suffered at the hands of Hussein, such as Iran and Kuwait.
However, such a court's legitimacy might also be questioned by those who saw it as another form of external intervention in the domestic affairs of Iraq. Moreover, any Western-style court is likely to be criticized as "victor's justice", even despite its international nature.
Finally, and most importantly, the Bush Administration has strongly argued for a homegrown Iraqi justice in the case of Saddam Hussein. His rule hurt Iraqis the most, and a homegrown trial will give the Iraqi people some power over his fate and their future. Thus, the Iraqi Tribunal option is more likely to prevail than the International Tribunal option -- though it might be conceivable that both tribunals convene and hold proceedings relating to Saddam Hussein
American justice: Court-martialing Saddam Hussein's lieutenants?
There remains the possibility that Saddam Hussein – or, more realistically, his top lieutenants – could also be tried before an American military court martial. Iraqi soldiers and guerillas are alleged to have committed numerous war crimes in the conduct of both Gulf Wars, and U.S. law allows these personnel to be tried by an American military court for those actions.
Granted, it's unlikely that Hussein himself will be tried this way, given the Bush Administration's endorsement of an Iraqi trial for him. But this could be a realistic option for the leaders of the Fedayeen Saddam and Iraqi Army who used unlawful tactics in the war against the United States.
Another possible, though relatively unlikely, option would be the creation of new military commissions for the trial of Hussein's top military commanders. Such commissions were used after World War II to try German and Japanese commanders for their own acts, and the acts of their subordinates under the doctrine of "command responsibility." The U.S. Supreme Court has upheld the use of such commissions in Application of Yamashita, a 1946 case involving a Japanese general who was tried and executed after the war.
Additionally, federal law incorporates the international laws of war into U.S. criminal law, by way of a federal criminal statute. In theory, it's possible that Hussein and his henchmen could be tried in federal court under this statute, though, again, that's very unlikely.
Searching for answers: A truth commission for Iraq?
In addition to a criminal trial for Hussein, the idea of a Truth and Reconciliation Commission has recently surfaced among Iraqi leaders. Beyond adjudicating guilt or innocence, such a commission would simply seek to learn the fate of the thousands imprisoned or killed by the Hussein regime. Although Hussein's testimony would be invaluable to such an effort, the commission would probably focus more on Hussein's mid-level officers who actually carried out his orders. It is those people – policemen, record keepers, accountants, and managers – who would know best what happened to the missing and dead in Iraq, because they were the ones who managed Hussein's infrastructure of oppression.
Truth commissions have enjoyed varying degrees of success in countries such as South Africa and Rwanda. In order to be successful, they must have the power to subpoena evidence and witnesses, as well as immunize those witnesses who are worried about their own subsequent prosecution. It's not yet clear that Iraq will choose such an option, or whether Iraq will offer amnesty to former regime loyalists in exchange for information. But it's an idea that has worked well in other countries seeking to learn the secrets of their authoritarian past.
The long list of potential charges against Saddam Hussein
Now that we've canvassed the possible courts Saddam Hussein could appear before, what about the charges he would face?
American officials and others have long been gathering evidence about Saddam Hussein, in the hopes that he may someday be brought before a criminal trial of some sort. This effort included some attempts during the first Gulf War to seize Iraqi records of atrocities committed against the Kurds, as well as war crimes committed while Iraq occupied neighboring Kuwait. In the Clinton Administration, the effort expanded to include the construction of criminal case dossiers on a variety of incidents spanning the last thirty-five years of Hussein's rule.
The specifics have yet to be hammered out, but charges against Hussein will include charges relating to, at a minimum, the following topics:
• Treatment of Iraqi citizens. The Hussein regime was one of the most authoritarian governments of the Twentieth Century. It employed the full panoply of repressive measures – from secret police to summary executions – to maintain its iron grip on the population of Iraq. Hussein will likely face charges relating to the arrest, torture and execution of thousands of political opponents during his tenure as Iraqi leader.
• War crimes against Iran. The Hussein regime fought a brutal war against Iran between 1980 and 1988, a war thought to have cost millions of lives. During the course of that war, Iraq employed chemical weapons on multiple occasions, and committed various other war crimes such as the deliberate targeting of civilians.
• Use of chemical weapons against Iraqi Kurds. Since the Clinton Administration, the U.S. has been preparing intelligence dossiers on precisely what happened during the "Anfal" campaign of 1987-88, during which the Iraqi army used conventional and chemical weapons to wipe out 2,000 Kurdish villages, leaving between 50,000-100,000 dead. The images of Kurdish dead, who were obviously killed with chemical weapons, were broadcast around the world after this incident. Many human rights lawyers have argued that this act qualifies as "genocide" under the UN's Convention on Genocide, and therefore should be prosecuted by the international community. If an international trial ever takes place, this will certainly be one of the charges levied there.
• Ethnic cleansing in Iraq. Before the world coined the phrase "ethnic cleansing" to describe the horrors in the Balkans during the 1990s, Hussein had used many of the same tactics in Iraq to purge the Shiite population in the southern part of his country. Although largely secular, Hussein's Baath Party retained deep roots within the Sunni Muslim community of Iraq, and was bitterly opposed to Iraq's Shiite community. As ruler, Hussein used his power to ensure the Shiite community would never threaten him – mostly by imprisoning, torturing and killing its leaders.
• War crimes committed during the first Gulf War. Hussein invaded Kuwait in 1990 with the stated purpose of plundering its oil, but his forces did far more than that inside the country. Iraqi army units are thought to have pillaged vast fortunes from private homes and businesses in Kuwait. Certain units are also suspected of waging mass torture campaigns against Kuwaiti citizens, in which they used rape, electrocution, beatings, and execution to terrify the Kuwaitis trapped inside the country by the Iraqi invasion.
• State sponsorship of terrorism. It remains unclear whether Hussein had material links to al Qaeda, or whether he possessed weapons of mass destruction on the eve of our invasion. What is clear is that Iraq has a long history of supporting terrorists as an instrument of its own foreign policy, from Abu Nidal to Osama Bin Laden. Most recently, Hussein had offered thousands of dollars to the families of Palestinian suicide bombers as compensation for their dead relatives' final act. The International Convention for the Suppression of the Financing of Terrorism makes these acts unlawful.
• War crimes committed in the second Gulf War. The law of armed conflict sets out three main principles for nations engaged in war: necessity, proportionality of force, and distinction between combatants and non-combatants. During the second Gulf War, Iraqi forces employed a blend of unconventional tactics and terrorist tactics (such as suicide bombings at American checkpoints) to fight back when they found themselves unable to fight American and British forces on the open field of battle. Military theorists call these tactics "asymmetric", because they aim to strike where the enemy is weak. Notwithstanding their effectiveness, asymmetric tactics generally run contrary to established laws of war. Even if Hussein didn't specifically authorize these tactics, he can still be held responsible as the commander of the Iraqi army, under the doctrine of command responsibility.
Choosing the best kind of justice for Saddam Hussein
Ideally, the choice of where to try Hussein would be made by each of the governments with an interest in the matter – the Iraqis, Americans, Iranians, and others. Each of these nations has some interest in seeing Hussein brought to justice, and an Iraqi court alone may not serve all of their interests. Indeed, an international tribunal may not do so either.
But, in reality, serial trials of this sort are not likely. Just one trial will be enormously difficult to manage, let alone multiple successive trials in different jurisdictions.
Ultimately, the choice likely will be made by the government with the most power over the matter – the United States. American authorities captured Hussein, and they currently hold him. For all intents and purposes, the American-led Coalition Provisional Authority still runs Iraq, and will dictate the decisions to be made on behalf of the Iraqi people with respect to Hussein. It is all but certain, at this point, that Hussein will be tried by the tribunals set up last week by the Iraqi Governing Council.
Article 20 of the Iraqi tribunal statute states that "Everyone shall be presumed innocent until proven guilty before the Tribunal in accordance with the law." It seems generous that the Iraqis would extend that courtesy to Hussein, who refused to give it to the thousands he imprisoned, tortured or executed.
But if the Iraqis want to establish this rule as their guiding principle of justice, then Hussein may be both the hardest and best first case.
Phillip Carter, a FindLaw columnist, is a former U.S. Army officer who is now a third-year law student at UCLA, where he also teaches an undergraduate seminar on American law and terrorism.