Hybrid Justice for Hussein

(History News Service)

January 7, 2004
By Nikolas Gvosdev

From Baghdad to Washington, from Teheran to Paris, the world agrees:

Saddam Hussein should be held accountable for his crimes. But who should Saddam answer to -- a domestic Iraqi court or an international tribunal?

Washington wants to avoid creating something like the Nuremberg tribunal, convened by the victorious Allies after World War II to hold Nazi leaders accountable for "crimes against humanity." Having declined to ratify the 1998 Rome Statute creating the International Criminal Court, the United States does not want now to set yet another precedent for a domestic leader to be tried by an international institution. It fears that efforts to establish an international judicial system will erode national sovereignty, usurp domestic courts and end up limiting America's freedom of action on the global stage. In a world where many countries oppose U.S. actions, an international court that today puts Saddam Hussein on trial might some day seek to put George W. Bush in the dock.

Instead, the Bush administration would prefer that Hussein face a domestic court. There are plenty of recent precedents -- from South Korea to Mexico -- where former leaders have been brought to account for misdeeds committed while in office. But there are obstacles to trying Saddam before a domestic Iraqi court. During Hussein's time, what pleased him had the force of law. It's not clear what Iraqi statutes he would be charged with violating.

Focusing on Hussein's domestic transgressions throws the spotlight on the extent to which many Iraqis acquiesced in the dictator's policies and may impede efforts to create a new and stable regime.  (The Iraqi Governing Council wants to create a South Africa-style Truth and Reconciliation Commission to address this concern.) It also runs the risk of polarizing relations between Sunnis, many of whom benefited from Hussein's actions, and Iraq's Shiite and Kurdish populations, who suffered severely under his rule. If the goal is to discredit Hussein's tyrannical regime, a judicial process that appears to be nothing more than institutionalized vengeance on the part of the latter two communities will fail.

Proponents of the Nuremberg approach point to the successful precedents of creating international tribunals to try persons suspected of war crimes in the former Yugoslavia and in Africa. These courts were created precisely because it was believed that local courts would be unable to effectively hold perpetrators to account.

Indeed, in June 2001, the United States demanded that a democratic Serbian government extradite Slobodan Milosevic to the war crimes tribunal in The Hague, even though local courts were preparing to try the former Yugoslav leader. The West wanted to emphasize Milosevic's violations of international norms -- ethnic cleansing and war crimes in Bosnia and Kosovo during the 1990s -- rather than Milosevic's internal misdeeds --  corruption and dictatorial rule.

Because Milosevic's reputation has been enhanced at home rather than tarnished by having him tried by "foreigners" instead of his own people, the United States now prefers that Hussein be tried by Iraqis to prevent him from acquiring the status of a martyr. Moreover, focusing on Hussein's violations of international law -- for example, using chemical weapons against Iran -- might lead to embarrassing revelations about how the West supported Saddam as a bulwark against revolutionary Iran during the 1980-1988 war, even providing the infrastructure and expertise necessary to manufacture such weapons.

Yet Saddam's international behavior cannot be ignored. After all, the justification for the coalition invasion of Iraq was that his regime posed an immediate threat to other nations -- not that he was a domestic tyrant. So the best solution is to create a hybrid court -- constituted as a domestic tribunal, but with non-Iraqi participants and advisers -- a solution being advanced by Richard Goldstone, a former South African constitutional justice who served as the first prosecutor for the Yugoslav and Rwanda war crimes tribunals.

A hybrid tribunal would allow Iraqis to take the lead in judging the fallen dictator but provide the judicial expertise Iraq lacks after three decades of Hussein's tyranny. Unlike an international tribunal, it would respect Iraqi sovereignty.  Unlike a domestic court, it would have jurisdiction to adjudicate his treaty violations.

It is critical that both Hussein's domestic and international crimes be brought to light. A mixed court offers us the best way to achieve this.

Nikolas K. Gvosdev is editor of the online weekly, In The National Interest.  This article first appeared in History News Service.