Bringing Saddam Hussein to Justice

July 7, 2004
By J. Peter Pham

Barely twenty-four hours after the legal custody of Saddam Hussein was transferred to the interim Iraqi government, the former president and eleven of his closest collaborators were in a courtroom to hear the charges pending against them. That Saddam needs to appear before the bar of justice goes without saying—no one seriously disputes the extent and the gravity of the crimes committed by the Ba‘ath regime during his nearly three decades at its head, of which the seven preliminary counts read to the deposed dictator represented but an infinitesimal fraction. However, there will be more riding on the judicial proceedings than just the fate of the former ruler. For the United States, absent the discovery to date of any significant cache of the weapons of massed destruction that Saddam was thought to have, a trial will be an opportunity to present evidence justifying the war on the principle of “humanitarian” intervention as well as a chance to show off a credible model of a war crimes tribunal unlike the international courts that have frustrated the Bush Administration. For the new Iraqi government, the proceedings offer a chance to enhance its legitimacy at home as well as its standing abroad. And, perhaps most importantly, if properly handled, the Iraqi people will have a chance to confront their past.

The stage was set for the current proceedings when the now-dissolved Iraqi Governing Council adopted the Statute for an “Iraqi Special Tribunal” (IST) on December 10, 2003, just three days before Saddam was captured in his famous spider hole. The Statute—assuming the new Iraqi government decides to maintain it—provides the legal foundation for a court, independent of other Iraqi government bodies, having ratione temporis jurisdiction over crimes committed by Iraqi nations or residents between July 17, 1968, and May 1, 2003, the period of the Ba‘ath Party’s rule. The IST’s jurisdiction ratione materiae covers the international crimes of genocide, crimes against humanity and war crimes (art. 11-13), as well as crimes under Iraqi law of manipulation of the judiciary, public assets and “the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country” (art. 14). The IST will have an appellate chamber with nine judges, trial chambers of five judges each and up to twenty investigative magistrates (plus up to ten “reserve” investigative magistrates). The Iraqi government may, at its discretion, appoint non-Iraqis to the IST as judges (art. 4). The first seven investigative magistrates and four prosecutors were appointed on April 20 by the Governing Council, although their identities have been kept secret out of concern for their safety—even the magistrate who read the charges to Saddam did so with his back to the press pool photographers. Salem Chalabi, a graduate of Northwestern University School of Law and nephew of Iraqi National Congress leader Ahmed Chalabi, was appointed the IST’s director of administration.

With this skeletal framework in place, the now-sovereign Iraqi government under president Sheikh Ghazi al-Yawar and prime minister Iyad Allawi needs to decide—ideally in consultation with its sponsors in the international community—what exactly it realistically hopes to accomplish by trying Saddam before the IST and to outline a strategy of how go about it. It should be recalled that the omission of this apparently fundamental exercise has been the bane of the four currently operative ad hoc international criminal tribunals, the ICTY, ICTR, SCSL, and the East Timor Serious Crimes Unit. In the absence of a clearly articulated and realistic strategy, the exaggerated assertions by international law advocates and corresponding inordinate expectations by the public will only result in disappointment, if not increased hostility.

The prosecution of Saddam Hussein and other leading Ba‘athists for the horrors they wrought will neither create a new international moral and legal order, prevent future abuses, nor lead to any grand transformations across the greater Middle East. A more realistic attitude was that taken by chief prosecutor at Nuremberg, Justice Robert Jackson, in his opening statement when he acknowledged that “personal punishment, to be suffered only in the event the war is lost, is probably not to be a sufficient deterrent to prevent war.” Rather than spouting the expansive claims of some of his successors as international prosecutors, Jackson saw his role as the more modest—but no less monumental—task of “establish[ing] incredible events by credible evidence” with “such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom…can arise among informed people.” A similar vision ought to inform the IST’s work.

Compiling evidence. Documentation of the crimes of the Ba‘athist dictatorship will contribute to establishing a historical record for the future. Trials in and of themselves are exercises in partiality: prosecutors will emphasize the strengths of their case and downplay other facts, defendants will tell their version. A more complete record, however, can eventually emerge if care is taken now to collect evidence while events are still in recent memory, physical evidence, and international resources available. In the shorter term, organization of evidence of Saddam’s crimes will help avoid the delays—to say nothing of the costs—that plagued the start-up of the ICTY in the 1990s. While U.S. government officials, including teams of experts from the Departments of State and Justice, are already assisting the Iraqis in this endeavor, this is a task that private Iraqi initiatives like Professor Kanan Makiya’s Iraq Memory Foundation as well as international non-governmental organizations should be invited to contribute to. As an added benefit, a broad involvement will allow the new regime to forge ties with international civil society as well as strengthen the country’s own independent organizations.

Outreach. A crucial task will be to inform the Iraqi people – and, ultimately, the peoples of the other countries in the region – of the IST’s purpose, plans and, insofar as possible, timetables. Without the legitimization that can come only from Saddam’s victims, the work of the Iraqi tribunal is for naught. The ICTY, for example, while effective at reaching out to the Western governments who footed its bill and the Western media, which publicized its work, failed miserably at communicating to the peoples of the Balkans. Consequently, the ICTY lacks credibility among many in the region and has contributed little to reconciliation between Serbs and other groups. The United Nations bureaucracy did no better with ICTR; the Rwandan government that initially proposed it ended up casting the only vote against the Security Council resolution authorizing it. In contrast, the SCSL expended considerable efforts on town hall meetings throughout the West African country and other efforts at outreach and thus enjoys wide support from ordinary Sierra Leoneans.

Establishing an adequate, but clearly delimited defense. The ultimate vindication of the trial process will be that it affords Saddam and his collaborators the due process that they denied so many others. Hence, every effort must be exerted to assure defendants adequate representation. In this regard, lessons are to be learned from the experience of the other ad hoc war crimes tribunals. The ICTR has been plagued by both the lack of surviving Rwandan attorneys willing to represent génocidaires and the hourly fee system – which consumes more then $10 million annually – that gave such lawyers who participated in the proceedings every incentive to drag them out. The ICTY, on the other hand, has witnessed the legal shenanigans of Slobodan Milošević, himself a lawyer, whose case could conceivably run for several more years; it took the prosecution nearly three calendar years from the defendant’s first appearance to present its case and the former Yugoslav president will almost certainly turn the defense case into a political show for consumption back in Belgrade. Saddam’s family has already hired, among others, the high profile French attorney Jacques Vergès, whose previous clients have included Nazi collaborator Klaus Barbie and the terrorist known as “Carlos the Jackal,” to defend him. Saddam and his eventual legal counsel are owed a fair trial, but they are not entitled to hijack the judicial process, much less to do so at the expense of the Iraqi people and the international community.  Fair, but firm, guidelines will need to be set. If Saddam does not deserve a kangaroo court, neither do the people of Iraq deserve a local version of Judge Lance Ito’s opera buffa courtroom. And if the initial court appearance is any indication, Saddam – himself a law school graduate – is certainly capable of turning the trial into a political circus with his defiance.

Streamline the tribunal process. There is no inherent contradiction between a defendant’s right to a due process and the interest of justice – to say nothing of exchequer – in a streamlined process. Given the immediate need of the new Iraqi government for legitimization as well as the demands of the country’s long-oppressed citizens for justice, the notoriously inefficient and costly modus operandi of the international criminal tribunals should be avoided at all costs. Plodding along into what is now its second decade of its existence, the Hague-based ICTY presently employs 1,238 persons from 84 countries and costs over $270 million annually. Ten years after it was established, the ICTR has handed down fifteen judgments, involving some twenty-one accused. During this time, the tribunal, based in Arusha, Tanzania, and staffed by 872 individuals from more than eighty countries, was spending about $170 million annually, a sum roughly equivalent of the annual revenues of the Rwandan government. The SCSL might seem like a comparative bargain at $58 million per annum for the dozen defendants it is dealing with, but it could still be more efficient. 

Debating sentences. The Statute of the IST is rather ambiguous about sentencing guidelines for defendants who are convicted, thus reflecting a flaw that has plagued both the ICTY and the ICTR. Salem Chalabi has held out the possibility of the death penalty, although it was placed in abeyance during the Coalition Provisional Authority’s stewardship. However, actually imposing the death penalty would be viewed negatively by many foreign governments, international organizations, and NGOs that oppose capital punishment and would, undoubtedly, poison their relations with the new Iraqi government. On the other hand, removing the death penalty from the IST’s jurisdiction would be manifestly unjust if it resulted in major offenders being given prison sentences while relatively low-level defendants who will be tried by other Iraqi courts faced death. Furthermore, were the likes of Saddam Hussein actually kept in long term custody, he would no doubt prove a serious security risk for whatever power had the onerous task of actually imprisoning him. There is no easy resolution to this dilemma, but the question needs to be addressed rather than deferred.

Inviting international cooperation. Much has been said in recent months about the need to involve the international community in the task of rebuilding Iraq. The IST is an excellent occasion to put that principle into practice, especially if the tricky question of the death penalty can be dealt with. Not only will international cooperation bring much needed expertise to the process – it goes without saying that the resources of the post-Saddam Iraqi judiciary are rather meager – but will lend a certain legitimacy to the process. Governments can contribute not only jurists but hard currency to pay for what will undoubtedly be an expensive undertaking. International human rights NGOs can provide valuable support with the forensic and documentary phases of the judicial inquiry as well as a certain protection for the legal rights of defendants. In Sierra Leone, for example, the administrative aspects of the Special Court are the responsibility of a management committee on which the representatives of the principal donor nations (including the U.S., Britain, Canada, the Netherlands, and Nigeria) sit alongside those of the Sierra Leonean government. The registrar of the SCSL also holds regularly schedule “stakeholder meetings” involving senior court officials and representatives of international and local NGOs in order to request help with particular areas as well as to inform them of developments.

With its assumption of sovereignty, the interim Iraqi government also assumes many burdens, not the least of which is the relatively short eighteen month mandate that it has been given to oversee the election of permanent authorities and write a new constitution. However, in the long term, few tasks will be as significant for the Iraqi leaders – and for the interests of their U.S.-led protectors – as bringing Saddam Hussein and his closest collaborators to justice. While it is but one step on the long road of establishing the rule of law in the country, the tribunal can help the process along by legitimizing the overthrow of the Ba‘ath regime by holding its leading exponents to account and creating a credible history that acknowledges the past. While there will no doubt be missteps along the way, with conscious effort and attention to the mistakes of the recent past, these can be minimized. If so, there might be hope that justice will indeed prepare the ground for peace in the birthplace of Hammurabi, who by his law, humanity’s oldest extent written legal code, sought to “give the protection of right to the land, do right, and bring about the well-being of the oppressed.”  

Dr. J. Peter Pham, international lawyer and former diplomat, is the author, most recently, of Liberia: Portrait of a Failed State (Reed Press). He has just completed a book on the Sierra Leonean civil war and the post-conflict role of the Special Court.