Saddam Hussein’s capture is cause for rejoicing. Finally the specter of this brutal dictator has been lifted from the Iraqi people, their neighbors and the world. Few men have more blood on their hands or are more deserving of trial and punishment. By carefully presenting and condemning his atrocities in a court of law, we now have the opportunity to pay respect to his many victims and, perhaps, deter tomorrow’s would-be tyrants from embarking on a similar path of slaughter.
But what kind of tribunal should hear the case against the deposed despot and his henchmen? On that question, a debate is raging. The tribunal’s fairness will determine whether prosecution advances the rule of law in Iraq or perpetuates a system of arbitrary rule. The Bush administration says it has not yet decided on a venue for prosecution, but the first moves of its handpicked Iraqi Governing Council are not auspicious.
Saddam Hussein’s crimes were truly horrendous. Human Rights Watch’s intensive investigations over the last 15 years suggest that his government was responsible for the murder of some quarter of a million Iraqis, many now the occupants of the hundreds of mass graves scattered about the Iraqi landscape. They include some 100,000 Kurdish men and boys machine-gunned to death during the 1988 Anfal genocide, many after having been chased from their homes with chemical weapons; the 30,000 Shiites and Kurds slaughtered after the 1991 uprising; tens of thousands of Shiites killed during the 1980s because of their perceived sympathy for Iran; the so-called Marsh Arabs killed as the Iraqi government drained their habitat and destroyed their ancient culture, and many individual Iraqis of all faiths and ethnicities who were singled out, their lives ended, for real or perceived opposition to the regime. In addition, one must consider the thousands of Iranian soldiers killed by Iraqi chemical weapons, the countless atrocities committed during the invasion of Kuwait and the missiles launched indiscriminately at cities in Iran, Saudi Arabia and Israel.
To do Saddam Hussein’s victims justice, their plight should be recorded in a court of law and their perpetrators properly judged and punished. But on December 10, the Iraqi Governing Council, taking its lead from Washington, established a tribunal that is to be dominated by Iraqi jurists. Despite the superficial appeal of allowing Iraqis to try their own persecutors, this approach is unlikely to produce sound prosecutions or fair trials. It reflects less a determination to see justice done than a fear of bucking the Bush administration’s ideological jihad against any further enhancement of the international system of justice.
We know from experience in Rwanda and the former Yugoslavia that prosecutions of genocide or crimes against humanity can be enormously complex, demanding jurists of exceptional skill and sophistication. Such prosecutions require analyzing volumes of official documents, collecting sensitive forensic evidence from mass graves, presenting hundreds of witnesses from among victims and accomplices, and paying scrupulous attention to due process. To avoid being perceived as show trials, they call for highly experienced jurists of unquestioned integrity.
Saddam Hussein’s brutal and arbitrary justice system can hardly be expected to have produced such jurists. Prosecutions were typically based on confessions, often induced by torture. Serious criminal investigations, let alone complex trials, were virtually unheard of. Speaking to lawyers in Baghdad, my Human Rights Watch colleagues could not find anyone who remembered a trial lasting more than a day and a half. Even if one looks to Iraqi exiles or Iraqis from communities historically repressed by the Baath Party who remained in the country, it will be difficult to find jurists with the right combination of skills and emotional distance from the former dictatorship to produce trials that are fair — and seen as fair.
In light of these weaknesses, even the Iraqi Governing Council recognizes the need for international assistance. The question is, how much? The fully international criminal tribunals used for the former Yugoslavia and Rwanda are not ideal models because they have moved so slowly, the locales of their trials (The Hague and Arusha, Tanzania, respectively) have been too distant from the victims and they have allowed little participation by local jurists. A better precedent, most agree, would be the U.N.-backed special court set up to address the murderous, limb-chopping thugs of Sierra Leone.
The streamlined Sierra Leone court is based in that country’s capital and has enlisted significant participation from Sierra Leoneans, ensuring both greater resonance in the country and a better chance of leaving a local legacy of respect for the rule of law. But to ensure professional prosecutions and fair trials in a war-torn society, international jurists are clearly in charge — serving as the chief prosecutor (an American), the chief judge (an Australian resident in Britain) and the majority of judges.
Because it could draw its key personnel from a global pool of talent, a Sierra Leone-style internationally led tribunal for Iraq would be better able to secure experienced and fair-minded jurists than a court that must look only to Iraqis. Because its key personnel would be selected by the United Nations rather than Washington’s surrogates in Baghdad, such a tribunal would also more likely be seen as legitimate by all interested parties. And because its perspective would be international, it would more likely address crimes not only against Iraqis, but also against Iranians, Kuwaitis, Saudis and Israelis. The tribunal would conduct trials in Iraq, presumably in Arabic, and involve Iraqis as judges, prosecutors and investigators. But like the Sierra Leone court, it would be run by international jurists with proven records of overseeing complex prosecutions and scrupulously respecting due process.
So far, however, the Iraqi Governing Council has put forward only a parody of the Sierra Leone court. It would allow international judges to be appointed if necessary, and international prosecutors or investigators could serve as advisers. But the entire prosecutorial and investigative team would be Iraqi, as would, in all likelihood, a majority of the judges. This would not be an internationally run tribunal, but an Iraqi tribunal with international window-dressing.
In proposing such a tribunal, the Iraqi Governing Council is following the lead of the Bush administration, which, despite the obvious merits of an internationally led tribunal, adamantly opposes one. That opposition, however, is hardly guided by concern for the Iraqi people. Rather, the administration calculates that a tribunal of Iraqis selected by its appointed Governing Council would be less likely to reveal embarrassing aspects of Washington’s past support for Saddam Hussein, more likely to impose the death penalty despite broad international condemnation and less likely to enhance even indirectly the legitimacy of the detested International Criminal Court.
These self-serving reasons do not deserve our support. Iraq today has a unique opportunity to break with the arbitrary rule of its past. That requires making the trial of Saddam Hussein a positive precedent for human rights and the rule of law. But if the former dictator faces a kangaroo court, it will send a message that the new Iraq represents not a new way of ruling, just a new set of rulers. The stakes are too high — for Iraq and the region — to squander this opportunity. We must make sure that this prosecution is done right.