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America Is Not Above the Law In Bringing Saddam to Justice

The United States has turned over to Iraq “legal custody” of Saddam Hussein. He is apparently headed for a trial in an Iraqi courtroom. Unlike Slobodan Milosevic, whose trial before a highly qualified international criminal tribunal resumes this week, the quality of the justice Saddam will receive is very much in question.

The United States made it clear from the moment it took Saddam into custody that it would reject the creation of an international tribunal to try him in favor of a local court staffed by Iraqis only. The United States even rejected what has come to be known as a “mixed” tribunal, consisting of both local judges and international jurists with expertise in international law and in the procedures of war crimes trials.

Instead it backed an “Iraqi Special Tribunal” with Iraqi judges only — headed by Ahmed Chalabi’s nephew, Salem, who is a solicitor from London with no trial experience at all. Due process protections are flawed, chain of custody issues with evidence already have emerged, and the death penalty, abolished in every Western democracy in the world except the United States, will be permitted.

The Bush administration’s rejection of an international tribunal to try Saddam is consistent with the war it has been waging for nearly four years against international justice itself.

Supporters of presumptive Democratic presidential candidate John Kerry worry, and properly so, about what will happen to the U.S. Supreme Court if President Bush wins another term. But they — all of us, actually — also should be concerned about the rule of law internationally, which this administration has regularly flouted. Until the recent prison abuse scandals in Iraq and elsewhere, and Monday’s Supreme Court decision rejecting most of the administration’s arguments on detention of so-called enemy combatants, it had paid little if any political price for its determined disregard of international norms.

International justice began at Nuremburg, where, for the first time, individuals were held accountable for war crimes. The International Criminal Court is the continuation of that legacy: a permanent tribunal with the power to hold individuals accountable for genocide, war crimes and crimes against humanity. Ninety-four countries so far are members, it has a staff of judges and prosecutors of great distinction and it has just launched its first investigation into war crimes in the Congo.

The ICC was not an option for Saddam because it has no jurisdiction over crimes committed before July 1, 2002. The court that is trying Milosevic was temporary, and its jurisdiction was limited to the former Yugoslavia.

Since the Bush administration took office in 2001, not only has it refused to join the ICC, it has also been waging a ferocious campaign to kill it. Under the American Servicemembers’ Protection Act, passed in 2002, the United States is authorized to punish countries that support the ICC by depriving them of military aid. (The rest of the world knows the law as the “Hague Invasion Act” because it also authorizes the United States to invade the Netherlands to free captive Americans held by the ICC.) The United States also has bullied and bribed 90 countries into guaranteeing American immunity from ICC jurisdiction, even though some of those countries had to disavow their own ratification of the ICC to do so.

And if that weren’t enough, for the last two years the United States has successfully demanded from the Security Council, as the price of American participation in United Nations operations, immunity from ICC jurisdiction for American troops and contract personnel — making America the only country in the world to demand such immunity.

This administration has committed assaults on international justice that are hardly reported at all. For example, over the last three years, the United States has ignored rulings of the International Court of Justice (which tries nations, not individuals). In separate rulings in 2001 and 2003, the Court ordered the United States not to execute Honduran, German and Mexican nationals held in American prisons who had been denied their rights under the Vienna Convention. The United States executed them anyway.

In a federal court in Brooklyn last month, the Justice Department told the district court judge that even though the defendant, a Dominican national, had been extradited by the Dominican Republic on the condition that the death penalty not be imposed, the United States did not regard that condition as binding. The judge allowed as how the federal court would, in accordance with long-standing custom among nations, “honor the limitation” even if the Justice Department would not. Experts were left wondering, however, if the Justice Department would take the same position in future cases, and whether more compliant judges would let them get away with it.

The United States had been getting away with pretty much all this without public outrage — until the prison abuse scandal in Iraq. In the midst of it, the United States asked the Security Council for a third annual renewal of its immunity from ICC prosecution.

Timing can be everything. What passed easily in 2002 and 2003 was exposed in 2004 as the affront to the rule of law it had always been. The usually mild-mannered secretary general of the U.N., Kofi Annan, sputtered that this move was “of dubious judicial value.” Amid collapsing international support, the United States was compelled to withdraw its request.

The United States lost another case in March before the International Court of Justice, similar to the ones it lost in 2001 and 2003. Mexico complained that the United States was holding on death rows in 10 states 54 of its nationals who had not been afforded their right to consult consular officials prior to trial. Although the United States was widely expected again to ignore an adverse ruling, it is now July and all the Mexicans are still alive.

Perhaps the United States is holding back because the Abu Ghraib spotlight is on. If so, we can make a difference if we ensure that it stays on, and that we hold this administration — and the next — accountable for obeying the rule of law.

Kathleen Peratis, counsel to the New York law firm Outten & Golden LLP, is a board member of Human Rights Watch.

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