Bringing Saddam Hussein to Justice

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.

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.