There’s a possibility that by October-November 2004 the capture of Saddam Hussein,
which today looks like such a valuable political ‘prize’ for the Bushies,
may look like a difficult political liability. The central question
of who is to control the process of trying and punishing him may have
become so hotly contended by then that many in the administration might wish
that rather than capturing him alive, the forces that stormed his bunker
had somehow allowed him to “be shot while fleeing arrest”.
Hey, they might even come to wish, rather wistfully, that they could simply
have handed him over to the jurisdiction of an “International Criminal Court”
which could take all the decisions around trying the guy–and all the associated
political heat–quite out of their hands!
The “who gets to do it” question around the trying of Saddam Hussein is by
no means as easy or straightforward as it looks…
As the occupying power inside Iraq, the US does have the formal right
and responsibility to control the process (though in doing so, it certainly
has obligations under the 4th Geneva Convention to give him decent treatment
in custody, and a fair trial.) Meanwhile, the mainly puppets of the
Iraqi Governing Council have been eager to strut their political stuff
by establishing their own war-crimes court in Baghdad, a venture I wrote
about here on December 10. Many IGC members, and their backers in Washington,
can be expected to want this court to try Saddam– in an attempt to boost
their own domestic legitimacy inside Iraq at a time of, presumably, elections
or caucuses or whatever political things are scheduled to take place inside
the country throughout 2004.
For their part, the good-hearted folks of the international human-rights
movement are eager to see at least a strong international “component” in
the body that tries Saddam. Some are urging the establishment of a
special, mixed, national-international court for the purpose of trying
Saddam and his top henchfolk, like the one created for/in Sierra Leone.
This interesting suggestion raises problems in both aspects, however. The
“international” component in such a court would, in the view of the big rights
organizations, have to be provided through a resolution of the UN Security
Council. Is the Bush administration likely to hand over any control
of the trial of its “ace of spades”, Saddam, to the UN at this point? And
come to think of it, would the other members of the Security Council actually
want to pursue this option? Every single one of the Permanent Five,
after all– not just the US– is likely to be intensely embarrassed by facts
that Saddam might bring up in the course of anything that looks at all like
a fair trial: facts about the past collusion of their governments in many
of his atrocious or otherwise potentially prosecutable actions…
And then, in any mixed court, the identity of the “local” component of course
needs to be defined. At present the only contender for this role is
the (mainly puppet) IGC. Do the non-US members of the Security Council
want to strengthen the role of the IGC by according it this power? Again,
unlikely.
Then, moving right along in the growing list of bodies that might want to
control the trying of Saddam Hussein, we have the news that the government
of Iran has announced its intention to seek his extradition so that he
might stand trial there– and so that they might expose all the dimensions,
including the international dimesnions, of the massive and costy military
assault he launched against their nation in September 1980.
The Iranians actually have a very strong prima facie claim to be the primary
prosecutors of Saddam Hussein. Uncountable hundreds of thousands of
Iranians lost their lives during the eight long years of that war. Maybe
500,000? The launching of the war itself, which was a war with the
express aim of effecting “regime change” in Teheran, was a massive “crime
against the peace” (a category recognized, but not defined, in the ICC’s
Rome Treaty of 1998.)
And then in the course of waging that war the Iraqi forces committed numerous
large-scale war crimes against Iranians including the use of chemical weapons
a number of times against Iranians— that was in addition to the one
proven time they used CW against Iraqi nationals, in Halabja.
Plus, as compared with the IGC, the Iranian government does have a well-established
and functioning legal system that would be quite technically capable of handling
such a case…
So, talking of external governments that might seek to extradite Saddam to
try him, we should mention the Kuwaitis, who also have a huge prima
facie case against him, and a functioning legal system. Don’t, however,
hold your breath for the timid (mainly puppet) Kuwaitis to lodge such a request.
And, still moving along, we should not forget the extraordinary possibilities
the US courts give to individual plaintiffs who want to file suit against
foreign malefactors. This is a process that, because it is largely
out of the control of the US government, most US administrations are very
wary of, or even seek to oppose. It most likely would not be
the first preference of the Bushies to have any aspect of the Saddam case
tried in a domestic US court. But we cannot preclude the possibility
that one or more individuals might seek to bring such a case against him
now that he’s in US custody…
Even after running through all these possibilities of bodies that might end
up running the trial of Saddam Hussein, my money is still strongly on the
US keeping tight control of the process, though perhaps sub-contracting some
small role in it to the IGC if that seems politically wise to Jerry Bremer
at the time. I think the Bushies will insist on keeping control of
the process for two reasons:
(1) they would hope to be able to tightly control the temporal jurisdiction
of the court and all aspects of its rules of evidence in such a way as to
minimize Saddam’s ability to bring into the case all the facts of US collusion–
should I say, Donald Rumsfeld’s collusion–with his heinous schemes against
Iran in the 1980s; and
(2) they get to control the all-important timing aspects regarding the working
of the court. I can see Karl Rove trying to work this one out for maximum
effect: How about scheduling it so that a tightly-controlled but globally-publicized
initial appearance by Saddam occurs in around mid-October 2004, and then
after the lengthy charge-list against him is read out, the court goes into
another phase of private procedural hearings before the ex-dictator can be
allowed to say anything substantial of his own in court?
It’s true that as the incumbent in the US and the occupying power in Iraq,
the Bush administration has enormous power to set schedules and to try to
control the Iraq-affairs agenda in the run-up to next November’s election
in the US. This is evidently their main concern when they come up with
schemes for some rapid and above all visible form of “handover of power”
to Iraqis to occur sometime next summer.
However, not everyone in Iraq is as happy to go along with the Bremer/Pentagon
timing of developments inside their country as the IGC. We have already
seen how steadfast Ayatollah Sistani and other significant forces in the
Shi-ite community have been in resisting Bremer’s calls for a jury-rigged,
highly flawed version of political “Iraqification”. We cannot necessarily
expect the Shi-ites–who along with the Kurds constitute the two communities
inside the country who suffered the most under Saddam’s rule–to easily go
along with Bremer’s timetables and other plans regarding the Saddam trial.
The Iraqi Shi-ites, like their co-religionists just across the border in
Iran, have a massive grievance against Saddam which would need to be plainly
heard in any meaningful trial against the man. I am not sure if they
would support the idea of him being tried by Teheran (or perhaps, in some
form of a mixed Iranian-international court in which they and Saddam’s other
Iraqi victims could have a full say?) But if they did give active
support to some form of a Teheran-based trial against him, their pressures
in this regard might be quite sufficient to stymie all of Bremer’s best-laid
plans…
No doubt about it: the trial of Saddam Hussein has many, many political aspects
to it. It certainly won’t be the simple, gloating “victory lap for
the Coalition” that many in the US media now think it may be.
Dear Helena
You write “As the occupying power inside Iraq, the US does have the formal right and responsibility to control the process…”
This is incorrect.
Article 70 of the Fourth Geneva Covention prohibits the Occupying Power from exercising penal jurisdiction over occupied territory in respect of acts committed before the beginning of the occupation.
The CPA has no authority to try Saddam for crimes against the Iraqi people, except perhaps those committed in the context of an international armed conflict.
The CPA also has no authority to substantively alter the criminal law of Iraq.
Iraqi criminal law does not presently include international crimes such as genocide, crimes against humanity or war crimes.
Hence, the statute “legislated” by the IGC which purports to create jurisdiction to try these international crimes from 1968 onwards exceeds the authority of the occupying power. Only a sovereign government can change the criminal laws of the country so radically, and retrospectively apply international criminal law.
In its present form, the Iraqi Special Court amounts to “American justice with an Iraqi face.” While the judges and prosecutors will be Iraqi, the case preparation, real investigative capacity and most importantly, prosecution strategy, will be set by the Americans. The “Iraqi-led” prcess which the CPA claims to support is in fact a dissimulation for an American controlled trial of the old-regime.
The question for the rest of us is, is there not a real risk that this will be (accurately) perceived as victor’s justice, and what effect will it have on Iraqi perceptions of the trial process?