LONDON, 19 December 2003 — We got him — but what do we do with him? Debate over the future of Saddam Hussein began within minutes of his capture and already bids fair to set “internationalists” who want him tried by an international tribunal against “unilateralists” who favor an Iraqi trial. The issues are important but the debate is confused.
First, a trial of Saddam is essential both for Iraq and for the international community. There can be no room for the “summary justice” that, ever since the overthrow of the monarchy in 1958, has consigned most of Iraq’s rulers to the gallows or the firing squad without even the pretence of a trial. Punishment without trial is not justice, only revenge, and to accord Saddam the “Ceausescu treatment” would be to deny justice to his victims as much as to himself.
Second, a trial must embrace the whole range of the charges made over the 35 years of Saddam’s power. Some of these involve the treatment of Iraq’s neighbors. Both the Iran-Iraq war and Iraq’s occupation of Kuwait were characterized by war crimes and crimes against humanity, and those states have a legitimate interest in seeing that Saddam is called to account.
Yet it is the atrocities that Saddam is accused of perpetrating against his own people that should form the greater part of any indictment. The disappearances, torture and murder of opponents, the use of chemical weapons against Kurdish villagers, the brutal suppression of the 1991 insurrections — all took place against Iraqis.
Third, any trial must be fair and be seen to be fair. While no trial will satisfy everyone, a trial that meets international standards will enjoy a legitimacy denied to one that patently disregards those standards. That means that, wherever it is held, the trial must be conducted by a properly constituted tribunal whose procedures meet the requirements of international law.
In particular, the rights to due process guaranteed by the international covenant on civil and political rights 1966 must be respected. It is with those priorities in mind that the debate on the form of trial should be approached. For some, the answer is that a trial must take place before an international tribunal. That cannot be the new international criminal court (ICC). Irrespective of the controversy between the US and Europe about the ICC, the simple fact is that it lacks jurisdiction. Iraq is not a party to its statute and, even if it were, article 11 of that statute precludes the ICC from exercising jurisdiction over crimes committed before the statute entered into force last year. Nor does any other existing international tribunal have jurisdiction, so one would have to be specially created.
But there are also powerful arguments for not taking such a course. Saddam needs to be indicted first and foremost in respect of what happened in Iraq, and for such charges Iraq is the natural forum.
If the trial were to take place before an Iraqi court, that would not mean that its scope would be confined to offences under Iraqi law. The new tribunal for crimes against humanity established by the governing council of Iraq last week has jurisdiction over a list of crimes taken almost verbatim from the statute of the ICC. It cannot be assumed that a trial in Iraq would not meet international standards of due process. It is patronizing for lawyers in the rest of the world to leap to the conclusion at this stage that the Iraqis are incapable of staging a fair trial.
Perhaps the most important consideration, however, is that, as the ICC statute makes clear, it is not only the right but the responsibility of each state to exercise its criminal jurisdiction over crimes under international law committed by its citizens. That is a central feature of national sovereignty. It is paradoxical that some of those who have been loudest in calling for the early return of sovereignty to the people of Iraq are unwilling to see this element of sovereignty returned at all.
Trial in Iraq undoubtedly presents serious problems. The Iraqi judiciary has no experience of holding such a trial (though few judges elsewhere have had to do so either). The need for fairness has to be met by guarantees of some kind, perhaps in the form of international participation in the court. The death penalty — suspended by the coalition provisional authority but capable of reinstatement by a new Iraqi government — casts a shadow over proceedings and may prevent other states from extending assistance. But if these problems can be overcome, a trial in Iraq offers both justice and the chance for Iraq to break with its past.
