WASHINGTON, 19 January 2004 — They have a defendant: Saddam Hussein, who will have the right to remain silent but most assuredly won’t. They have a courtroom: A grand chamber Saddam originally used to showcase gifts from foreign dignitaries. And now Iraqi lawyers, with American officials lurking discreetly in the wings, must conduct one of the most earthshaking trials in modern history. Wish them luck. Putting a toppled regime on trial is a mind-bending mix of legal principle and political necessity. It’s a special kind of judicial theater, with both prosecution and defense playing out political objectives that go far beyond the determination of guilt or innocence.
“Justice insists on the importance of Adolf Eichmann,’’ wrote political philosopher Hannah Arendt, admiring the professionalism of the Israeli judges presiding over Eichmann’s 1961 trial. “On trial are his deeds, not the sufferings of the Jews, not the German people or mankind, not even anti-Semitism and racism.’’
Justice may insist on judging only Saddam’s deeds, but every courtroom action must keep an eye toward Iraqi politics. For Saddam, the trial is a chance to speak to the whole planet — and to whip up hatred of his American enemies. For President Bush’s administration, it’s a chance to change the topic from undiscovered weapons of mass destruction to tangible human rights violations. And for the fledgling Iraqi government, it’s a chance to break with the past and show itself as a more democratic kind of regime.
Nothing about the trial will be simple. It won’t be easy to find Iraqi judges untainted by association with Saddam’s totalitarian state. Prosecutors will require crash courses in the fine arts of war crimes law and investigations. Then there’s the Pentagon’s recent announcement that it is treating Saddam as a prisoner of war. Under the Geneva Conventions, POWs must face an international tribunal or a tribunal of the occupying power. Saddam’s status must be resolved to remove any doubt that the Iraqi court — a far better venue, given world opinion about the US occupation — has jurisdiction. Saddam will most likely stand trial under an Iraqi Governing Council statute passed days before he was dragged from his hole. The statute creates a special independent Iraqi court, with jurisdiction over genocide, crimes against humanity and war crimes committed by Iraqis from July 17, 1968, until May 1, 2003.
Definitions of those specific charges come out of standard international law — for the most part, they were literally cut-and-pasted from the establishing documents of the International Criminal Court, which the Bush administration opposes. The Iraqi Governing Council picks the prosecutors and judges (who can be non-Iraqi). The statute requires that the prosecutors, all Iraqis, be assisted by non-Iraqi advisers; this allows international experts with valuable experience from the war crimes tribunals for Rwanda, Sierra Leone and the former Yugoslavia to ensure that Saddam’s trial meets international legal standards.
Saddam gets the usual defendant rights: Presumption of innocence, public trial, cross-examination of witnesses, the chance to appeal. He can defend himself, or hire a lawyer; if he can’t afford one, the court will pay for one.
The prosecution will seek to prove beyond a reasonable doubt that Saddam ruled a host of murderous bureaucracies that became instruments of torture and death for hundreds of thousands of Iraqis. To link Saddam and the mass graves, prosecutors will work their way up from eyewitnesses to platoon captains to commanders to senior politicians. Saddam could be convicted for either ordering atrocities or — once it has been shown that Iraqi security forces were systematically committing atrocities — not taking steps to stop them. Saddam is all but certain to use his last moments on the world stage — and, since the tribunal allows for the death penalty, probably his last days on Earth — for political satisfaction. His defense will almost surely be in the defiant tradition of former Serbian President Slobodan Milosevic, whose current rants in The Hague against purported Croatian fascism, Bosnian Islamic fundamentalism and American imperialism are meant to score points at home in Serbia.
Saddam’s grandstanding is easy to imagine: It was really the Iranians who slaughtered the Kurds in 1988; Iranian forces used poison gas, too; Kuwait is the 19th province of Iraq; UN sanctions against Iraq were a crime against humanity; the Reagan administration backed me throughout. Saddam will appeal to Iraqis’ sense of grievance over soldiers and civilians killed by America in two wars and to a wider Middle East where resentment of America runs deep. None of this particularly helps Saddam’s legal cause — but that isn’t his goal.
— Gary Bass, an assistant professor of politics and international affairs at Princeton, is the author of “Stay the Hand of Vengeance: The Politics of War Crimes Tribunals’’ (Princeton University Press).
(To be continued)
