WASHINGTON, 20 January 2004 — In the first part of this article published yesterday I said Saddam’s grandstanding is easy to imagine. He will blame Iranians for the slaughter of the Kurds in 1988; he will argue that UN sanctions against Iraq were a crime against humanity. He will also appeal to Iraqis’ sense of grievance over soldiers and civilians killed by America in two wars. None of this particularly helps Saddam’s legal cause — but that isn’t his goal.
Even a toppled dictator can be tremendously imposing in court. Milosevic still has loyal goons in Serbia who send him secret police files to help him cross-examine witnesses, many of whom have been visibly wary of him.
Iraqi judges, prosecutors, court officials and witnesses could all face intimidation or worse from the remnants of Saddam’s security apparatus. Saddam can even remind the judges that he was the one who put them on the bench.
“Once the Iraqi exiles escaped Saddam’s reach, it got hard for them to recall just how big the guy was,’’ says Noah Feldman, a former senior constitutional adviser to the Coalition Provisional Authority and the author of “After Jihad: America and the Struggle for Islamic Democracy.’’ Feldman adds: “Unlike Milosevic, he really did in a deep way enjoy popular legitimacy for 30 years. It’s not that they liked him, but he was the man in charge.’’
But the court will not be inclined to shut Saddam up. “You damn well better not cut him off, or deny him the right to advocate on his behalf,’’ says a UN prosecutor whose words, though specifically to the bombastic Milosevic, easily apply to Saddam. “Every time you narrow the definition of a defense, you appear to your constituents as a kangaroo court.’’
For the prosecutors, convicting Saddam isn’t enough, especially if his guilt seems a foregone conclusion. They need a ringing judicial denunciation of Saddam’s totalitarianism.
The indictment will be crucial. American prosecutors at Nuremberg amassed 5 million pages of documents to establish an irrefutable history of Nazi cruelty. But it’s taken more than two years for UN prosecutors in The Hague to make their case against Milosevic, who seems likely to get equal time to rebut it.
So Iraqi prosecutors likely will seek something more streamlined. They could prosecute fewer, particularly notorious atrocities to serve as examples of the regime’s brutality. A leaner indictment means a shorter trial and a smaller target for Saddam in his defense. But it gives Saddam more opportunity to say that a particular massacre was a unique case rather than part of an overall pattern, and it doesn’t build the kind of historical record needed to document the horror of Baathist cruelty.
Both justice and Bush administration interests would seem to dictate charging Saddam with using poison gas during the Iran-Iraq War. Iranians deserve to see their suffering recognized in court, and the administration would presumably like to remind the world of Iraq’s use of chemical weapons against another country. But Iraqi domestic politics will make this excruciatingly difficult.
“Too many (Iraqis) died in that war,’’ says Feldman. Prosecutors “can’t do anything that makes Iraqis feel defensive.’’
The statute also specifically allows for one weird charge, stemming from a 1958 Iraqi law established when pan-Arabist sentiment ran high: “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.’’ This means Iraq’s invasion of Kuwait is a crime under Iraqi law, but attacks on non-Arab countries such as Iran and Israel are not.
The most chilling charge will be genocide — the crime of crimes. But genocide charges place a special burden on prosecutors, who must prove the defendant had a specific intent to wholly or partially wipe out a particular group of people.
“Very few people in history would say publicly they were about to commit a genocide,’’ says Dermot Groome, the prosecutor leading the Bosnia genocide case against Milosevic. Instead, Groome said, prosecutors try to show a pattern of targeted slaughter so “the chamber can infer that the only explanation for these acts was a genocidal intent.’’
The prosecution has a final way of stigmatizing Saddam. Political leaders are usually charged only with giving orders to kill. But Saddam will almost surely be charged with simple murder — for example, allegedly ushering his health minister out of a 1982 Cabinet meeting and shooting him dead.
In the end, the murder charges reveal Saddam’s essence.
As head of state, he had the power to unleash at a distance a stupendous array of ways to destroy human life, from the invasion of other countries to the secret police’s knock on the door at 4 a.m. But it was morally no different from killing a person with his own hands. If the trial can drive that message home, it will have done something real to contribute to the safety of human life in an unsafe land.
— 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).
