The capture of Saddam Hussein has raised the question of how best to hold him accountable for the horrendous human rights violations committed by his regime. The Bush Administration has come up with a proposal, approved in the form of a law adopted by the Iraqi Governing Council on December 10, under which he would be tried by a special tribunal of Iraqis appointed by the council, which may also include some foreign judges and foreign advisers. Following this the United States has sent several legal advisers to Iraq to help build the case against Saddam.
But this mixed-tribunal model, the first example of which was the Cambodia-UN tribunal created to hold the Khmer Rouge accountable–subsequently adopted in Sierra Leone and East Timor with modifications–is fundamentally inappropriate for Iraq. The tribunal is also flawed because it prevents any inquiry into the human rights violations committed by the West, including the United States, in Iraq. Human rights groups are right that a genuine international tribunal is necessary, but it would have to be different from what they have proposed.
There is no doubt that Saddam is one of the worst mass killers alive. His gassing of the Kurds in 1988, as well as his massacre of the Shiite rebels in 1991, are stark examples of his best-known atrocities, but there are many more ordinary ones. Indeed, given the number of enemies he has within Iraq, he is lucky to have been captured alive. His trial could have a positive educational impact on the region’s many mass murderers still in power. However, the decision to ask the Iraqi Governing Council to deal with Saddam’s crimes is like asking the Vietnamese-installed puppet regime in Cambodia in 1979 to try the Khmer Rouge. Like the latter, the Iraqi Governing Council is not independent and is controlled by a foreign occupier. In fact, the Cambodian regime held a show trial of the gang of Pol Pot and Ieng Sary in 1979 that commanded no legitimacy whatsoever, even though it, too, included the participation of foreign jurists. Why should the proposed Iraqi tribunal be any different?
International humanitarian and human rights law has evolved so much since the 1970s that there are now fairly clear principles that govern the composition and conduct of human rights trials after regime change. One principle is that the new regime that establishes the trial mechanism must not have been installed by a foreign power–as is the case in Iraq–but must result from the genuine exercise of the right to self-determination. Another principle is that the new regime be internally democratic–again, not the case currently in Iraq. Whatever limited powers the Iraqi Governing Council has under international law, it certainly doesn’t have the power to create a legitimate human rights tribunal. Indeed, such a tribunal would be an American tribunal with an Iraqi face.
Yet another principle that has become well established is that the domestic judiciary should be capable of meeting international standards relating to fair trial, as laid down in international human rights conventions. It is generally conceded that the Iraqi judiciary is a shambles and that it lacks the capacity to insure such standards. To gloss over this problem, the Bush Administration has proposed that foreign judges may help the Iraqi tribunal–the mixed-tribunal model.
But despite the veneer of legitimacy sought through the participation of foreign judges, the proposed tribunal would in fact be an American-run court enacting a classic victor’s justice. The law that establishes the tribunal provides that only Iraqi nationals can be prosecuted under the tribunal for any mass crime committed between 1968 and 2003. That excludes the culpability of Iranian forces during the Iran-Iraq war and, of course, the United States. There is substantial evidence that many US actions since the 1991 Gulf War may constitute crimes against peace, war crimes or crimes against humanity, such as the use of excessive and disproportionate force; the enforcement of sanctions during the 1990s, which saw the death of more than 500,000 Iraqi children; the illegal bombing of Iraq in 1998; and the waging of the current war, which violated every rule of existing international law on the use of force. But prosecutors appointed by the Governing Council are unlikely to pay sufficient attention to these facts or to the well-known support provided by the West to Saddam’s regime in the 1980s for building chemical weapons, which he then used against the Kurds and the Iranians. And, as noted, even if the tribunal wants to prosecute some non-Iraqi people for conspiracy or complicity with Saddam, it is prevented from doing so by the law that establishes it. More important, preventing Saddam from appearing before a genuinely independent tribunal would insure that the Bush Administration’s case for war is never tested in a court of law, especially in an election year, when it could prove uncomfortable.
Most human rights groups are not paying sufficient attention to these issues. Instead, they are demanding that an international tribunal be established excluding Iraqis on the grounds that Iraqi judges lack the necessary competence. This imperial and arrogant assertion has actually helped the Bush Administration sell its proposed tribunal as Iraqi-controlled and therefore nationalistic and more legitimate. In addition, the proposed tribunal would, as it is structured, place all blame for human rights violations only at Saddam’s feet. That in turn would serve to legitimize the war against Iraq as a war waged for principles. Efforts are already well under way to rewrite the history of the war against Iraq as a war for democracy and human rights, rather than one designed to prevent Iraq from sharing weapons of mass destruction with terrorists, as was originally claimed. Human rights groups must not be complicit in this revisionist history.
One possible alternative to this tribunal would be for the UN Security Council to create an international tribunal to which the UN Secretary General would have the authority to appoint judges and prosecutors in consultation with a broad cross-section of Iraqis, and which could have some Iraqi judges. But it would be an international tribunal with Iraqi participation, and could even operate in Baghdad; it would not be an Iraqi tribunal with nominal foreign participation. Such a tribunal would have domestic and international legitimacy and could be capable of insuring evenhanded justice. Authorized by the UN Security Council and with the participation of judges from around the world, including key Muslim nations as well as some Iraqis, this tribunal might be able not only to insure justice to the victims of Saddam but also to hold the United States accountable for its sordid record and make it more difficult to rewrite the history of the 2003 Iraq war. Such a tribunal would be supported by global public opinion, although admittedly it would be difficult to create through the UN Security Council because of the US veto–unless the Democrats win the White House and miraculously decide to allow an independent tribunal to test the legal and factual case for the Iraq war as part of a human rights investigation in Iraq. An alternative would be to establish a tribunal through a UN General Assembly resolution, where it might be possible to get a majority of states to support an evenhanded tribunal.
Unless such a tribunal is created to prosecute everyone who is responsible for massive crimes in Iraq, the world, including the American people, must reject the charade that a trial of Saddam is likely to be.