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.