Trying Hussein

December 19, 2003|By Edgar Chen and David Marcus

A TRIAL of Saddam Hussein for the decades of his murderous rule will be the most symbolically important episode in Iraq's postwar reconstruction.

Any trial must give Iraqis a sense of ownership over their own postwar justice process. And it must also allow the international community to contribute its invaluable legal, investigatory and administrative expertise to make such a proceeding unimpeachably legitimate.

As the trials of Nazi henchmen, executors of Rwandan genocide and Balkan warlords have demonstrated, international criminal trials can bring closure and relief to victims, place unimpeachable judicial condemnation on the immorality of a murderous regime and validate efforts by the regime's opponents to bring about its destruction. But trials of war criminals also have stirred resentment among vanquished peoples, leading to charges of victor's justice and undermining the healing and restorative possibilities of a successful prosecution.

The Bush administration faces several difficult questions as it decides how to put Mr. Hussein on trial. Which prosecutor will put him in the dock and which judges will render the verdict? Under what law should he be tried?

We propose five judges that would include two Iraqis, perhaps a Kurd or Shiite to represent at least one of the groups most terrorized by Mr. Hussein's genocidal policies. An American or a British judge would represent the coalition forces. Two jurists from the international community - including one from another Islamic country such as Iran or Kuwait - would round out the panel, which should sit in Baghdad.

This arrangement would ensure that Iraqis do not visit a judgment driven purely by anger and vindictiveness. And the international community could be assured that the trial would not simply be an exercise in victor's justice by triumphant Americans.

Any decision would require a supermajority of votes (four out of five) to ensure that concerns from all sides are heard. The prosecution should consist of Iraqis and international co-counsel. While Mr. Hussein's crimes against his own people should be tried under Iraqi law, those committed against other nations should be tried according to international humanitarian law, such as the Geneva Conventions and the Genocide Convention.

This mixed tribunal would avoid the problems faced by the other three options the Bush administration might consider:

The Iraqi Governing Council announced the creation of an all-Iraqi war crimes tribunal and is eager to receive the deposed Iraqi tyrant into its custody. Iraqis unquestionably endured Mr. Hussein's viciousness more than any other population and thus have a higher moral claim to his trial than anyone else. But vengeance, rather than impartial fact-finding, might motivate a panel of Iraqi judges who suffered under Mr. Hussein. Also, these judges, appointed by the council, might turn the trial into a political show, manipulated to strengthen the council's authority.

Different but equally troubling problems would mar a U.S. military proceeding. Like the envisioned Guantanamo Bay prosecutions of suspected al-Qaida operatives, an all-American military tribunal would lack the international community's approval. Moreover, a U.S. prosecution would look too much like victor's justice.

A U.N.-administered prosecution conducted before an international panel of jurists would undoubtedly enjoy the imprimatur of international legitimacy. A trial in the International Criminal Court in The Hague would establish the ICC as the world's court for war criminals, ensuring the success of this nascent experiment in a permanent system of international justice.

But this option is implausible, given the Bush administration's steadfast opposition to the ICC. Moreover, it's doubtful that the ICC is the appropriate forum. With international judges at the helm, this option would also leave Iraqis out in the cold, denying them a voice in their own process of retribution and minimizing the ability of a trial to heal Iraqi wounds.

The best option remains a mixed tribunal. The international component of the court would encourage the rest of the world - and the United Nations - to play a role. U.N. assistance is not only desirable but necessary. The United Nations has the legal and logistical experience of establishing and running tribunals for the world's most notorious criminals. It also possesses the forensic technical experience necessary to piece together evidence for a successful and legitimate prosecution.

The Nuremberg and Tokyo tribunals, which gave rise to the modern notion of human rights and defined crimes against humanity, were conducted by the victorious Allies without input from many victimized populations. The United Nations, which runs the trials against Rwandans and former Yugoslav President Slobodan Milosevic, sits in distant judgment from The Hague.

The Bush administration should learn from this history and construct a court for Mr. Hussein that will render impartial, unimpeachable and restorative justice in which Iraqis as well as the rest of the world can take pride - today and for history.

Edgar Chen, a Boston lawyer, was a program associate at the Coalition for International Justice in Washington. David Marcus, a San Francisco lawyer, taught a seminar at Yale University on legal responses to genocide.

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