Middle East

Beyond the Trial of Saddam Hussein

Unpaved Route to a New Iraq

The coming summer will witness the trial of Saddam Hussein for crimes against humanity. His trial will not be under the authority of the current Iraqi Governing Council for two reasons: First, it does not have the authority for this task and is a council set up by the American and British forces present on Iraqi lands, which carry the designation “Coalition Provisional Authority.” Second, Iraq is still in a state of rebuilding, and its judges are in a delicate position and need to stay outside political conflict even as they seek to gain legal experience.

Furthermore, crimes against humanity fall under the Geneva Conventions, which are necessary, fundamental precepts for judging the tyrant but which are too complicated for the man on the street. In any event, a trial of Saddam in front of only Iraqi judges might open up room for Iraqi lawyers to exact their revenge for his oppression, and consequently it could become a trial of the victors over the losers, which would appear to be a case of  “to the victor goes the spoils.”

The International Criminal Court at The Hague does not consider war crimes that occurred before the establishment of the court in July 2002. Furthermore, it renders judgment only in cases that are presented to it on behalf of citizens of the signatory nations for its establishment, and neither Iraq nor the United States assented in the establishment of the court.

Another choice is to establish a special war-crimes court run by international judges that could work like the court the United Nations set up for handling Rwanda and the former Yugoslavia. The shortcomings of taking this route, however, are that such forums are slow and limited in scope.

For these reasons, the best choice is the establishment of a mixed court buttressed by the U.N. and comprising international and Iraqi judges. The court should be in Iraq and work in accordance with international law. A court of this type was established to consider the war crimes in Sierra Leone and Cambodia. The benefits of this experience would include exposing Iraqis to the accumulated international experience in administering such complicated legal proceedings. Another benefit would be participation by some judges from Islamic nations. A court of this kind, however, would not consider issuing a death sentence. The U.N. has never established a court empowered to do so.

Saddam is a man with no prestige. His rule ended and he was captured. This dealt a devastating blow to his supporters among the Baathists and Fedayeen Saddam [devoted Hussein loyalists said to be responsible for many of the current attacks in Iraq—WPR]. Saddam’s capture opened up a great legal window for the Americans, who discovered in his possession documents and his followers’ names. The matter does not stop at this point, however, as there still remains the issue of the Iraqi resistance.

Among the resistance groups, there are Iraqis motivated by nationalistic leanings and Islamists driven by their religious sentiments. Non-Iraqi resistance volunteers work according to their particular understanding of jihad. The sources of the resistance’s financing are a variety of people, including Baathists and those families and strong clans that benefited under Saddam’s regime. Their money is gushing into the resistance.

Now that the dictatorship has fallen, Iraqis have begun to wonder about the direction this resistance will take. Will it multiply or negotiate with the Coalition Authority? Right now, there exists an opportunity for those military and civilian members of the former regime to set a positive example if they lay down their guns and negotiate. Both the Sunnis and Shiites want a greater role than the other in the political process in post-Saddam Iraq. Can Iraqis, in all their different groupings, renounce their differences and lower the curtain on the past to forge ahead for the sake of a new Iraq?

What has strengthened such a hope is the existence of a schedule by the Coalition Provisional Authority to achieve national unity. The Iraqi people need international help for it to succeed. Implemention of this program will reportedly begin on June 30, 2004. The last stage in the program is the formation of an elected Iraqi government, with complete sovereignty coming in January 2006. The United States will remain a principal partner of Iraq, although the extent of these future relations is not completely clear right now. Regardless of these questions, with the impending trial of Saddam and the transition to a new government, there is an increasing sense of optimism about a better future.

The author is an adviser in the Kuwaiti Foreign Ministry.