'Just World News' with Helena Cobban

The trials of trying Saddam

There's a possibility that by October-November 2004 the capture of Saddam Hussein, which today looks like such a valuable political 'prize' for the Bushies, may look like a difficult political liability. The central question of who is to control the process of trying and punishing him may have become so hotly contended by then that many in the administration might wish that rather than capturing him alive, the forces that stormed his bunker had somehow allowed him to "be shot while fleeing arrest".

Hey, they might even come to wish, rather wistfully, that they could simply have handed him over to the jurisdiction of an "International Criminal Court" which could take all the decisions around trying the guy--and all the associated political heat--quite out of their hands!

The "who gets to do it" question around the trying of Saddam Hussein is by no means as easy or straightforward as it looks...

As the occupying power inside Iraq, the US does have the formal right and responsibility to control the process (though in doing so, it certainly has obligations under the 4th Geneva Convention to give him decent treatment in custody, and a fair trial.) Meanwhile, the mainly puppets of the Iraqi Governing Council have been eager to strut their political stuff by establishing their own war-crimes court in Baghdad, a venture I wrote about here on December 10. Many IGC members, and their backers in Washington, can be expected to want this court to try Saddam-- in an attempt to boost their own domestic legitimacy inside Iraq at a time of, presumably, elections or caucuses or whatever political things are scheduled to take place inside the country throughout 2004.

For their part, the good-hearted folks of the international human-rights movement are eager to see at least a strong international "component" in the body that tries Saddam. Some are urging the establishment of a special, mixed, national-international court for the purpose of trying Saddam and his top henchfolk, like the one created for/in Sierra Leone.

This interesting suggestion raises problems in both aspects, however. The "international" component in such a court would, in the view of the big rights organizations, have to be provided through a resolution of the UN Security Council. Is the Bush administration likely to hand over any control of the trial of its "ace of spades", Saddam, to the UN at this point? And come to think of it, would the other members of the Security Council actually want to pursue this option? Every single one of the Permanent Five, after all-- not just the US-- is likely to be intensely embarrassed by facts that Saddam might bring up in the course of anything that looks at all like a fair trial: facts about the past collusion of their governments in many of his atrocious or otherwise potentially prosecutable actions...

And then, in any mixed court, the identity of the "local" component of course needs to be defined. At present the only contender for this role is the (mainly puppet) IGC. Do the non-US members of the Security Council want to strengthen the role of the IGC by according it this power? Again, unlikely.

Then, moving right along in the growing list of bodies that might want to control the trying of Saddam Hussein, we have the news that the government of Iran has announced its intention to seek his extradition so that he might stand trial there-- and so that they might expose all the dimensions, including the international dimesnions, of the massive and costy military assault he launched against their nation in September 1980.

The Iranians actually have a very strong prima facie claim to be the primary prosecutors of Saddam Hussein. Uncountable hundreds of thousands of Iranians lost their lives during the eight long years of that war. Maybe 500,000? The launching of the war itself, which was a war with the express aim of effecting "regime change" in Teheran, was a massive "crime against the peace" (a category recognized, but not defined, in the ICC's Rome Treaty of 1998.)

And then in the course of waging that war the Iraqi forces committed numerous large-scale war crimes against Iranians including the use of chemical weapons a number of times against Iranians-- that was in addition to the one proven time they used CW against Iraqi nationals, in Halabja.

Plus, as compared with the IGC, the Iranian government does have a well-established and functioning legal system that would be quite technically capable of handling such a case...

So, talking of external governments that might seek to extradite Saddam to try him, we should mention the Kuwaitis, who also have a huge prima facie case against him, and a functioning legal system. Don't, however, hold your breath for the timid (mainly puppet) Kuwaitis to lodge such a request.

And, still moving along, we should not forget the extraordinary possibilities the US courts give to individual plaintiffs who want to file suit against foreign malefactors. This is a process that, because it is largely out of the control of the US government, most US administrations are very wary of, or even seek to oppose. It most likely would not be the first preference of the Bushies to have any aspect of the Saddam case tried in a domestic US court. But we cannot preclude the possibility that one or more individuals might seek to bring such a case against him now that he's in US custody...

Even after running through all these possibilities of bodies that might end up running the trial of Saddam Hussein, my money is still strongly on the US keeping tight control of the process, though perhaps sub-contracting some small role in it to the IGC if that seems politically wise to Jerry Bremer at the time. I think the Bushies will insist on keeping control of the process for two reasons:

(1) they would hope to be able to tightly control the temporal jurisdiction of the court and all aspects of its rules of evidence in such a way as to minimize Saddam's ability to bring into the case all the facts of US collusion-- should I say, Donald Rumsfeld's collusion--with his heinous schemes against Iran in the 1980s; and

(2) they get to control the all-important timing aspects regarding the working of the court. I can see Karl Rove trying to work this one out for maximum effect: How about scheduling it so that a tightly-controlled but globally-publicized initial appearance by Saddam occurs in around mid-October 2004, and then after the lengthy charge-list against him is read out, the court goes into another phase of private procedural hearings before the ex-dictator can be allowed to say anything substantial of his own in court?

It's true that as the incumbent in the US and the occupying power in Iraq, the Bush administration has enormous power to set schedules and to try to control the Iraq-affairs agenda in the run-up to next November's election in the US. This is evidently their main concern when they come up with schemes for some rapid and above all visible form of "handover of power" to Iraqis to occur sometime next summer.

However, not everyone in Iraq is as happy to go along with the Bremer/Pentagon timing of developments inside their country as the IGC. We have already seen how steadfast Ayatollah Sistani and other significant forces in the Shi-ite community have been in resisting Bremer's calls for a jury-rigged, highly flawed version of political "Iraqification". We cannot necessarily expect the Shi-ites--who along with the Kurds constitute the two communities inside the country who suffered the most under Saddam's rule--to easily go along with Bremer's timetables and other plans regarding the Saddam trial.

The Iraqi Shi-ites, like their co-religionists just across the border in Iran, have a massive grievance against Saddam which would need to be plainly heard in any meaningful trial against the man. I am not sure if they would support the idea of him being tried by Teheran (or perhaps, in some form of a mixed Iranian-international court in which they and Saddam's other Iraqi victims could have a full say?) But if they did give active support to some form of a Teheran-based trial against him, their pressures in this regard might be quite sufficient to stymie all of Bremer's best-laid plans...

No doubt about it: the trial of Saddam Hussein has many, many political aspects to it. It certainly won't be the simple, gloating "victory lap for the Coalition" that many in the US media now think it may be.