The Foreign Service Journal, May 2004

M A Y 2 0 0 4 / F O R E I G N S E R V I C E J O U R N A L 15 B y the time this issue of the Foreign Service Journal ap- pears, six months will have passed since the capture of Iraqi dic- tator Saddam Hussein. After the ini- tial flurry of celebration, he has virtu- ally disappeared from the scene while undergoing interrogation by Amer- ican military and intelligence officials. But how and where his trial is eventu- ally conducted will largely determine whether world opinion views the ver- dict as legitimate — and will influence how history judges the U.S. role in Iraq. All that is certain at this writing is that Saddam Hussein will eventually stand trial before a special Iraqi tri- bunal, as President Bush has already pledged, and that Iraqis will decide his fate. The core charges will proba- bly include the big three: war crimes, crimes against humanity and geno- cide. Other former members of the Iraqi Ba’th government and others accused of crimes against humanity and genocide will also be tried in the Iraqi Special Tribunal. On the surface, this would seem to be an emotionally satisfying method of proceeding. After all, the crimes took place in Iraq, so why not hold the trial there? Certainly the victims of Saddam’s crimes deserve to see justice done and have it seen to be done. But a local trial is not the best way to accomplish those twin goals, for the following reasons. A Question of Legitimacy First and foremost, any court con- vened and backed by an occupying army will be seen as meting out vic- tor’s justice — an expression of power politics, not the rule of law. Large swaths of the Arab and Muslim worlds are already predis- posed to view the tribunal as illegiti- mate precisely because the U.S. backs it, no matter how many procedural safeguards are built into the process. (Coincidentally or not, the court’s for- mation was announced by the Iraqi Governing Council just a week before Saddam’s capture.) This is even more true because the Bush administration has shown little interest in conducting fair trials in other contexts. For example, the breach of international humani- tarian and human rights law (e.g., the U.N. Covenant on Civil and Political Rights, and the Third Geneva Con- vention dealing with prisoners of war — both ratified by the U.S.) at Guan- tánamo Bay is manifest. This impression is further rein- forced by the tribunal’s narrow scope of jurisdiction. Most nations’ criminal courts can prosecute all crimes com- mitted in their territories, whatever the nationality of the perpetrator; indeed, that is one of the manifesta- tions of sovereignty. The Iraqi Special Tribunal, however, can only prosecute Iraqi nationals and residents. The scope of its territorial jurisdiction has been manipulated to ensure that American citizens cannot be tried for their possible role in aiding and abet- ting the regime’s human rights viola- tions. This restriction undercuts the Bush administration’s stated desire for a complete and uncensored record of Iraqi atrocities and Saddam Hussein’s role in them. It will therefore be seen as a way for Washington to avoid inconvenient questions about its long- standing ties to the former regime. A “fair trial” requires the telling of the whole story. Iraqi history deserves a complete record of events, the most accurate narrative that can be unearthed. If that means giving Saddam a forum to publicly adduce evidence of his previous liaisons with U.S. governments (particularly during the 1980s, when he began acquiring and using biological and chemical weapons with Washington’s acquies- cence, if not aid), then so be it. Estab- lishing good governance and an effective judiciary requires that Iraq start its post-Saddam era with a clean slate. The statute establishing the Iraqi Special Tribunal is void of any serious attempt to ensure impartiality. It will effectively impose a blanket disquali- Saddam Hussein’s Trial: Due Process or Victor’s Justice? B Y J ASON D. S ÖDERBLOM S PEAKING O UT The Iraqi Special Tribunal does not meet Washington’s stated objective of conducting a process that “withstands international scrutiny” — at least as presently constituted.