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Saddam's trial - A Challenge to International Justice

Information and discussion sheet number 9.   December 2003.

The extensive forensic investigations preceding the Soham trial and the jury's protracted deliberations about a seemingly "open and shut" case, remind us that justice has to be meticulous and even-handed. Lynch law and kangaroo courts are ultimately unsatisfying to those whose lives are torn apart by a criminal outrage.

The centuries have given us procedural maps for the navigation of domestic law. However, bringing the recently-captured Saddam Hussein to justice takes us into little explored territory. It is therefore vital to set the right precedent.

Human Rights Watch has been gathering evidence against Saddam for years. Violations of International Humanitarian Law for which he could be put on trial include:

  • 100,000 Kurdish men and boys machine-gunned during 1998;

  • the Anfal genocide, much of it involving the use of chemical weapons;

  • the use of chemical weapons during the Iran-Iraq war;

  • the 30,000 Shiites and Kurds slaughtered in 1991;

  • other Shiites killed during the 1980's because of their perceived sympathy for Iran;

  • Marsh Arabs killed as the Iraqi government drained the marshes and destroyed a culture that had thrived for centuries;

  • many individual Iraqis of all faiths and ethnicities who were singled out, and their lives ended, for real or perceived opposition to the regime.

Like the Soham case, Saddam's trial will need painstaking preparation - but on a massive scale. Kenneth Roth (International Herald Tribune,15 December) said "As we know from Rwanda and the former Yugoslavia, prosecutions of genocide or crimes against humanity can be enormously complex, demanding jurists of exceptional skill and sophistication. They require amassing volumes of official documents, collecting sensitive forensic evidence from mass graves, presenting hundreds of witnesses from among victims and accomplices, and paying scrupulous attention to the requirements of due process".

On 14 December Tony Blair said that "the fate of Saddam Hussein will be decided by the Iraqi people". President Bush agrees with this. In July Iraq's Governing Council established a Judicial Commission to set up a court system to try former members of the Iraqi government and others accused of crimes against humanity and genocide. This could include Saddam. However, claiming that a purely Iraqi trial would obviate any perception of "victors' justice" ignores several objections:

  • Human Rights Watch argues that the Iraqi judiciary, weakened and compromised by decades of Ba'ath party rule, lacks the capacity, experience, and independence to provide fair trials for the abuses of the past;

  • the Governing Council is seen by many as a tool of the Coalition forces which invaded the country illegally;

  • considerable international assistance would be needed to collect and analyse the mass of documentary and forensic evidence.

A purely Iraqi court would probably sentence Saddam to death. The UK does not support this. Neither, according to the Law Gazette, does the director of the International Legal Assistance Consortium, an organisation formed by the International Bar Association and American Bar Association to rebuild legal institutions in post-conflict states. He argues that "the era of the death penalty is over and in civilised countries the death penalty should be done away with".

The International Criminal Court (ICC) cannot try Saddam. It has no jurisdiction over war crimes committed before July 2002, and can operate only when domestic courts are unwilling or unable to act. It should also be remembered that other states might also wish to put Saddam on trial for offences he has committed against them.

Neither can he be tried for for his unprovoked invasion of Iran - a crime against peace. The crime of Aggression is yet to be defined by the ICC.

However, there could be a mixed court comprising international and Iraqi judges, modelled on the special court for Sierra Leone, established by a UN resolution in 2000.

Such an international tribunal would, according t o Kenneth Roth, " be more likely to be seen as legitimate. And because it can draw from a global pool of talent, it would be better able to secure the experienced and fair-minded jurists than a court that must look only to Iraqis" .

The Bush administration, however, would not countenance such a move. It would be too likely to expose US and UK support for Iraq at the very time he was committing many of his crimes; and it would lend credibility, however indirectly, to the International Criminal Court which President Bush and his colleagues bitterly oppose.

Institute for Law and Peace.  Company No. 2526884. Charity No. 1000444. This page   last updated 15 April 2004.