Alleged War Criminals

Michael Byers

The CIA could not break the former Iraqi president. After nearly seven months of interrogation and solitary confinement, a fit and imperious looking Saddam Hussein surveyed the US-financed Iraqi special tribunal, smiled and then pronounced: ‘This is theatre. Bush is the real criminal.’

Dishevelled, confused and compliant when captured, Saddam must have seemed the perfect puppet for an election-friendly show trial. Salem Chalabi, the nephew of the until recently omnipresent Ahmad Chalabi, was handpicked by the US envoy, Paul Bremer, to direct the production. A quick cut-and-paste job provided a statute for the tribunal; a slate of safely anti-Saddam judges was rubber-stamped by Bremer’s Iraqi Governing Council. And after the council had been hastily transformed into a supposedly sovereign interim government last month, one of its first acts was to reintroduce the death penalty. Everything was ready except the star defendant – whose resilience should have come as no surprise.

Bush, who is composed of softer stuff, did not want the defiant and articulate Saddam to appear in court last week. But, as the International Committee of the Red Cross publicly reminded him, the third Geneva Convention requires that prisoners of war be either charged or released at the end of hostilities, and the transfer of sovereignty – another election ploy – had the unfortunate legal consequence of transforming a trans-national military struggle into a national police operation. Bush, citing security concerns, initially resisted transferring custody over Saddam, but was soon reminded that violations of the Geneva Conventions can lead to diplomatic trouble – not to mention judicial review by a newly vigilant Supreme Court. And so Saddam and 11 of his senior officials were handed over, though, as with the transfer of sovereignty, this was a legal rather than a practical move: Saddam and his henchmen remain under American lock and key.

Salem Chalabi has raised the possibility of holding the trial in secret, but this would too clearly expose the bias of the case. Instead, Saddam will appear in court again this autumn, but only to have more specific charges read against him, and perhaps for the prosecution’s case to begin. Karl Rove will want American voters to be reminded of Bush’s singular achievement, since few in the United States would query that the capture of Saddam was a good thing. However, the delay makes it quite possible that Bush’s sworn enemy will be tried and executed on John Kerry’s watch, and that a Kerry administration will have to deal with the consequences in an already volatile Middle East.

Saddam might even be denied the right to choose his legal representives; under existing Iraqi law, only Iraqi, Syrian and Palestinian lawyers are allowed to appear in court. The interim government will think twice before changing this rule now that Saddam’s senior wife, Sajidah, has assembled a multinational team of lawyers to represent him, some of whom seem keen to focus on the political underpinnings of the trial. The prosecution, in contrast, is receiving foreign assistance: a team of 20 American lawyers has been assigned to the tribunal, and the evidence is being compiled by the FBI.

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