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.

In The Hague, another tough and cagey former dictator is causing difficulties. Three years into his detention, Slobodan Milosevic has outlived his nemesis, the presiding judge in his trial at the International Criminal Tribunal for the former Yugoslavia, Richard May. He has also, through fierce determination and cross-examination, exposed the fact that the case against him is less solid than it appeared. Command responsibility – the ordering of a crime, or the failure to stop a crime that a commander knows or should know is about to occur – is notoriously difficult to prove. Milosevic is finally due to begin his defence, though his fragile health has again delayed proceedings. Although court-appointed lawyers could be imposed on him, the trial will continue until he is acquitted, convicted or dies. The judges, insulated from political pressure by their diverse origins, high salaries and approaching retirement, can be expected to show more resilience on this issue than Tony Blair’s government did when dealing with the ageing Pinochet. They might even grant Milosevic his wish and call Blair and other Nato leaders as witnesses – an order they might have to obey, since the Yugoslav tribunal is a creation of the UN Security Council.

Milosevic’s trial is a model of how to deal with former leaders accused of heinous crimes. It would have been almost impossible for the authorities in Belgrade to conduct the same prosecution in such an unbiased manner, and to succeed in providing adequate due process rights. Moreover, Milosevic’s alleged crimes, like Saddam’s, are international in scope: Bosnia-Herzegovina and Croatia were independent countries during part of the conflict, and the allegations against him are crimes under international law. International criminal courts are most needed where the objectivity of a purely national process would be called into serious question, and most legitimate when there is an international dimension to the crimes themselves. And they can be remarkably fair. In Sierra Leone, three former rebel leaders, Issa Sesay, Augustine Gbao and Morris Kallon, stand accused of horrendous crimes before a hybrid court made up of national and international judges. Earlier this year, the tribunal ruled that its president, Geoffrey Robertson QC, could not participate in cases concerning the rebels because of condemnations he had published prior to becoming a judge. It is difficult to imagine the Iraqi special tribunal taking similar steps to ensure the reality and appearance of objectivity. The problem with the Milosevic trial is not the considerable time that it is taking, or the grandstanding opportunities provided to the accused, but the fact that we’re not accustomed to seeing former prime ministers and presidents being prosecuted – and prosecuted properly at that.

Take Ariel Sharon. There’s no shortage of allegations against the Israeli prime minister, starting with the 1953 massacre of 69 civilians in the Jordanian village of Qibya, the 1982 slaughter of a thousand Palestinians in the Lebanese refugee camps of Sabra and Shatila, and, earlier this year, the ‘targeted killings’ of the Hamas leaders Sheikh Ahmed Yassin and Abdel Aziz al-Rantissi – acts which even the ever cautious Jack Straw described as ‘unlawful’.

Nor in this case is there any shortage of law. In 1951, Israel ratified all four of the 1949 Geneva Conventions. The Israeli government, aware that many of its actions are inconsistent with those treaties, argues that they do not apply to the Occupied Territories because there was no prior sovereignty in these areas. But this hair-splitting argument does not get round the now accepted status of the conventions as customary international law, or the fact that some of the allegations against Sharon concern crimes in Jordan and Lebanon.

The challenge in the case of Sharon and many others concerns custody, immunity and jurisdiction. Many legal systems require the accused to be physically present at the trial. Sharon keeps well clear of countries where he might be arrested, and any country that detained him would have to reckon with the Israeli Defence Force; in 1976, Uganda lost a number of soldiers and military aircraft at Entebbe airport, after assisting the pro-Palestinian hijackers of a plane carrying Israeli citizens. The United States has legislation that provides the president with the authority to use military force to secure the release of any American serviceman detained by the International Criminal Court, in the form of a statute popularly known as ‘The Hague Invasion Act’. Even trials in absentia can be subject to political pressure: in Brussels, an investigative prosecutor had to abandon an attempt to try Sharon last year after the Belgian government succumbed to Israeli and American pressure to modify the legislation on the basis of which the prosecution was taking place.

As long as he remains prime minister, Sharon will also benefit from immunity from arrest and prosecution under customary international law. In the Pinochet case, the House of Lords held that this immunity does not, with regard to certain crimes, extend to former heads of state. But in a case arising out of the Belgian legislation, before it was altered, the International Court of Justice held that current heads of state and ministers remain immune. Milosevic has no immunity before the Yugoslav tribunal because the Security Council removed that protection, while the statute of the International Criminal Court similarly provides that immunity does not apply. But the United States would veto any attempt to use the Security Council against Israel, and Israel will not ratify the statute of the ICC.

Under the principle of universal jurisdiction, any country may prosecute war crimes and crimes against humanity committed by anyone anywhere. It was on this basis that Adolf Eichmann was tried in Israel and executed in 1962. Jurisdiction can also vest on the basis of the crime being committed in a country’s territory, or on the basis of the perpetrator being a national of the prosecuting state, and in some instances if the victims are nationals of the prosecuting state or the crime poses a security threat to it. Custody, immunity and jurisdiction do not pose impediments to the trial of Saddam Hussein by a national court in Baghdad.

When international courts and tribunals are created, stricter jurisdictional limits are usually imposed. The Yugoslav tribunal has jurisdiction over all war crimes and crimes against humanity committed in the former Yugoslavia since 1991; the jurisdiction of the Rwanda tribunal is limited to crimes committed in 1994. The International Criminal Court has jurisdiction over crimes committed after 1 July 2002, but only if they were committed on the territory, or by the nationals, of ratifying states. And the International Court of Justice, which like the Yugoslav tribunal and ICC sits in The Hague, is only able to hear disputes between consenting nation-states and is not entitled to prosecute individuals. However, when asked to do so by the UN General Assembly, it can issue an ‘advisory opinion’ – a non-binding answer to a specific question of law – even if that opinion concerns the behaviour of a non-consenting state.

Earlier this month, for example, the International Court of Justice advised that the so-called security fence being constructed around and through the West Bank is incompatible with the Geneva Conventions and customary international law. Although the decision is a PR blow for the Israeli government, it is a far cry from a criminal prosecution of Sharon – this will have to wait until he retires or is removed from office, and travels to a country that is courageous and principled enough to arrest him.

The fact is that most alleged war criminals will never appear in the dock. The few that do are those who have lost political power and powerful friends. It is this shortcoming that gives rise to the accusation that international criminal law is simply victor’s justice, and it is this that the International Criminal Court is designed to address. The ICC provides something dramatically new: a permanent court which is largely immune to political interference, which can take over whenever countries are unable or unwilling to try alleged perpetrators themselves, and to which the Security Council can assign jurisdiction on an ad hoc basis rather than having to create a tribunal from scratch. Although the ICC has yet to hear its first case, an investigation is already underway into atrocities in northern Uganda – at the request of that country’s government.

Fewer than half of the world’s countries have ratified the ICC statute, but only the United States has deliberately sought to undermine the court. The Bush administration is worried that its soldiers or officials might be subject to malicious prosecutions. For the last six years, most international lawyers have insisted that the United States has nothing to fear, because its s0phisticated system of military justice will mean that the complementary jurisdiction of the ICC is not necessary. But this assumes that alleged crimes will always be diligently investigated and prosecuted by US military lawyers, which might not be the case if the orders to commit the crimes originated at the highest levels. The torture at Abu Ghraib prison and the subsequently leaked memorandum that sought to justify all but the most extreme methods of interrogation calls the assumption of US diligence into question. Had Saddam ratified the ICC statute, the chief prosecutor would, quite properly, already be investigating the Abu Ghraib situation – with a view to possibly laying charges for command responsibility against the US secretary of defense and the president.

The United States, with British support, has sought to protect itself against this kind of risk. Security Council Resolution 1422, adopted in July 2002, provided immunity from ICC jurisdiction to the personnel of any non-party engaged in an UN-authorised action. Although designed to protect US soldiers engaged in UN peacekeeping, the resolution arguably also provided protection for US soldiers and their superiors in Iraq – if you accept the argument advanced by the US and UK that the war was in fact authorised by the UN.

Although Resolution 1422 provided only 12 months of immunity, it was subsequently renewed. It seemed destined to be renewed again last month, until the torture scandal broke. Faced with an unexpected wave of opposition, the United States withdrew its draft resolution and the immunity lapsed. In practical legal terms, this may have little effect, since the US has spent the last two years negotiating more than 90 bilateral treaties that commit other countries not to surrender its nationals to the ICC – though these treaties would not necessarily stand up to scrutiny before the court. In political terms, the opposition to the extension of immunity is hugely significant because it shows that many countries have finally lost patience with the US president’s contemptuous attitude to international law. A show trial in Baghdad will only exacerbate the tension between a world that still wants a fair and sustainable international legal system, and an American administration that hardly seems to care. No wonder Saddam was smiling: Bush has bungled again.

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