The Ultimate Justice Show

Michael Byers

‘He is a torturer, a murderer, and they had rape rooms, and this is a disgusting tyrant who deserves justice, the ultimate justice.’ With those words, spoken during a television interview on 16 December, the President of the United States tried, convicted and sentenced the former Iraqi President Saddam Hussein.

Ostensibly, a proper trial will take place in an Iraqi court established specifically for senior members of Saddam’s regime; the creation of the court was announced by the Iraqi Governing Council just three days before Saddam’s capture. But the Council is itself a creation of the US and heavily beholden to it: its members were handpicked by President Bush’s special envoy, Paul Bremer, and they remain entirely dependent on the occupying authority for resources, security and what little power they hold. For the most part, the Council’s members suffered horribly under Saddam’s regime, or were forced into exile: such is their animus towards the former dictator that four of them demanded – and were granted – the right to confront him shortly after his arrest. And many of them will wish to retain influence after the elections planned for June 2004, in a country still brimming with hatred for the former regime. In these circumstances, there is no reason to expect them to create a court or appoint judges that could conceivably rule in Saddam’s favour.

The inappropriateness of the Iraqi court isn’t a question of capacity. International experts can be provided to assist the judges, prosecution and defence, and global standards can be drawn on and applied – indeed, the new tribunal’s statute takes the bulk of its provisions directly from the governing instrument of the International Criminal Court. Rather, the three main problems with using an Iraqi tribunal to try the former dictator are: inadvertent bias, the possibility of rushed procedures and a relative absence of international legitimacy.

As with the members of the Governing Council, it’s likely that the judges will themselves have suffered as a result of Saddam’s actions; few Iraqis escaped the shadow of his rule. It’s precisely this conflict between judicial role and personal interest that has led most legal systems to preclude victims acting as judges or jury members.

As for rushed procedures, one member of the Governing Council has indicated that Saddam’s trial could start within weeks; others speak of a conviction in June, and an intention to lift the current suspension of the death penalty on 1 July, immediately following nationwide elections. Iraqis are accustomed to swift justice: during Saddam’s rule, trials rarely lasted more than a day. On the other hand, the evidence against Saddam is voluminous: the charge sheet could contain tens of thousands of crimes; rooms full of documents will need to be read; a multitude of victims and witnesses will wish to testify. Mounting a rigorous defence will be time-consuming.

Yet there must be a rigorous defence. By providing due process to those accused of the most heinous crimes, societies demonstrate their adherence to the rule of law. In this instance, establishing Saddam’s guilt beyond a reasonable doubt makes sense in terms of policy, too, in that an evidently fair trial might help to sway those who are predisposed to sympathise with him. Countless dissatisfied young men and women across the Islamic world will be watching the trial closely – parts of it, at least, will probably be broadcast live on TV. The trial needs to satisfy Arab more than Western opinion.

The most significant problem with the Iraqi tribunal is that it lacks the legitimacy that is now available as the result of developments in international criminal law. This body of law is designed to provide accountability and access to judicial mechanisms for particularly grave offences when national legal systems are unable or unwilling to act. The potential crimes with which Saddam may be charged – torture, mass rape and murder, armed aggression, the use of chemical weapons, the mistreatment of prisoners of war and perhaps even genocide – are all proscribed by treaty and custom. They are international crimes in both severity and scope: the victims of his regime include the thousands tortured and killed during the occupation of Kuwait, and the hundreds of thousands who died or were maimed during the decade-long war with Iran. The crimes give rise to jurisdiction in the national courts of other states, and, on the basis of treaties or resolutions of the UN Security Council, to the jurisdiction of international courts and tribunals.

The higher the alleged offender in the hierarchy of his state, and the more serious his crimes, the more necessary an international judicial forum. The Nuremberg Tribunal was used only for senior members of the Nazi regime; lower-ranking offenders were tried in national courts. The ad hoc international tribunals set up to deal with the former Yugoslavia and Rwanda, based in The Hague and Arusha respectively, have likewise focused their attention on senior officials, with national courts dealing with the rest. The Statute of the International Criminal Court, adopted in 1998, foresees that national courts will hear most cases involving international crimes – as Jack Straw was at pains to point out following Saddam’s arrest – but also allows the international court to determine whether a fair and genuine domestic prosecution is taking place, and to insist that the case be transferred to it in the event of failings at the national level. Most important, the UN Security Council has the legal authority, under both the Court’s statute and the UN Charter, to order that any particular situation giving rise to international crimes be dealt with at the international level.

Saddam Hussein could easily be tried in a special international court created by the Security Council, providing this wasn’t vetoed by the permanent members. Agreement was achieved with regard to ad hoc tribunals for Yugoslavia, Rwanda and, most recently, Sierra Leone, with considerable pay-off in terms of international legitimacy. Slobodan Milosevic’s allegations of victor’s justice ring hollow in a court that was approved by Russia and China, is staffed by lawyers and judges from around the world, and that has provided him with seemingly endless opportunities to speak and cross-examine witnesses.

The Sierra Leone court is a particularly useful model. A hybrid institution, it includes international judges appointed by the UN and national judges appointed by the Government of Sierra Leone. A similar court, authorised by both the UN Security Council and the Iraqi Governing Council, would ensure that the highest standards of due process were met. Crucially, the involvement of the UN and judges who are neither Iraqi nor from the Coalition countries would send a powerful signal that the evils perpetrated under Saddam’s regime were crimes against humanity, that his trial and sentence are not victor’s justice, and that the reconstruction of Iraq has become a global responsibility. At the same time, such a court would give the Iraqi people some sense of ownership in the process; after 12 long years of UN sanctions, an international court could – from within Iraq – be regarded with as much scepticism as a court that was for all practical purposes appointed by the United States.

But none of this is going to happen. George W. Bush’s contempt for international rules and opinions has been particularly apparent in recent weeks. The announcement that the bidding on Iraqi reconstruction contracts would be limited to companies from countries that had contributed troops to the war was a needless affront to those that provided other forms of assistance. Canada immediately announced that it would suspend further aid, while France (whose taxpayers are paying towards the EU’s contributions to the rebuilding of Iraq) said that it would investigate whether the limitation was legal; it probably is, thanks to conditions introduced by the US when it ratified the WTO’s government procurement agreement. Russia limited its response to a rejection of US entreaties that it forgive the massive debts it is owed by Iraq.

The continuing international outcry over the detention, without charge or access to lawyers, of more than six hundred men and boys at Guantanamo Bay has likewise been brushed aside. Even Tony Blair’s pleas for the repatriation of the British citizens – a selectivity of concern that Lord Steyn rightly condemned – have as yet produced no results. Those who harbour hope for a fair trial for Saddam need only look to America’s ‘legal black hole’ in Cuba to realise how unlikely a prospect that is.

Kofi Annan has recently been pressing for a much more significant role for the UN in Iraq. Blue-helmeted troops could make a significant contribution to bringing peace to the country; they could at least provide essential security to international organisations, which, despite their refusal to rely on Coalition troops for protection, have themselves become the targets of resistance attacks. But the Bush Administration has been giving Annan the silent treatment since late September, when, during his speech to the opening session of the General Assembly, he expressed strong concern about the President’s doctrine of pre-emptive war.

Nor is the US showing any greater respect for international humanitarian law. Donald Rumsfeld has even refused formally to accord Saddam prisoner of war status: a remarkable decision, given that Saddam is a recently defeated commander-in-chief of the armed forces of a UN member state, but of course it’s a decision that allows for more rigorous interrogation. Regardless of Rumsfeld’s views, Saddam is a POW – and his rights to human dignity and protection from public curiosity, as ensured by the 1949 Geneva Convention, were clearly violated by the worldwide broadcast of his medical examination. That broadcast was, indeed, more degrading than the one made of captured US soldiers earlier this year, itself quickly condemned as a war crime by the US and British Governments.

The decision to try Saddam before an Iraqi tribunal also has something to do with Bush’s opposition to the International Criminal Court. Since coming to office, his Administration has ‘unsigned’ the Court’s statute, pressured the Security Council into granting a rolling one-year suspension of the Court’s jurisdiction over US forces, and obtained more than 70 bilateral treaties committing individual countries not to surrender US citizens to The Hague. With troops in more than 140 countries, a propensity to intervene in dubious legal circumstances, and interpretations of the laws of war that sometimes differ from those of other states, the US shies away from international mechanisms for enforcing international criminal law. Whereas the Clinton Administration sought to insert protections against the abuse of international procedures into the statutes of the various tribunals it helped to create, the Bush Administration has adopted an entirely hostile stance – one that could not consistently accommodate the use of an international tribunal to try Saddam.

The death penalty provides another opportunity for criticism that will get nowhere. Tony Blair and John Howard were both quick to realise that resistance to the use of the ‘ultimate punishment’ in Saddam’s case would be futile. On Bush’s first trip to Europe as President, he dismissed international concern about the widespread use of capital punishment in the US as illegitimate interference in domestic affairs. His own position on the matter is clear: as Governor of Texas he personally approved the execution of more than two hundred convicts. Yet the criticism must continue: the UK, for one, has recently ratified a protocol to the European Convention on Human Rights that commits it to take every possible step to abolish the death penalty.

Bush has on previous occasions indicated a total lack of respect for the requirements of due process. The most remarkable aspect of his State of the Union speech in January 2003 was not the reference to British claims that Iraq had attempted to obtain uranium from Niger, but his boasting about a policy of extra-judicial killing. The precise words bear repeating: ‘All told, more than three thousand suspected terrorists have been arrested in many countries. Many others have met a different fate. Let’s put it this way – they are no longer a problem to the United States and our friends and allies.’ It was clear from his tone and demeanour that he wasn’t referring to suspects killed on the battlefield, or during attempts to apprehend them, but to murder as an acceptable alternative to arrest, detention and prosecution.

US foreign policy today is determined by pure political pragmatism. The Presidential election in November dominates every decision. Karl Rove, the President’s political adviser and, for the next 11 months, the most powerful man in Washington, will want the trial of the ‘Butcher of Baghdad’ to take place next spring and summer, without international restrictions, and with the execution timed to occur in the autumn. The ensuing media circus will be carefully managed. In the age of reality TV and corporate domination of politics and media, who could reasonably expect anything more: the ultimate justice show, coming soon to a TV near you.