Bringing Saddam Hussein To Justice - Human Rights Discussion Paper
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Human Rights
The Jacob Blaustein Institute
for the Advancement of Human Rights Discussion Paper
February 2004
Bringing Saddam Hussein To Justice
The magnitude of Saddam Hussein's crimes has Just three days before Saddam Hussein's
evoked demands for a process to be established capture, the Iraqi Governing Council announced
to bring Hussein and members of his regime to the establishment of a national tribunal. The
justice that is fair, broadly viewed to be statute of that tribunal has been the subject of
legitimate, and conducted in a manner that is widespread comment by Iraqis and observers
relevant to the most important beneficiaries of outside the country. While many Iraqis and
such a trial: the people of Iraq. The questions some outside observers have supported the
then arise: What is the best means to conduct national tribunal as outlined by the Governing
these trials? What venue should be used? Who Council, many outside the country have called
should conduct the trial? for more comprehensive international
participation in the court, following the model of
This background analysis by Allison S. Cohen, the Special Court in Sierra Leone. Some have
International Human Rights Officer at the Jacob gone further, calling for an international tribunal
Blaustein Institute, aims to describe the possible to take place outside of Iraq.
venues for trying Hussein and some of the key
arguments on both sides while placing the THE POSSIBLE VENUES:
question in the context of larger international
justice issues. We are distributing this to In assessing the possible venues to bring
persons interested in international human rights Saddam Hussein to justice, two sets of questions
andjustice issues and welcome comments which are raised: where should he and members of his
can be sent to jbi(a>ajc.org. or (212) 891-1460. regime be tried and by whom? The national
— Felice D. Gaer, Director, JBI Iraqi Tribunal that was established December
10, 2003 has jurisdiction over the case. Yet,
The capture of Saddam Hussein on December three other options have been proposed by
13, 2003, has provided a dramatic opportunity experts writing in the international press: an ad
for the people of Iraq, and the world, to bring hoc international tribunal; a mixed
one of the worst human rights abusers of modern international/domestic court; and the
times to justice. There is ample evidence of International Criminal Court in the Hague.
crimes against humanity, war crimes, and
genocide committed by Hussein and his regime. Iraqi Tribunal: On December 10, 2003 , the
These crimes include the extermination of Iraqi Governing Council adopted a statute
approximately 100,000 Iraqi Kurds in the Anfal establishing the "Iraqi Tribunal for Crimes
genocide (including through the use of chemical against Humanity" to try perpetrators of
weapons), the killing of tens of thousands of genocide, crimes against humanity, and war
Shiites in the 1980's, the killing and decimation crimes. The Iraqi Tribunal's statute also gives
of the culture of the Marsh Arabs of Southern the court subject jurisdiction over three
Iraq, and torture, arbitrary arrest and other gross additional crimes under Iraqi domestic law: 1)
human rights abuses against opponents of the the manipulation of the Iraqi judiciary; 2) the
Baath party.1 wasting of national resources and squandering of
public assets and funds; and 3) the abuse of
TRYING SADDAM HUSSEIN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS
position and the pursuit of policies that led to internationals and local citizens serving as
war against an Arab country. The statute calls judges, lawyers, and staff. Thus, a special court
for a trial chamber consisting of five judges and for Iraq modeled after the SCSL would differ
an appeals chamber consisting of nine judges. from the Iraqi Tribunal as it is currently
These judges are to be nominated and appointed structured in a number of ways. There would be
by the Iraqi Governing Council, and are to be a requirement that there be international judges,
"persons of high moral character, impartiality lawyers, and staff operating alongside Iraqis (as
and integrity who possess the qualifications opposed to this being optional, with
required for appointment to the highest judicial internationals serving as advisors, and serving as
offices." The statute states that the Governing judges only if it is deemed necessary by the
Council, "if it deems it necessary", can choose to Governing Council). There would be formal
appoint non-Iraqi judges. The statute also calls UN participation in the special court, whereas
for the President of the Iraqi Tribunal to appoint the UN is not involved with the Iraqi Tribunal as
international advisors to provide assistance in it currently stands. Given the UN's participation
"the relevant aspects of international law and due in a special court, unlike the current Iraqi
process standards".2 Tribunal, it would likely prohibit the death
penalty.
Ad Hoc International Tribunal Established by
the United Nations: It would be possible for the International Courts: Ironically, although
UN Security Council to create an ad hoc tribunal created for situations like this, the International
for Iraq, like those established following the Criminal Court in the Hague is not a real option
genocides in Bosnia and Rwanda. The in the case of Saddam Hussein. Iraq has neither
International Criminal Tribunal for the former signed nor ratified to the Rome Statute, and even
Yugoslavia (ICTY) and the International if the Security Council specifically assigned the
Criminal Tribunal for Rwanda (ICTR) are case to the ICC, giving it jurisdiction, the ICC
located in second countries (the ICTY in the can only prosecute crimes committed after July
Hague, Holland and the ICTR in Arusha, 1, 2002. Another court would still have to
Tanzania), and the judges, prosecutors, and examine crimes alleged to have occurred before
staffs of these tribunals are primarily not from that date. The International Court of Justice
countries on which these courts are focused. ("the World Court") is not an option in this case
Politically, the creation of such a tribunal for either: only states (not individuals) can apply to
Iraq is highly unlikely: American support would and appear before the Court.3
be necessary for the creation of such a tribunal
by the Security Council. However, the US has DESIRED OUTCOME OF A TRIAL AND
made it clear that it supports national, rather than SUBSTANTIVE CRITERIA:
international trials, for Iraq.
There are several important purposes to having a
Mixed Domestic/International Special Court: trial to bring a perpetrator of gross human rights
Many non-governmental organizations and other abuses, like Saddam Hussein, to justice. First,
observers have been calling for the there is the deterrence factor: establishing the
establishment of a special hybrid rule of law and bringing perpetrators of abuse to
domestic/international court for Iraq, modeled justice can deter future crimes by other would-be
after the Special Court for Sierra Leone (SCSL). tyrants. A trial establishes the truth, providing
There are also mixed international/ domestic an opportunity to develop a public record of the
courts in East Timor and Kosovo, and one being responsibility for human rights abuses.
established in Cambodia. The SCSL was Establishing the truth can be an important part
established through a joint agreement between of the healing process for human rights abuse
the UN and the government of Sierra Leone. victims, giving them an opportunity to make a
Unlike the ad hoc tribunals, the SCSL is based public statement of the atrocities they suffered
in the country where the crimes were committed, and to have their experience publicly
in Freetown, Sierra Leone. The SCSL has both acknowledged. Trials provide an opportunity to
IRVING SADDAM HUSSEIN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS
punish perpetrators and to ensure that these of Physicians for Human Rights describes, these
individuals are never again in a position to carry types of trials require that "...voluminous
out these crimes again. A trial, by establishing documentary evidence that must be sorted,
individual responsibility for crimes rather than analyzed, and prepared for trials, the collection
allowing assumptions of collective guilt, can of physical evidence from mass graves
promote national reconciliation after a requiring] adequate funds, time, and expert
conflict. Judge Richard Goldstone, the former attention... ".5 Given the extraordinary skill and
Chief Prosecutor of the International Criminal meticulousness with which jurists in these trials
Tribunals for the former Yugoslavia and handled the task before them, the trials are
Rwanda, has stated that trials help to "... cut the widely viewed as fair, impartial, and
cycle of violence... If you visit procedural ly proper, with legitimacy by both
Rwanda... Belgrade or Zagreb or Sarajevo as I people in the country and observers outside.
did, you will be struck by the manner in which
so many people were involved in their own These ad hoc tribunals, however, have had some
history. Hatreds going back difficulties as well. Because the atmosphere in
decades... centuries... [When j ustice is not done, both the Balkans and Rwanda were not viewed
there are] terrible feelings of unrequited calls for as conducive to conducting trials in country
justice, and anger, frustration. It brought home (particularly with respect to the security of the
to me the importance of breaking that cycle by jurists and witnesses), the Security Council
making public at least what happened now."4 decided that it was preferable to situate the
tribunals elsewhere (the ICTY in the Hague,
Three criteria should be considered in Holland and the ICTR in Arusha, Tanzania).
determining how justice for Saddam Hussein However, because these trials have been
might best be achieved: fairness, legitimacy, conducted in such removed locations from
and relevance. where the crimes were committed, they have
been less relevant to the victims, bystanders, and
REFLECTIONS ON THE EXPERIENCES OF co-perpetrators/ sympathizers. Some argue that
OTHER PREVIOUS COURTS: they have therefore ultimately been a less
effective means of promoting reconciliation than
The question of how and where to try Saddam they might have been otherwise.6 The fact that
Hussein cannot be viewed in a vacuum: it national judges, lawyers and staff have had very
inevitably triggers a larger question about the little to no role to play in the ICTY and ICTR
efficacy of international justice mechanisms. has further distanced Bosnians and Rwandans
Given the US position in support of national from the process.
trials, it is highly unlikely that there will be an
ad hoc international tribunal established by the The experience in Kosovo can be informative
Security Council. However, the experiences of here as well. In 1999, after the war there,
the ICTY and the ICTR are informative in the UNMIK set up a system of justice using national
context of considering how best to achieve the Kosovar judges. The system did not work:
goals described above while meeting the three Kosovar Albanian judges were reported to show
criteria of fairness, legitimacy, and relevance. bias against Serb defendants and prosecutors
refused to prosecute Albanians. According to
The ICTY and ICTR have had some remarkable Richard Goldstone, many travesties of justice
successes, bringing to justice many of the occurred as a result of these biases.7
perpetrators of the genocides in Bosnia and
Rwanda. It is argued that these trials stopped THE CURRENT DIALOGUE ON THE TRIAL
the practice of denying locally at the national FOR SADDAM HUSSEIN:
level that these horrific offenses had taken place
at all. The war crimes, genocide, and crimes Saddam Hussein's capture has prompted a
against humanity trials at these tribunals have debate around the world about how best to
been very complicated. As Leonard Rubenstein achieve the desired outcomes of a trial described
TRYING SADDAM HUSSEIN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS
above while meeting the substantive criteria of was provided to him by many countries
fairness, legitimacy, and relevance. While some in the world."9
in the international community have supported
the Iraqi Tribunal, most have voiced serious • Witnesses andjurists may not be safe:
concerns about the national tribunal, with some Concern for the safety of witnesses and
calling for an international tribunal and others jurists if the trial were held in Iraq is
calling for a mixed domestic-international court. further a factor favoring international
participation, in the view of Carla Del
Arguments in Favor of a Process with More Ponte, the prosecutor for the ICTY.10
International Participation:
• International participation builds
• The court to be established by the national expertise for the future:
statute adopted by the Iraqi Governing Another argument for an
Council would neither be fair nor internationalized process is that a mixed
independent: Many international domestic/international tribunal has the
observers have raised concern that there added potential benefit of strengthening
is no requirement in the statute that there future domestic courts, by enabling
be international jurists working nationals to work together with
alongside Iraqi jurists (the statute makes internationals with experience with
such participation optional, "as deemed these types of cases, according to
necessary"). Particularly, there is a Human Rights Watch."
concern that those who served as judges
or practiced law under Saddam • The process through which the Iraqi
Hussein's corrupt and brutal judicial statute was developed was not
system would not be viewed as legitimate: Questions have been raised
independent or impartial, and a belief by international observers as to the
that the inclusion of internationals legitimacy and transparency of the
would enhance the credibility of the process through which the Iraqi Statute
tribunal. Many observers have argued was developed, given that, as Samantha
that few Iraqi jurists, if any, have the Power states, "the law was prepared by
expertise necessary to handle the the (Governing) Council's 25 members,
complexity of genocide or crimes all of whom were hand-picked by the
against humanity trials.8 U.S. Coalition Provisional Authority".12
The statute was not subjected to scrutiny
• Those outside Iraq have a stake in the or debate by any larger popular entity
trials: One argument for international before its adoption.
involvement in a trial of Hussein is
based on the past support that many Arguments in Favor of the Iraqi Tribunal:
countries gave his regime. Bakhtiar
Amin, a former Iraqi Kurdish exile who • Justice: Victims should be given the
founded the International Alliance for opportunity to try Hussein first: Some
Justice, stated: "For many years our argue that, as the most numerous of his
organizations have called for the trial of victims, Iraqis themselves must have the
Saddam Hussein by an ad hoc right to try Saddam Hussein. Feisal
International Criminal Tribunal, so as to Istrabadi of the Iraqi Forum for
judge his past crimes, but also to involve Democracy13 stated, "It's an atrocious
the international community in the trial suggestion that the people of Iraq ought to
of a man who was maintained in power forfeit the right to try the man who
for decades because the lack of reaction brutalized them for 35 years and who is
and thanks to the military arsenal that responsible for the deaths of 10% of the
people of Iraq".14
TRYING SADDAM HUSSEIN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS
a national trial (particularly as conducted
Qualified Iraqi judges can be found: In by the US-chosen Iraqi Governing
response to concerns raised about Iraqi Council) is less likely than an international
judges, some, like Feisal Istrabadi, argue trial to give Hussein a platform to "make a
that it would indeed be possible to find tu quoque ("you also") argument, and
Iraqi judges to lead the Iraqi Tribunal who accuse the Americans of sponsoring the
would be competent, independent and prosecution of his crimes while ignoring
impartial. "In a country of 25 million their own and those of their allies."18
people," he stated, "can we find a dozen or
two judges who are untainted and who are Other Issues:
highly competent? Absolutely. There are
judges who have retired. There were Political implications: The question of how to
servingjudges in... Iraq's judicial system bring Saddam Hussein to justice also has
who nonetheless enjoy high reputations for political implications. Because of the ICC's
having been incorruptible."15 jurisdictional limitations (the prosecution of
crimes only after July 2002) and the fact that
This is an opportunity for the Iraqi Iraq is not a party to the Rome Statute, the new
government to demonstrate its democratic criminal court is not able to take up this case
values to the world: Some argue that the unless the Security Council assigns the case to it.
new government should be given a chance Even then, it would not address crimes that were
to demonstrate its commitment to committed before July 2002, making another
democracy, fairness, and the rule of law in tribunal necessary to prosecute them. It appears,
contrast to the Hussein regime. however, that the US's disdain for the ICC has
played at least some role in its support for a
Trying Hussein and members of his party national tribunal. Human Rights Watch and
nationally would promote reconciliation others argue that part of the Bush
and social reconstruction: Another Administration's calculation is that the
argument for a national Iraqi Tribunal promotion of a local process rather than an
relates to the question of promoting internationalized one is "less likely to enhance
national reconciliation: that justice even indirectly the legitimacy of the detested
delivered locally by fellow Iraqis is an International Criminal Court."19
important step in reconstruction. Ruth
Wedgewood has argued, "local criminal Death penalty: There is a question of whether
justice and self-accounting have a key role or not the venue to try Saddam Hussein could
to play in the reconstruction of Iraqi impose the death penalty. Many of the
political culture. The condemnation of European powers, as well as the UN, would
Saddam's rule is something that Iraqis refuse to participate in any tribunal that could
need to see at close range... ",16 impose the death penalty. Many international
human rights organizations have also echoed
A national trial would lessen Saddam's this opposition to the inclusion of the death
ability to turn it into an international penalty in a tribunal. For example, Physicians
platform for propaganda: Some, like Paul for Human Rights stated: "It is not in keeping
Rosenzweig of the Heritage Foundation, with all the other recently established
argue that calls for an internationalized international systems for addressing crimes
trial are really a veiled attempt to use against humanity and genocide, and will only set
occasion of bringing Saddam Hussein to Iraq backward rather than forward in its effort to
justice as an opportunity to also bring the join the nations living under the rule of
US to trial for alleged complicity in and international human rights law."20 Since most
commission of war crimes.17 This Iraqi nationals are said to favor the death
argument is not based on jurisdiction of penalty, this could ultimately pose an obstacle to
the courts, but rather an interpretation that the creation of an international court. Because
TRYING SADDAM HUSSEIN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS
Iraqi domestic law allows for capital A formula that provides for a uniquely Iraqi
punishment, Feisal Istrabadi has stated that an process, with Iraqi ownership and engagement,
anomaly would be created if an internationalized infused with a degree of international
process did not include it, where "the most participation and expertise sufficient enough to
severe perpetrators of genocide and torture in ensure independence, impartiality, and fairness
Iraq will not be subject to the death penalty but is likely the best way forward. The shape of the
low-ranking officials...would...(because they actual tribunal that brings Hussein to justice still
would be tried) under Iraqi domestic law."21 remains to be finalized by the political actors
President Bush has stated support for capital and jurists concerned with this important
punishment in the tribunal, saying on December question. Only a process that is procedurally
16th, "let's just see what penalty he gets, but I fair (and seen to be fair), broadly viewed as
think he ought to receive the ultimate penalty ... legitimate, and is relevant to the people of Iraq
for what he has done to his people."22 will do justice and serve the memory of the
victims of Hussein's regime's terrible crimes and
CONCLUSION: help all Iraqis move forward from the horrors of
their past.
In the end, the question of what venue should be
used to prosecute Saddam Hussein and others in Allison S. Cohen
his brutal Baath regime is tied to broader February 2004
questions about international justice. For the
sake of the victims of his horrific crimes, their
families, the people of Iraq, the region, and the
world, this process should be done right.
Ultimately, the decision of how best to meet the
goals of establishing the truth, punishing
perpetrators, promoting national reconciliation,
providing acknowledgement for victims, and
deterring future crimes should be made in an
effort to best meet the criteria of fairness,
legitimacy, and relevance. What is the best
formula to achieve these simultaneous goals?
The experiences of the ICTY and ICTR suggest
that while purely international tribunals may be
broadly viewed as procedurally fair and
internationally legitimate, their distance from the
scene of the crimes makes them less relevant to
the victims. This lends a powerful argument for
conducting these trials in Iraq.
On the other hand, there have been serious
questions raised about the process by which the
statute for the Iraqi Tribunal was developed.
There are further questions regarding the
capacity of Iraqi jurists who were either
brutalized by or served in Saddam's regime to
provide a procedurally fair trial. Because there
has been no credible justice system in Iraq for
over 30 years, there are questions about these
jurists' expertise to conduct such trials.
TRYING SADDAM HUSSEIN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS
ENDNOTES
| See Roth, Kenneth. "Trying a Tyrant: Saddam Should Face an International Tribunal". The Forward. January 2, 2004 and
"Letter to the M e m b e r s of the Iraqi Governing Council", by Len Rubenstein, Physicians for Human Rights, December 16, 2003.
www.phrusa.ore/research/iraq/release 121603.html. Accessed January 14, 2004.
2
Iraqi Governing Council, "The Statute of the Iraqi Special Tribunal", Issued December 10, 2003.
International Court of Justice, "General Information: Court at a Glance," http://www.ici-
cii.org/iciwww/igeneralinformation/icittnnot.html. accessed December 29, 2003. Certain UN bodies may also apply to the World
Court for advisory opinions, but these do not concern individual cases.
4
Kreisler, Harry. "Law and the Search for Justice: Conversation with Justice Richard Goldstone", Conversations with History.
Institute of International Studies, U C Berkeley, http://globetrotter.berkelev.edu/people/Goldstone/gold-conO.html accessed
January 13, 2004.
"Letter to the M e m b e r s of the Iraqi Governing Council", by Len Rubenstein, Physicians for Human Rights, December 16, 2003.
www.phrusa.org/rescarch/iraq/relcase_l21603.html. Accessed January 14, 2004.
6
Richard Goldstone states in his December 15, 2003 op-ed in the Los Angeles Times, "Criminal trials, to the extent possible and
consistent with fairness, should be held as close as possible to the crime scenes...distancing the trials from the victims is
unfortunate and ultimately makes those trials less relevant and less effective as an instrument for reconciliation."
7
Richard Goldstone, "Justice in Iraq", a public talk at Fordham Law School, January 15, 2004.
8
See Power, Samantha. "How to Try Saddam Hussein: Unpunishable". The N e w Republic. December 29, 2003; Roth,
Kenneth. "Trying a Tyrant: Saddam Should Face an International Tribunal". The Forward. January 2, 2004; "Letter to the
Members of the Iraqi Governing Council", by Len Rubenstein, Physicians for Human Rights, December 16, 2003.
www,phrusa.org/research/iraq/rclease_ 121603.html. Accessed January 14, 2004; Goldstone, Richard. "International
Involvement is Essential in Establishing a War Crimes Court", Los Angeles Times. December 15, 2003; and Paul Van Zyl on
Newshour with Jim Lehrer, "Trying Saddam Hussein", December 16, 2003. www.pbs.org/newshour/bb/middle east/july-
decO3/iraq_ 12-16.html. Accessed January 14, 2004.
9
Alliance Internationale pour la Justice, Aide Medicale Internationale, and Fondation France Libertes, "Arrest of Saddam
Hussein", December 15, 2003. www.i-a-i.org/article956.php7impH&nornmenu=Press+Releases&itemliste=125. accessed
December 26, 2003.
10
Del Ponte, Carla. "Trying Saddam Outside Iraq the Best Solution". Agence Presse. December 27, 2003.
11
Human Rights Watch, "Saddam Hussein's Trial: Bringing Justice for the Human Rights Crimes in Iraq's Past",
www.hrw.org/english/docs/2003/12/19/iraq6770 txt.htm. accessed December 26, 2003.
12
Power, Samantha. "How to Try Saddam Hussein: Unpunishable". The N e w Republic. December 29, 2003.
13
The Iraqi Forum for Democracy is a nonprofit, nonpolitical organization that aims to promote democracy and democratic
values for Iraq by peaceful means.
14
Feisal Istrabadi on Newshour with Jim Lehrer, "Trying Saddam Hussein", December 16, 2003.
www.pbs.org/newshour/bb/middle east/july-decO3/iraq 12-16.html. Accessed January 14, 2004.
15
Feisal Istrabadi on Newshour with Jim Lehrer, "Trying Saddam Hussein", December 16, 2003.
www.pbs.org/newshour/bb/middle east/iuly-decO3/iraq 12-16.html. Accessed January 14, 2004.
16
Wedgewood, Ruth. "Iraq's Nuremberg", The Wall Street Journal. December 16, 2003.
17
The Heritage Foundation. "Saddam Hussein's Trial", by, Paul Rosenzweig.
www.heritage.org/Research/MiddleEast/wm384.cfm?
18
Bass, Gary. "Crime and Punishment: H o w the trial of Saddam can serve the victims - not just the victors" The Boston Globe
December 2 1 , 2 0 0 3 , p. D l .
19
Roth, Kenneth. "Trying a Tyrant: Saddam Should Face an International Tribunal". The Forward. January 2, 2004.
20
"Letter to the M e m b e r s of the Iraqi Governing Council", by Len Rubenstein, Physicians for Human Rights, December 16,
2003. www.phrusa.org/research/iraq/release 121603.html. Accessed January 14, 2004.
21
Feisal Istrabadi on N e w s h o u r with Jim Lehrer, "Trying Saddam Hussein", December 16, 2003.
www.pbs.org/newshour/bb/middle east/julv-decO3/iraq 12-16.html. Accessed January 14, 2004.
22
"Bush: Saddam Should Face Death Penalty." December 17, 2003,
http://www.cnn.corn/2003/WORLD/meast/l2/16/spri.irq.main/. accessed January 7, 2004.
TRYING SADDAM HUSSEIN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS The Jacob Blaustein Institute for the Advancement of Human Rights (JBI), founded in 1971, strives to narrow the gap between the promise of the Universal Declaration of Human Rights and other international human rights agreements and the realization of those rights in practice. To this end, JBI strengthens scholarship designed to clarify basic human rights concepts; helps develop tools and strategies for protecting human rights; conducts programs that nurture and strengthen human rights organizations worldwide; and supports education and training programs to promote knowledge and use of international human rights instruments and institutions. Robert S. Rifkind, Chair, Administrative Council. Felice D. Gaer, Director. THE JACOB BLAUSTEIN BUILDING • 165 EAST56™STREET • NEWYORK, NY 10022-2746 • 212-891-1314 • FAX: 212-891-1460
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