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Debate Club

Where should Saddam Hussein be tried?

Robert L. Howse and Ruth Wedgwood debate.

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The Iraqi Special Tribunal has announced that it hopes to bring high-ranking members of Saddam Hussein's government—including Iraq's deposed leader—to trial during 2005. But Baghdad has complained that the United States seems hesitant to try Hussein before the inexperienced tribunal. Hussein's lawyers have also raised the possibility of holding the trial in the neutral venue of Sweden.

Where should Saddam Hussein be tried?

Robert L. Howse is Professor of Law at the University of Michigan Law School. Ruth Wedgwood is Edward B. Burling Professor of International Law and Diplomacy at the School of Advanced International Studies at Johns Hopkins University.

Howse: 7/5/05, 09:05 AM
International lawyers have a "romantic attachment" to the idea of putting deposed tyrants on trial, all the more so where the proceedings themselves are international. But to debate seriously what should happen to Saddam, we need to step back from "romantic attachment" and ask what purposes trying him can or cannot serve.

Supporters of trials often cite the following benefits: deterrence, both general and specific; the "messaging" value of showing that human rights are taken seriously; the vindication and healing of victims; and post-conflict political and social reconciliation. Yet the evidence is woefully inadequate and ambiguous to the extent where it even exists (consider just one example: Steven Ratner and James Bischoff's International War Crimes Trials: Making a Difference?).

I will come clean: I'm a skeptic when it comes to criminal trials and their capacity to serve any or all of the noble purposes vaunted by human rights advocates. I've never seen a shred of evidence that tyrants and monsters are deterred from committing atrocities for fear of criminal prosecution: while they are in power, they can't be prosecuted for all practical purposes, and when they fall from power the reprisals they are likely to face from their own people ought to strike far more terror into their hearts than a jail cell in Holland. Consider the Ceaucescus. On the other hand, a nasty habit has evolved of labelling as war criminals legitimate leaders in liberal democracies who make hard decisions about war and peace; this sort of pacifist McCarthyism has even extended to calling some conscientious legal scholars "war criminals" because they take dissenting positions from predominant academic views on difficult trade-offs between the requirements of security and breadth of human rights. Unlike the Saddams and Ceaucescus of the world, responsible and legitimate leaders, and well-meaning scholars, have a lot to lose—not just from actual prosecution for "war crimes (still a remote prospect) but even from being tried and convicted, as it were, in the media or the pages of law journals.

As for victims, their stories are sidelined and distorted by the prosecutor's need to attain a conviction; they often feel cheated if not traumatized by the process. Criminal justice rarely leads to victims being provided with the therapy and material support they need to rebuild their lives.

What of political and social reconciliation post-conflict? My own experience, based on participating in a team that in 1994 advised the newly elected South African government on its options for dealing with the crimes of Apartheid, is that Truth and Reconciliation Commissions are a more promising avenue. Criminal trials, at the international level risk being seen as "imposed" on a conflict-torn society from outside. Domestic trials (and sometimes international ones, too) will always be portrayed by the losers as "victor's justice," no matter how fair the procedures and unbiased the judges. No matter how fair the procedures and how careful the safeguards, it is simply too easy to portray convictions as "victor's justice." While criminal trials offer a settling of scores, what political and social reconciliation require is a giving of accounts in which both victims and perpetrators take part.

Still, in Saddam's case there may be little choice but to have a trial. Truth Commissions aren't effective in some contexts, particularly those where the perpetrators aren't ready or willing to admit and account for past wrongdoing. Saddam is in captivity and there is a limited range of possibilities as to what can be done with him: Summary execution would violate his human rights, but so, arguably, would releasing him into the street to be torn-limb-from-limb by his former victims and current enemies. Since he is within Iraq's jurisdiction, under international law Iraq may have some obligation to prosecute, unless justice could be done by sending him elsewhere.

Wedgwood: 7/5/05, 01:33 PM
There are at least three good reasons to try Saddam Hussein. The first is to revisit and review what his regime did to the Iraqi people. In the current difficulties of the insurgency, with loss of life on all sides, some are inclined to forget the nature of the regime that was removed. Saddam held Iraq in thrall for twenty years, matching a bellicose foreign policy with a stunning ruthlessness at home. It is well to be reminded, through the voices of family members and survivors, what Ba'athism looked like on the ground. The chemical attacks in the north, the deliberate destruction of the Marsh Shi'a in the south, and the gruesome fate of political opponents and their families were not ordinary authoritarian politics. It was an efficient violence that ruled out autonomous political change. To be sure, the last two years of war have revealed Saddam's "fall-back" strategy of debellatio—his attempt to lay waste to Iraq, by destroying the infrastructure and assassinating democratic leaders. But the pre-war regime prefigured the violence of the present period, and shows that Ba'athism has no claim to the pride of nationalism.

The second reason for a trial is to remove Saddam from the scene, once and for all. Iraqis dread the thought that Saddam will, somehow, connive a return to power with his Ba'athist apparatus. The toll of dead and wounded among U.S. forces, the ferocity of foreign fighters, and Europe's continued indifference, make some Iraqis reluctant to say that a "tipping point" has been reached in the struggle to establish democracy. After a form of rule that was so personal, Saddam's trial and conviction would help to persuade Iraqis that there is no going back, and certainly, no return to the Tikrit tyrant. Under the rule of law, one cannot simply throw a dictator to the crowd. A trial is the only long-term option, although the U.S. and the new Iraqi government would be entitled to hold Saddam as a captured combatant so long as civil conflict continues.

Having a trial does not mean repeating the experience of the Yugoslav tribunal. The snail's pace of the Hague prosecution of Slobadan Milosevic does not have to be copied. The initial decision of the Iraqi tribunal to use selected and exemplary instances of Saddam's ruthlessness is a wise one. So, too, the Iraqi tribunal may look critically at the defendant's misuse of the Hague trial. The right to defend a criminal case does not grant microphone privileges for a political rally for a dying regime.

The third reason is to channel any impetus for violent revenge. One of the classical reasons for criminal law is to provide an appropriate forum for retribution, along with more ordinary hopes for incapacitation, deterrence and (in a different setting) rehabilitation. The rule of law takes account of the fury stirred by acts of wanton violence. To show that there is a price to be paid, after a fair trial, for the deliberate use of violence against innocent people, is one reason why prosecutions became a public function. After decades of misrule, this may be important in Iraq. The Truth and Reconciliation Commission in South Africa depended on the willingness of both sides to acknowledge the moral failure of an apartheid society. The continued defiance of Ba'athist violence does not permit the solution reached between South African blacks and the Afrikanner community.

That said, I agree that the language of war crimes is not to be cheapened. It does not apply to those instances where reasonable moral judgment on how to conduct a war may differ. But Saddam's crimes were beyond the pale.

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Howse: 7/6/05, 09:19 AM
I certainly agree that one benefit a trial would offer is provide a record of the "nature of the regime that was removed" and I also agree that such a record would, generally speaking, show why it was worth paying a heavy price to get rid of Saddam. I doubt though that the kind of evidence likely to be presented in a trial will show that "autonomous political change" was impossible in Iraq; even if a trial would confirm that Saddam was a morally justified target given his record of oppression, we shouldn't expect a trial to resolve the question of whether alternatives to war might eventually have succeeded in reigning him in and/or bringing him down.

This being said, I wonder whether the current situation in Iraq is propitious to achieving the objective of setting the record straight through a criminal trial. Will victims and their families be able to testify without fear of reprisal? In mentioning the example of Milosevic, Ruth, you allude to the risk that Saddam could use the occasion to take attention away from his own atrocities and instead put on trial the recent war and its leader: the United States. Certainly, one can imagine that Saddam has been a keen student of Milosevic's forensic tactics. Ruth, you believe that there are ways of curbing such behavior. You say that "the right to defend a criminal case does not grant microphone privileges for a political rally for a dying regime." That sounds good in an op-ed, but raises more questions than it answers. Limits placed on Saddam's ability to conduct his defense as he pleases will be carefully scrutinized in the court of public opinion, international and Iraqi. Such limits could easily appear to justify the characterization of a show trial or victor's justice. The need for a series of considered and responsible decisions about what these limits are could well produce a frequently disrupted and long drawn out trial. Given the dilemmas the tribunal faces, I wonder why you're so confident that it will be able to do better than the court in the Hague faced with Milosevic.

You're right to suggest that an end to violence among the groups in conflict is a pre-condition for an effective truth commission; the experience with attempting truth commissions before conflicts have really ended bears this out. But I also wonder whether trying Saddam now will be a distraction from the task of confronting the violence and moving toward national reconciliation. How significant is the fear among Iraqis that Saddam might come back? I just don't know. If Saddam were executed after a speedy trial, perhaps that would make some Iraqis feel more secure; it could just as easily be a further provocation to violent resistance, and win new recruits tot he insurgency. You make much of the distinction between legal justice and revenge—but I wonder whether, in a context where violent struggle with Ba'athist elements continues on a daily basis, such an execution would really appear as legal justice rather than revenge.

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Wedgwood: 7/7/05, 01:41 PM
It's true that to have an effective trial, witnesses may need to be accorded special protection. This is a problem that the Yugoslav tribunal never fully solved. Some inside members of Saddam's hierarchy may be headed to jail anyway, and willing to trade a shorter term of years for the risks of testifying. The culpability of Saddam can also be established through principles of command responsibility. As used by U.S. prosecutors in the Yamashita trial, this permits criminal culpability on a showing of gross negligence or recklessness, within a direct military chain of command—i.e., a wanton failure to give appropriate orders to prevent atrocities. Thus, even if one cannot find a written order or post hoc approval of the chemical attacks against Kurds in the North, Saddam's failure to take action to stop the attacks may suffice. The same pattern of evidence that establishes criminal negligence may also establish indirect proof of intent.

It takes a special skill to run a tight courtroom and to keep the inquiry focused. When a judge faces the author of Get Out, You Damned One, who still claims to be president of Iraq, it will also take bravery and self-possession. But the young investigative judge, Raid Juhi, who conducted the initial questioning of Saddam Hussein, was poised and undaunted, and a panel of five judges may have a collective courage. Saddam's claim of "sovereign immunity"—that his office precludes any liability for criminal acts against civilians—will look most unattractive in the face of a new democratic government in Iraq.

Under American constitutional law, a defendant can act as his own lawyer. And of course, a defendant can, as of right, take the witness stand and testify, subject to cross-examination. But in either event, a judge still can limit a defendant to issues pertinent to the elements of the crimes. In his trial under the statute of the Yugoslav tribunal, Milosevic acted as his own lawyer, often hectoring witnesses. The court appointed amicus curiae to be available in a pinch—but Milosevic declined to consult with them at all. Judge Richard May presided with great patience, but perhaps could have moved the trial more quickly, cutting off more of Slobodan's perorations.

Article 14(d) of the International Covenant on Civil and Political Rights states that a defendant has the right "to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing." There has been some debate within the human rights and war crimes community on how article 14 should be read—whether a defendant necessarily can act as his own lawyer. In the aftermath of the Milosevic trial, it has been surprising to see a number of respected voices suggest a variant reading. In any event, if Hussein engages a bevy of lawyers to represent him, he will not retain a right to conduct his own examinations.

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Howse: 7/8/05, 07:57 AM
I don't doubt that some individuals can be induced to testify, especially under witness protection. And, yes, there is the possibility of getting a conviction based on the theory of command responsibility. But will a trial that proceeds along such narrow lines really serve the purposes of political education and transformation? Could it possibly provide a catharsis for victims? Such a trial will not go far towards providing a comprehensive accounting of what happened or the degrees of responsibility.

Saddam's claim of "sovereign immunity" provides a window to put the war on trial; it makes his claim that he remains the legitimate leader in Iraq an actual element of his defense. He may not end up hectoring witnesses as did Milosevic, but an open, public trial, the focus of global media attention, will doubtless present an opportunity for Saddam, one way or another, to throw the accusation of war crimes back at Americans and our allies.

Ruth, you mention the skills of Raid Juhi, the investigative judge who first questioned Saddam; these, I don't doubt. As for the collective courage of a panel of five justices, I could more easily imagine that they would have (sincere) disagreements among themselves as to how to manage the trial given the dilemmas at issue, which would in itself cause delay and complication. I have a great deal of respect for the Iraqi government, and the issues I raise are issues that any prosecutor and tribunal would need to confront in the circumstances. If Saddam is to be tried, I do think it is important that it be done in Iraq by Iraqis. Confronting the past is a necessary part of taking charge of their own destiny. One reason why the trials of alleged Serbian war criminals have had, if anything, a negative impact on political and social reconstruction in Serbia is they are seen as an imposition from the outside and an accuse for Serbs to confront each other about what happened. But if it is to be viewed as an agent of justice not revenge, the Iraqi government needs to be seen as a government of all the people—including the Sunnis and indeed the millions who once supported Saddam but who bear no responsibility for atrocities. This is of course the challenge of constitution building and, more generally, national reconciliation. Wouldn't trying Saddam make more sense when the government is further along in meeting those challenges? At which time, also, it might be possible to think about a truth commission.

Wedgwood: 7/8/05, 06:14 PM
There are two issues not mentioned yet in our conversation about Iraq that deserve a broader audience. The first is the claim, made by at least one prominent NGO, that only an international tribunal could fairly try a major war criminal. This cuts against the doctrine of the International Criminal Court itself, which looks to national court systems to provide the major venue for the trials of war crimes, through "complementarity." It also flies in the face, as you point out, of the need to establish local credibility for these trials. The United Nations' role in Iraqi economic sanctions, the weapons inspections, and the authorization for the first Gulf war, means that even on its own terms, the idea of a 'neutral' multilateral organization would fail. Some members of the Sunni community, and especially the Ba'athists, would question the United Nations as much as the United States. In addition, the importance of vernacular language in these trials is immense—both for popular understanding, and even for accurate fact-finding. A trial conducted in English and French might seem inapropos to local speakers of Arabic.

The second issue is the death penalty, and the tension between international organizations and some national criminal justice systems. The Second Protocol of the International Covenant on Civil and Political Rights invites state to abolish the death penalty per se, and the procedural review of trials among states that have joined the 'individual petition' mechanism of the First Protocol is particularly rigorous in the jurisprudence of the U.N. Human Rights Committee in death penalty cases. But there are also major states, such as Japan and the United States, that have chosen not to join the First or Second Protocols, and the Human Rights Committee has never held that the death penalty is per se a violation of the Covenant.

The Soering decision of the European Court of Human Rights departs from the usual model of horizontal cooperation in criminal justice, by forbidding the extradition of defendants charged with capital crimes from abolitionist states, unless the death penalty is foresworn in the particular case by the receiving state. This same idea was invoked by the U.N. Secretary-General to 'forbid' any cooperation in training or other assistance between the international tribunals for Yugoslavia and Rwanda, and the Iraqi court. The Secretary General may have exceeded his legal powers here, since the two ad hoc international tribunals were established by the Security Council, and are not agencies subject to his direction. In addition, this seawall looks away from the idea of shared learning in the trial of international crimes. There are conscientious members of the international war crimes bar who have provided assistance to the Iraqi tribunal. But it is unfortunate that the United Nations, in this important setting, refused to provide 'lessons-learned' or any other assistance to the trial process of a sovereign state and a new democracy.

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