The apprehension and arrest of Sadism Hussein, the former President of Iraq, offers new opportunities to advance the rule of law. Vengeance begets vengeance. As was demonstrated at Nuremberg after World war Two, even the vilest criminal deserves a fair trial. The world legal order is gradually moving toward a tribunal competent to try all international criminals but, unfortunately, we are not yet there. What should be done now? Let us consider certain basic principles that should be respected.
The offenses attributable to ex-President Hussein since he came to power range from the supreme international crime of aggression, to a wide variety of crimes against humanity, and a long list of atrocities condemned by both international and national laws. It may be anticipated that the accused, will maintain his innocence and will try to justify all of his actions as being lawful and necessary in the national interest. He will seek to implicate the United States and its allies. References to the Deity will be asserted to gain support of his follower at home and abroad.
A fair trial would achieve many goals. The victims would find some satisfaction in knowing that their victimizer was called to account and could no longer be immune from punishment for his evil deeds. Wounds can begin to heal. The historical facts can be confirmed beyond doubt. Similar crimes by other dictators might be discouraged or deterred in future. The process of justice through law, on which the safety of humankind depends, would be reinforced.
The existing temporary tribunals created by the United Nations Security Council to cope with the genocide and atrocities committed in Yugoslavia and Rwanda in the early 1990s (to the everlasting shame of the world community) have very restricted temporal and territorial jurisdictions. Iraq is beyond their legal reach. A new interim Security Council court is conceivable but unlikely to be able to overcome political obstacles quickly. The new permanent International Criminal Court (ICC) in the Hague, faced with misguided opposition by the United States, lacks jurisdiction over crimes committed before July 2002. It cannot intervene in Iraq.
Perhaps the most tempting, but probably the worst, alternative would be for the United States to subject its captive to summary judgment and prompt execution by a military court. It would make a martyr of the criminal whose loyal supporters would likely be enraged to increase assaults on Americans wherever possible. The Nuremberg Principles, which honored the US and the rule of law, would be undermined.
The best hope for a speedy trial seems to lie with the Coalition Provisional Authority which on December 10, 2003, a few days before Saddam Hussein’s capture, issued a “Statute of the Iraqi Special Tribunal.” Here too, certain cautions are in order. A fundamental principle of the ICC, already set up in the Hague but not yet operational, makes clear that the nation state of the accused shall always be given priority if it is able and willing to provide a fair trial. The wording of the Iraqi statute calls for war crimes trials run completely by Iraqis but also allows the use of non-Iraqi judges if the Governing Council deems it necessary. It should be possible for expert help to be recruited not merely as judges but also to assist the prosecution, defense and administration so that it is obvious to all that trials and judgment will be fair in every way.
Following the Nuremberg precedent, the first trial should include leading accomplices either in custody or in absentia. Speed is important but the proceedings must be carefully prepared and time limits set on both prosecution and defense to present their case. Not every crime need be included in the indictment. There will be enough evidence readily on hand to justify any sentence. Trials of lesser offenders can follow.
Whether a remorseless mass killer should be sentenced to death is a difficult question. There can never be a balance between the lives of a few mass murderers and the lives of their countless victims. Humanitarian law has moved away from imposing death as a penalty. It should be left to Iraqi judges to decide what is most appropriate to bring peace and reconciliation to their war-ravaged country.
*Benjamin B. Ferencz was a U.S. prosecutor at Nuremberg. He is a member of the Nuclear Age Peace Foundation’s Advisory Council. His web site is www.benferencz.org.