Baltimore Sun’s BEST party in 2 weeks

THE TRIAL OF A TYRANT

THE BALTIMORE SUN

The trial of Saddam Hussein will not only determine the future of the deposed dictator, it will also have a great influence on the future of Iraq, laying the foundation for its legal system while helping to write the history of three decades of darkness, telling the story that Iraqis will take into their future.

This trial is so important that it is no surprise it is a microcosm of the problems and possibilities that accompany almost every aspect of the United States' occupation.

Bringing Hussein to justice must be a delicate balancing act between unilateral action and international involvement, between respect for Iraqi sovereignty and insistence on appropriate standards of jurisprudence, between recognizing the realities of a sketchy security situation and not being paralyzed into inaction.

Basic decisions remain. Where will the trial be held? Under whose auspices? Who will be its judges? Will the death penalty be a possible punishment? How quickly can a trial get under way without seeming to be a rush to judgment? How long can it be delayed and still be seen as bringing Hussein to justice? How far down in Hussein's Baathist hierarchy will these trials reach? The list goes on.

Early remarks from the Bush administration indicate preference for a trial in Iraq, run by Iraqis. This does not surprise Michael Van Alstine, a professor of international law at the University of Maryland School of Law.

"This could be a cathartic moment in terms of forming a functioning legal system, to have a trial that tries and convicts Hussein with appropriate, fair legal procedures," he says. "There are also serious downsides to doing it in Iraq. If it does go wrong, it could certainly backfire easily."

And there are many ways it could go wrong - if it turns from a respected legal proceeding into a political show; if it does not live up to international judicial standards; or, perhaps most devastating, if a bomb goes off in the courtroom, or if witnesses or lawyers or judges are killed.

"If there is peace and security, I would support having a trial in Iraq," says Richard Goldstone, the South African judge who was the first prosecutor of the United Nations' War Crimes Tribunal for the former Yugoslavia. "I always believe trials should take place as close to the scene of the crime as possible. That is important to the victims and victims are your most important customers in this situation.

"But you know you can't have this sort of trial going on if there are car bombs going off outside the courtroom," he says. "You need a calm setting for judges, prosecutors and defense counsel. You also can't have thousands outside the court baying for blood."

Goldstone says it is most important that any trial be scrupulously fair. "It can't be a rushed business. There is only one way of conducting a fair trial and to do it properly takes time," he says. "It takes a least a year to craft an indictment, more time to prepare a defense. I can't see this thing happening overnight."

Goldstone and others wonder whether, after decades of dictatorship, Iraq has enough of a legal infrastructure to put on such a trial. "I can see some combination of Iraqi and international judges, perhaps some from other Islamic countries," he says.

As for the location, it is hard to come up with a neighboring country that would be suitable or willing to host such a security nightmare. Taking it to Europe or the United States would lead to other problems.

"A trial outside of Iraq might solve the security issues, but it runs such a risk of not having credibility with the Iraqi population that it wouldn't be worth it," says John Lampe, a fellow at the Woodrow Wilson Center for International Scholars.

But he still has fears about having it in Iraq, noting that former Yugoslav President Slobodan Milosevic, who is on trial at the Hague in the Netherlands, had so many supporters in Serbia, his trial had to be moved for everyone's safety.

"Since we do not want to move Saddam outside Iraq, I do fear that the security situation needs to be sufficiently better than it is now," says Lampe, a history professor at the University of Maryland, College Park.

Lampe does not see a trial as an all-Iraqi production. "I think avoiding any international involvement will be impossible, given the state of the judicial system in Iraq," he says.

One problem with getting international judges is the death penalty. Bush has virtually endorsed it for Hussein, as have many in Iraq. But that would mean little cooperation from European countries where the death penalty is seen as a violation of international law.

For that and other reasons, few see the possibility of Hussein's trial following the same route that led to the court at the Hague for accused Balkan war criminals and the one in Arusha, Tanzania, trying those accused of genocide in the 1994 massacres in Rwanda.

Those were set up by the United Nations Security Council, which could be difficult for the trials of Hussein and his henchmen, given the strained relationship between the United States and the United Nations over Iraq.

A better precedent could be the trials that really began contemporary concepts of post-war justice and international criminal law - the Nuremberg trials of Nazis after World War II.

"I think the Nuremberg trials are a valuable precedent for what is taking place now," says Jeffrey Herf, a historian of Germany at the University of Maryland, College Park.

Herf notes that the Allies began planning for the trials in the middle of World War II, "especially as news about the various atrocities and crimes against humanity starting coming out.

"The Allies wanted to make sure that the defeat of Nazi Germany on the battlefield was reaffirmed in the post-war period. ... Just because you defeated the army, that does not mean that Nazism is dead," he says.

The United Nations had not been formed in 1945, and Germany did not have a government until 1949, so the trials were in the hands of the occupying powers. Herf sees a hybrid of that in Iraq. "I hope to see some sort of arrangement that is controlled by the Iraqi governing authority but under the American and British occupying powers," he says.

The Nuremberg trials established the primacy of international laws that might be used in any trial of Hussein. Van Alstine says it would be easy to charge him with genocide for acts against the Kurdish and Shiite populations because Iraq is a signatory to the international genocide treaty.

Hussein also might face charges of torture and crimes against humanity because his actions, Van Alstine says, could have violated "customary international law, the idea that a universal practice among countries is so well established that it is viewed as substantially the same thing as a legal obligation."

Torture and mass murder would fall under that rubric, Van Alstine says.

Herf notes that the Nuremberg trials were so well conducted - there was an effective defense and several acquittals - that most Germans accepted the verdicts.

"Some German nationalists saw them as victors' justice, but polls at the time showed that 50 [percent] to 60 percent of Germans saw them as fair," he says. "It was important that they established the principle of individual responsibility because they were really about re-establishing the rule of law in Germany."

The evidence that came out was so meticulously researched and presented that it established the history of the Nazi era. "After Nuremberg, you were politically dead in Germany if you suggested Auschwitz did not exist or that there were no gas chambers or that the military were a bunch of heroes," Herf says. "That put you outside the pale of respectability. And that was very important in helping defend liberal democracy after 1949."

Herf says there is a similar opportunity in Iraq with the trials of Hussein and other Baathist officials. "One of the things these trials can do is give voice to the people who suffered under this government, to see justice done. It is one of the fruits of victory. ... We should take advantage of that.

"The Hitler myth collapsed in Germany and I think the myth around Saddam Hussein will also collapse," he says. "It is a very, very important contribution to democracy to have a full accounting of what happened."

Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad
59°