Prosecuting Saddam: Vendetta or Justice?

“Ladies and Gentlemen, we got him” and with these historic words the Coalition Provisional Authority head in Iraq, L. Paul Bremer announced the capture of the deposed Iraqi President to the waiting American and international media. But after assigning various monikers to Saddam Hussein and his ruling clique, primarily to underline just how important Saddam was to the Americans, when you have the person in question, beyond the immediate euphoria of the capture there was the nagging problem that needed to be addressed – how does one prosecute Saddam?

Consider the dilemmas. With the hype being built around Saddam, before and after the war, there is no doubt that a certain degree of justice would have to be delivered. But how is this justice to stand the legal scrutiny of history? The Iraqi Governing Council had only recently (December 10) established a judicial commission that will be setting up a special court system to investigate and prosecute former members of the government. The crimes that they would be trying were classified as genocide, crimes against humanity and war crimes (as reported in the recent Human Rights Watch piece). The establishment of the judicial commission is in itself a belated effort to prosecute the deposed ruling clique of the previous regime. For instance thirty-seven of the fifty five, advertised on the deck of the most wanted cards, were in Coalition captivity by August 22 this year. There had been no attempts of prosecuting them until recently. Secondly the judicial system of Iraq, done in by years of ineffective functioning, may not be able to produce the jurists needed for trying people charged with crimes such as genocide or even war crimes. Then again, prosecuting members of Saddam Hussein’s inner circle calls for a different approach from prosecuting Saddam Hussein himself. Justice for Saddam Hussein would have to be delivered by Iraqis, but in a manner that eludes criticism and appears just. And this is where the structure of the recently set up judicial system in place in Iraq, comes into focus.

International experts are calling for Saddam’s trial to be conducted under the joint supervision of a tribunal consisting of international and Iraqi experts. Doing this, they say, would ensure the evenhandedness of the trial and the judgment. Unfortunately conflicting connotations can be construed from a mere reading of the tribunal’s statute. While article 4 of the charter of the judicial commission allows the Iraqi Governing Council to appoint “non Iraqi judges who have experience in the crimes encompassed in this statute”, article 28 of the same states that “all judges shall be Iraqi nationals”. Then there are the calls for a death penalty, coming famously from President Bush himself (who also says that any punishment for Saddam should be decided upon by Iraqis themselves); the daughters of Saddam meanwhile, in exile in Jordan, are calling for an international court to try their father which could give them a chance to provide him with defense lawyers that could argue a case out. Lastly there remains the lasting incongruity on Saddam’s legal status. While he is being currently treated as a prisoner of war, according to the established Geneva Conventions, whether or not he is tried under the Third or Fourth Conventions remains a question mark. This is primarily because the Third Convention is applied to members of the armed forces, who are required to merely state their basic details such as name, rank, position held etc. All other information they may decide to give is purely voluntary. Persons held and charged under the Fourth Convention on the other hand have no such provision. Lastly and most importantly, charging and trying anyone under categories of crime such as genocide or crimes against humanity would require carefully collecting and corroborating extensive mounds of prima facie evidence, the evidence on whose basis the prosecution would build its argument and evidence which will eventually be used for conviction.

With so many questions remaining unanswered the fate of Saddam Hussein, however bleak, is ambiguous to say the least. Justice has to be delivered by the Iraqis, justice has to be meted out through a judicial system that can be favourably compared with international parallels, justice which does not appear to be a case of vengeance and justice has to be delivered after carefully applying the standards required in the trials of war crimes, genocide and crimes against humanity. Can it be delivered? It remains a tall order for the Americans as well as the IGC to deliver. What could however give us an insight into the future course of action the US may adopt vis-à-vis Saddam comes from a US Senate resolution passed in March 1998. A largely symbolic resolution it called for the United Nations war crimes tribunal to bring Saddam Hussein to trial for his war crimes.

Iraq and Nation Building

November 15, 2003 can be seen as a red letter day for the task of nation building in Iraq for on this day the Agreement on Political Process was signed between the US led Coalition Provisional Authority (CPA) and the Iraq Governing Council (IGC). According to this agreement the CPA was to hand over civilian power to a sovereign Iraqi government by June 2004. The mission for the CPA and the IGC, laid out by this agreement, appears to be onerous, yet it is not the task at hand that ought to be examined rather the causes that called for a change in US led Coalition Authority’s vision of its long term presence in Iraq.

Firstly this agreement represents a complete turn around for the US led authority on its previously specified plan on presence in Iraq. Under the initial proposal by Paul Bremer, the return of self rule in Iraq was to have been the result of a long drawn process, spread over a period of four years and seven points. At the earliest this proposal sought the submission of a draft on how the constitution for Iraq ought to be drafted by December 2003. The November 15th agreement however specifies the transfer of power from the CPA to an interim Iraqi government earliest by June 2004. This turn around can be attributed to a number of reasons examined below.

The current US position is primarily a tacit acknowledgement of ground realities in Iraq. On the one hand it highlights the decline in domestic support for the US led occupation of Iraq primarily due to the mounting US casualties. On the other hand the agreement signals a change in the perception of the American ground forces in Iraq. This can be understood when the dynamics of the ethnically divisive population of Iraq is traced. For instance the Kurds in northern Iraq have long supported American presence and policies in Iraq. However they are adamant about incorporating their ideal version of federalism in the new Constitution to be framed for Iraq which would include an elected Parliament and a President. This stand of the Kurds, which juxtaposes their support of the US policies vis-à-vis their demands for a separate identity, could more importantly highlight the friction between the Kurds and the Shiites in the South. The Shiites, who constitute the largest ethnic population in Iraq, do not approve of the American presence in Iraq and any undue concessions to the Kurds would not be acceptable to them. Concern about accommodating the Shiites objections becomes more important as the Grand Ayatollah Ali Sistani, the preeminent religious authority of Shiites in Iraq, rejected the initial proposal of transferring power through a fatwa. Most recently the grand Ayatollah has issues a fatwa rejecting the legitimacy of the Iraqi Governing Council. Then there are the Sunnis of Iraq, living along the so called Sunni triangle of the country. Having long enjoyed preeminence under Saddam, they are now facing problems as a result of the de Baathification and disbanding of the Iraqi military. They remain potentially dangerous and armed and therefore need to be included in any constitutional framework being envisaged for Iraq.

Thus when seen in this perspective there appear to be essentially two prominent reasons which are weighing in on US presence in Iraq. On the one hand domestic support for the US occupation in Iraq seems to be withering and with no immediate support and the US presidential elections of 2004, a pullback or a pullout seems to be logical. Secondly the hurried pullback by the Americans can be attributed also to the changing dynamics within Iraq itself. The framework for transfer of power so laid out hurries the process. The hurried nature of this pullback may succeed in establishing a government in Iraq without accommodating all the concerns of the various ethnic groups. Most importantly however it will also ensure that the process of nation building in Iraq is perceived as a process being carri9ed out successfully by the people of Iraq for Iraq.