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Crime and punishment

How the trial of Saddam can serve the victims -- not just the victors

ALL TRIALS ARE POLITICAL, but war crimes trials are uniquely so. The US Army's dramatic and humiliating capture of Saddam Hussein is a landmark event in the history of international justice, and a powerful opportunity to shine a bright light on one of the most violent regimes on earth. But it is also going to mean political agony, for Americans and Arabs alike.

 

War crimes trials are notoriously difficult to conduct properly. If one had no moral compunction, the simplest thing would have been to shoot Hussein on sight. This was what Prussia wanted to do to Napoleon in 1815, and what Stalin suggested in 1943 for at least 50,000 Germans. As World War II drew to a close, even America and Britain were poised to summarily execute between 50 and 2,500 leading Axis war criminals.

But Americans, with their liberal scruples, rightly insisted on tribunals in 1945, and they are right to support one now. Saddam must get a real trial, with all the bells and whistles: independent judges, the possibility of acquittal, evidentiary standards, proportional sentencing, legal counsel, and the opportunity for Saddam to present a defense. A war that started with American soldiers launching precisely targeted bombs aimed at killing a dictator will end with American-backed lawyers giving him a microphone to address the world.

Can such a proceeding avoid the bitter accusations of "victor's justice" that have always accompanied war crimes trials? The risks are many. But if America develops the right approach -- supporting Iraqi efforts to confront their own history; allowing international bodies a supervisory role; inviting Saddam's victims in Iran and Kuwait to detail their own grievances -- then the prosecution of Saddam Hussein may prove to be a turning point in a troubled war.

. . .

Start with the indictment. Every group within Iraq -- not to mention Iran, Kuwait, and possibly Israel -- will want a piece of the prosecution. No wonder the statute adopted by the Iraqi governing council shortly before Hussein's capture refers elaborately to crimes "committed against the people of Iraq (including its Arabs, Kurds, Turcomans, Assyrians and other ethnic groups, and its Shi'ites and Sunnis)."Kurds will rightly insist on genocide charges for the 1988 Anfal extermination campaign, which included the use of poison gas in Halabja. The marsh Arabs, almost eradicated by Hussein's murderous repression and his draining of their homeland, may press similar claims. Other groups may issue contentious claims of victimhood that could undermine Iraq's federal unity. The indictment must be a comprehensive accounting of Ba'athist criminality, without being so detailed as to make the trial interminable.

Perhaps the biggest political danger is that the trial will spark a nationalist backlash. After World War I, many Germans and Turks bitterly resented Allied efforts to prosecute German atrocities in Belgium and France, and the Ottoman Empire's 1915 genocide against Armenians -- efforts which resulted, respectively, in trials in Leipzig in 1921 and Constantinople in 1919. Hermann Gring, who wound up as the most infamous Nazi in the dock at Nuremberg, first crossed paths with Hitler at a 1922 rightist protest against Allied plans for war crimes trials. Many who were not strong ideological supporters of Kaiser Wilhelm II or the Young Turks bridled at the humiliation of defeat and at Allied moralizing -- including the leftist Social Democrats in Weimar Germany.

A trial of Hussein could prompt a similar backlash, not just in Iraq but across the Arab world. Hussein is unlikely to take a cringing Eichmann pose and deny any responsibility for the killings. Instead, he will almost certainly present himself as an anti-imperialist hero of Arab nationalism, standing up against an American grab for hegemony in the Middle East -- much as Slobodan Milosevic, still on trial in the Hague, bills himself as the last line of defense against American expansion in the Balkans. At Nuremberg, even some Nazis took a similar tack, arguing that they had provided a necessary bulwark against Bolshevism.

Hussein, like Milosevic, will presumably also try to embarrass the West by talking about its past support for his regime -- legally irrelevant, but something to make both Jacques Chirac and Donald Rumsfeld wince. Hussein will also likely make a tu quoque ("you also") argument, and accuse the Americans of sponsoring the prosecution of his crimes while ignoring their own and those of their allies, such as the UN-backed sanctions that may have contributed to the deaths of thousands. (Japanese nationalist accusations of Allied war crimes, especially after Hiroshima and Nagasaki, deflated the Tokyo proceedings, which many Japanese saw as one-sided.) Meanwhile, Arab and Muslim views of the trial will be filtered through a press that is often bitterly anti-American and in many cases directly controlled by dictatorial regimes petrified by the spectacle of Hussein in the dock.

One solution: Focus on the most unique crimes. In Germany, this meant emphasizing the Holocaust rather than German bombing of London and Coventry (to which unrepentant Germans could respond by pointing to Dresden). For Hussein, the equivalent would be the genocidal Anfal campaign against the Kurds, something for which there is no Western equivalent and which demonstrates the cruel essence of Hussein's regime.

. . .

In order to blunt its risks, the trial would benefit from international participation. To be sure, Iraqis, as Hussein's main victims, deserve to be Hussein's main judges. Outsiders cannot possibly know Iraq and its miseries as well as Iraqis do. And an American decision to support an Iraqi-led tribunal would be impressive. The Allies at Nuremberg flatly refused to allow any judges from Germany or even from neutral countries (since neutrality was seen as passive acquiescence in Nazi hegemony).

But some international participation has many advantages. As a matter of principle, Iranians and Kuwaitis deserve a voice in the trial, having suffered horribly at Hussein's hands. (Iran has already asked to be involved, which opens up a remarkable opportunity for America to reach out to Iranian moderates in prosecuting a common foe, and could help the Bush administration stigmatize the chemical weapons that Iraqi forces used against Iranians.) The tribunal would benefit from the experience of judges and officials who have gained valuable experience at the ex-Yugoslavia and Rwanda tribunals. For instance, Georges Abi-Saab, an Egyptian jurist, was one of the original judges at the ex-Yugoslavia tribunal, and could bring both know-how and legitimacy. (Putting non-Iraqi judges on the bench would not require any modification of the Iraqi Governing Council's plans, which include a specific provision for appointing "non-Iraqi judges who have experience in the crimes encompassed in this statute.")

To ward off the charge that it is a US stooge, the Iraqi tribunal should be given as much legitimacy as possible by whatever international organizations can be persuaded to bless it: the Gulf Cooperation Council, the Arab League, the European Union. The White House could ask for a UN Security Council resolution empowering the Iraqi tribunal to act on behalf of the international community. Such a resolution would be a powerful demonstration of consensus on the least controversial of issues surrounding the war in Iraq: the nightmare human rights record of the Ba'athist regime. France and Russia would likely be too embarrassed to stand in the way of such a resolution. And in exchange for making the tribunal more international, which is a significant concession to European demands for multilateralism, America could suggest that Europeans help more with the nation-building efforts underway.

For the White House, this will require considerable restraint. The administration wants to win domestic political points for catching Hussein, especially after being pummeled by the Democratic presidential candidates -- hence President Bush's gloating talk of "good riddance." But the American strategic interest is to legitimize the Iraqi Governing Council's court, which means keeping Bush quiet.

It is important that the tribunal be located in Iraq. The ongoing UN tribunals for the ex-Yugoslavia and Rwanda are located in The Hague and Arusha, Tanzania respectively -- so remote from the scenes of the crimes that they can be all but invisible to the victims. The Nuremberg and Tokyo tribunals, in contrast, were far more visible to Germans and Japanese. The tribunal could even sit in different places: in Halabja when it weighs genocide against the Kurds, and in the holy cities of Karbala and Najaf, where Ba'athist forces killed clerics and destroyed shrines in 1991, when it considers Hussein's atrocities against the Shi'a. As lawyers love to say, justice must not just be done, but be seen to be done.

Finally, there is the question of the death penalty, which poses a difficult conflict between the need to uphold international norms and the imperative to grant the Iraqis real autonomy. Although capital punishment is commonplace across the Middle East for far lesser crimes, the UN and Britain have already objected to its use in Hussein's case, and other European countries will surely follow. For the new Iraqi government, allowing Hussein to live out his life in prison would be a powerful demonstration of restraint.

But while the UN tribunals do not kill their convicts, the major democracies have not always been so restrained. The Allies hanged many defendants in Nuremberg and Tokyo, and Israel hanged Eichmann in 1962. (Earlier this month, a Japanese court upheld the death sentence of the cult leader who planned the 1995 gas attacks on the Tokyo subway.)

Bizarrely, the Hutu Power architects of Rwanda's genocide face only jail terms at the UN tribunal in Arusha, while lower-level Hutu murderers go before Rwandan courts and face death. To many Rwandans, this is baffling at best and colonial condescension at worst. Some Iraqis will see a similar hypocrisy.

For all the pitfalls ahead, the White House should see the trial as a real opportunity to open minds about the Iraqi regime, not just in Iraq but around the world. The Bush administration has been so hostile to international courts that even in the midst of a struggle to win over Muslim public opinion, it has barely tried to capitalize on America's role in putting Milosevic on trial for genocide against Muslims in Bosnia. But America has an opportunity here to genuinely win over Arabs and, less important, antiwar Europeans.

Hussein's brutal record must be demonstrated. The Iraqi leader, who styled himself as a god, will have to face the prospect of being remembered in history only as a criminal.

Gary J. Bass is an assistant professor of politics and international affairs at Princeton and the author of "Stay the Hand of Vengeance: The Politics of War Crimes Tribunals." He is writing a book on humanitarian war.

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