Prosecuting Saddam Hussein

MEMORANDUM

TO: Ibrahim al-Jafaari, Prime Minister of Iraq

FROM: M. Cherif Bassiouni

RE: Prosecuting Saddam Hussein

As you know all too well, the Iraqi people suffered profoundly under the rule of Saddam Hussein. He and his Baath regime cronies are responsible for the deaths of as many as half a million Iraqis and a vast array of human rights violations. In crushing the insurgencies in the Kurdish north, the regime used chemical weapons that may have killed as many as 5,000 innocent civilians. In the south, tens of thousands of Shia and civilians who inhabit the marshlands on the border of Iran were killed. Two wars of aggression, against Iran and Kuwait, produced thousands of victims in these two countries and the deaths of an estimated 1 million Iraqis. The victims and their surviving families and relatives expect justice, and history has to record these atrocities.

Trying the perpetrators, establishing a historical record, and responding to the needs of victims are essential tasks for a new Iraq. Unaddressed wrongs in any society do not disappear. They linger in the limbo of collective memory and, in time, lead to revenge. The Shia community in Iraq has been restrained thus far in the face of violence and provocations by the mainly Sunni insurgents. But your government is adamant that prosecutions must proceed and that punishments must be severe. If the process of dispensing justice stumbles, a wave of revenge killings could follow.

Unfortunately, the trials of Saddam and his associates are in serious danger of appearing illegitimate to the Iraqi population and the broader Arab and Muslim worlds. The Iraqi Special Tribunal (IST), which will try Saddam and other high regime officials, has serious legal, political, and public relations defects. A trial that could be one of the most important in Arab history now may be seen as little more than an American show trial and an exercise in victors justice. Worse, Saddam may be able to turn the tribunal into a spectacle and generate sympathy in Iraq and the Muslim world. It is useful to remember how Nazi leader Hermann Gring stole the show at Nuremberg for two days and how former Yugoslav President Slobodan Milosevic has managed to drag out his case for nearly two years at the International Criminal Tribunal for the Former Yugoslavia. There is still time to prevent these outcomes, but you must move quickly.

Dont Rush the Trial for Political Reasons: During the last several months, a split has emerged between the United States and your government on the timetable and strategy for prosecuting Saddam. The Americans prefer to try certain mid-level regime officials to build a broad case against Saddam. Your government, on the other hand, is eager to start the trial based on a few specific and well-documented instances of abuse. Your strategy makes more sense. A narrower focus might help prevent Saddam from turning the trial into a political stage. But dont rush the trial hoping that it will take the wind out of the insurgency. It wontand haste might lead to critical mistakes. You still have work to do before the gavel comes down.

Erase the American Footprint: There is no denying that the IST is an American creation. The now defunct Coalition Provisional Authority established the tribunal in consultation with the U.S.-appointed Iraqi Governing Council. Its statute allows the appointment of foreign judges to the tribunal and mandates the presence of international observers. No foreign judges have yet been appointed, but the possibility is being seriously considered. The possibility itself is an insult to Iraqis. Even in Europe, which is increasingly bound together legally and culturally, it would be unacceptable to have, for example, a French judge on the bench for a German criminal trial.

The tribunals statute was drafted in English and modeled on the American adversarial legal system. The U.S. government provided $75 million and dispatched teams of prosecutors and investigators to help the tribunal prepare for the trials of senior regime officials. These American officials are dedicated, but they know little about Iraqs legal traditions. The tribunals provenance and the presence of American personnel have fostered the view that it serves U.S. rather than Iraqi interests.

A large segment of the public in Iraq and the broader Arab world suspects that the tribunal is an attempt by the United States to divert attention from its own abuses in Iraq (and at the Abu Ghraib prison, in particular) and to justify the invasion by focusing on Saddams crimes. Many Muslims wonder why there is a tribunal for Saddam but not one for the Israeli leaders they consider responsible for ongoing abuses of the Palestinians.

Lost in this atmosphere of suspicion is the reality that Iraqi judges and prosecutors have gradually taken ownership of the process in the face of mortal danger. The assassination in March of an investigative judge working on the tribunal made clear the risks that Iraqi officials run by being involved in the process.

Still, the appearance of American control is powerful, and reform is necessary to remove the taint. To honor your countrys victims and support justice, your government should make every effort to enhance the legitimacy and credibility of the IST and to ensure that it responds to the demands of the Iraqi people. No one impartially reviewing the systematic atrocities committed by Saddam and the leaders of the Baath regime can deny that these individuals deserve to face justice. However, it must be Iraqi justice at its best, and not Iraqi justice guided by the United States.

Dont Offer Plea Bargains: None of the major offenders in Saddams regime should be offered a plea bargain, as the United States is apparently contemplating, in order to solidify the case against Saddam and his highest-ranking officers. Plea bargains are an almost unique feature of the American criminal justice system, and most countries consider them antithetical to the notion of justice. Victims cannot be satisfied if a major offender gets away with a minor penalty just because he served the prosecutions purposes by testifying against another defendant. The very pragmatic American approach is alien to the Iraqi sense of justice.

Keep Saddam in Check: Recent experience with trials of this sort demonstrates that the greatest potential for the trials becoming a circus comes when the defendant represents himself and can cross-examine witnesses (who are often victims). Solicitousness for the rights of the defendant can easily become a destructive absence of courtroom discipline. Milosevic has used his status as his own lawyer to maximum effect in his trial, often transforming cross-examinations into long soliloquies on the injustice of his prosecution and abusing distraught witnesses. The judges in the trial will have to be especially vigilant in preventing Saddam from dominating the proceedings.

Stay Away from Islamic Law: It has become fashionable to recommend that Saddam be tried under sharia, or Islamic law, so as to better communicate to the Islamic world the impermissibility of his deeds. But sharia has not been applied in Iraq since 1925, and reviving it now for the trial of Saddam and his henchmen would be a mistake. Using Islamic law in Iraq would be akin to reverting to the English common law in an American trial. Moreover, resorting to Islamic law would be an odd step for a new government that is striving to create a modern, secular justice system that can administer laws in a society riven by religious and sectarian differences. Even if you wanted to use Islamic law, which of the several schools of Islamic jurisprudence would you use in a society as diverse as your own?

Reappoint the Judges: The tribunals judges and prosecutors were appointed by the Iraqi Governing Council, the temporary political authority that the United States established in its capacity as an occupying power. Whatever their merits, Iraqs new judicial officials face immediate doubts about their independence, impartiality, and fairness. Your governments judicial council should reappoint judges who meet its own legal standards. Even if the council reappoints many of the same judges, the process would give them a new legitimacy. Those judges who do not qualify should not be reappointed, even though they may be persons of high caliber. Some judges on the IST, for example, have been practicing attorneys but have never been part of the judiciary. They dont qualify and should be removed.

Beyond the Courtroom

Once your government has corrected some of the ISTs most serious defects, you should embark on a broader effort to engage Iraqi society in the need for accountability, establish a historical record, and ensure that publicity surrounding the tribunal does not obscure the continuing needs of the Iraqi legal system. The worlds attention may be on the Saddam trial, but the challenges for the Iraqi legal system are much more profound and complicated.

Sell the Court: You should embark on a wide-ranging and sustained campaign to enlist the support of political, religious, and ethnic leaders, civil society, and the general population to develop consensus on the need for the tribunal and on a broader approach to justice and reconciliation. Knowledge of the IST in Iraq right now is scant, and most peopleat least outside of Sunni areastend to support a quick trial without formalities and with a quick death sentence. A public information campaign should include discussion of the ways other societies have faced their own legacies of past political violence. Show your people that Iraq is not alone in this process by airing documentaries about the history of war crimes prosecutions, including Nuremberg and Tokyo, but also more recently, the International Criminal Tribunal for the Former Yugoslavia and the Rwanda tribunal.

Establish a Historical Commission: Trials alone will not be sufficient to teach generations of Iraqis about the horrors of the past. You should also establish a commission to document and analyze political violence committed by the old regime. Other truth commissions in places such as South Africa have immunized those willing to testify in order to create an accurate historical record. In effect, these commissions became a substitute for justice. An Iraqi truth commission should complement justice, not replace it. Its purpose would be educational: to record history and inform the Iraqi public for generations to come about a dark period in the countrys past.

Compensate Victims: Some form of victim compensation is essential not only for basic justice but also to engage society in the push for accountability. Compensation centers in different parts of the country will induce people to register complaints and tell their stories. This process will generate a bottom-up demand for justice against the regime, which will be more effective and sustainable than the current top-down approach. As people learn to think of themselves as victims of egregious crimes, they may become more willing to testify at trial. Without a compensation scheme, witnesses will probably be few in number and easy targets for the insurgency and for Baath Party sympathizers. A large-scale, nationwide victim compensation system will therefore create a popular base of support for the trials. Not all evidence will be used at trial, of course. Much of it can be used to develop an oral history record to educate future generations.

Confronting past atrocities is a complex and lengthy legal and social process. Dont let the tribunals work distract you entirely from the wider needs of the Iraqi justice system and the broader process of documenting and grappling with the countrys recent history. Getting the Saddam trial right is important, but its only the first step toward justice.