Vol. 4 Num 205 Tue. December 23, 2003  

Bottom line
Trial of Saddam Hussein: Headache for Western powers

After the capture of Iraqi leader Saddam Hussein on 13th December, one issue that has dominated in recent days is : what type of tribunal will try Saddam Hussein? Much will depend first on the fundamental question as to whether the Bush administration considers him a prisoner of war or a terrorist.

It is reported that US Defence Secretary Rumsfeld has recently told the media that the Iraqi leader had not been as yet classified as a prisoner of war and the administration was waiting until it knew more about Saddam Hussein's role in the Iraqi insurgency since May.

If Saddam Hussein is held as a terrorist, he will be classified as an "enemy combatant" and his fate will be like that of other terrorist-captives who are now held in Guantanamo Bay in Cuba and in that case, the protection afforded in ordinary tribunals to an accused will not be available to the Iraqi leader and even an access to a lawyer could be denied to him.

His status will , however, change if he is declared as a prisoner of war because his rights will be governed in terms of the 1949 Geneva Convention Relating to Prisoners of War. The monitoring of compliance of provisions of the Convention is the responsibility of the Geneva-based International Committee of Red Cross (ICRC) and they will be involved and are good at it.

The question then will arise as to whether a national or an international tribunal will try Saddam Hussein. The bottom line is that trial of the Iraqi leader must not only be fair and impartial but also seen to be such by all people, both inside and outside Iraq. Justice dispensed by and under the occupying powers will be under strict scrutiny for its fairness and legitimacy.

Accountability of political leaders

In 1946, the judgment of the Nuremberg Tribunal established the legal principle that individuals and not states were responsible for the international crimes. The Tribunal observed: " Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."

Following the Nuremberg judgment, the 1948 Genocide Convention was adopted by the UN. Furthermore the 1973 UN Resolution of the General Assembly makes crimes against humanity, genocide and war crimes punishable and all states are required to cooperate with each other to bring guilty persons to justice.

At the beginning of the 21st century, the dominant motive in world affairs appears to be the quest -- almost a thirst -- for justice. The world is not ready to permit gross human rights abuses within a territory by an oppressive tyrant without accountability. There is a recognition that political leadership carries, concomitant with wielding power, an accountability for abusing it.

The Nuremberg legacy in turn inspired the establishment of UN Adhoc International Criminal Courts -- one in Arusha (Tanzania) in 1994 for Rwanda and the other in The Hague in 1993 for former Yugoslavia. Both the Courts have achieved successes by convicting and sentencing many persons found guilty for commission of crimes against humanity, genocide and war crimes.

The sovereign immunity of heads of state/government is no more a valid argument to escape trial if they have committed crimes against humanity, genocide and war crimes. In recent years, it can be said that on all fronts humanitarian law finally enjoys its day in the Sun. A few dictators could not escape from arrest and trial for their involvement in crimes under international law. For instance, former Chilean dictator Augusto Pinochet (83) was arrested in London in 1998 and was denied his immunity by the highest court in Britain (House of Lords). He escaped extradition to Spain because of poor mental and physical health. Former dictator of Yugoslavia Slobodan Milosevic is being tried in The Hague.

Three options for creation of tribunals

It seems that there are three options on the structure of tribunal to try Saddam Hussein.

A trial for Saddam Hussein must satisfy international law and recognised standards of competence and impartiality of judges. While he must be assured of a fair opportunity to defend at the tribunal, it would be undesirable to become a forum for revenge.

First, a national tribunal may be created inside Iraq. In recent days the US-appointed Iraqi Governing Council proclaimed that a law had been enacted for establishment of a special tribunal to try Iraqi nationals who had committed crimes against humanity and war crimes during the Saddam Hussein regime from 1968-2003 inside or outside Iraq. The Council members want to put Saddam Hussein on trial before the special tribunal within months but the Bush administration appears not to be in a hurry to try him.

A national tribunal will probably have the power to impose death penalty, suspended now in Iraq by the Anglo-US occupied power. Governing Council President Abdul Aziz al-Hakim has warned that Saddam Hussein may be executed if convicted in an Iraqi tribunal.

On 17 December, President Bush reportedly backed death penalty in an interview with ABC in the TV. He said that " Let us just see what penalty he gets. But I think he ought to receive the ultimate penalty...for what he has done to his people." Some Arab journalists took the view that the President should not have expressed any opinion on Saddam Hussein's fate and it was wrong to prejudge the verdict.

The death penalty is also expected to become a divisive issue between the US and Britain as Britain's top representative in Iraq, Sir Jeremy Greenstock, reportedly said that his country would not participate in a tribunal or legal process that could lead to execution. Furthermore Spain and Italy which supported the US during the war do not support death penalty for the Iraqi leader. (Death penalty has been abolished within European Union).

With regard to the creation of proposed national tribunal, it has been argued in some Arab quarters that the US and Britain did not say that Serbs would try Milosevic in Belgrade, although the Serb government was democratically elected, unlike the Iraqi Governing Council. Milosevic is being tried by an Adhoc International Criminal Court at The Hague. Likewise it is being argued that an Iraqi national tribunal is not an appropriate forum to try Saddam Hussein.

Second, there is also an external dimension to Saddam Hussein's alleged crimes. The Iraqi leader allegedly committed not only crimes against humanity and genocide against his people inside Iraq but also war crimes outside Iraq. There is a demand from Iran, Israel and Kuwait to try Saddam Hussein for war crimes. In the light of this situation, an international tribunal is being suggested for trial of Saddam Hussein as was done for the leaders of former Yugoslavia. Why should he be differently judged from the treatment of Milosevic? It is noted that the existing UN International Criminal Court (ICC) will not be of any use because it can only deal with crimes that have occurred since July 2002. Furthermore the US has been at odds with the establishment of the ICC and Iraq is not a party to the Rome Statute.

Third, a mixed criminal tribunal consisting of non-Iraqi and Iraqi judges may be constituted, similar to the tribunal recently established by the UN in Sierra Leone. Such tribunal is also proposed for Cambodia. The law applicable will be both Iraqi criminal law and international law. It appears that according to many legal experts, a mixed tribunal, based in Iraq, could be the appropriate forum to try the Iraqi leader.

Trial may embarrass Western powers

The trial of Saddam Hussein will never be straightforward and it could become an embarrassment for the US, France, Britain, Germany and Russia that supplied weapons to his regime. During the trial, defence lawyer could raise the question as to why those who want to try him once supplied with weapons of mass destruction. The trial is likely to expose how the US supported Iraq in its war against Iran and stood mutely by when Saddam Hussein used chemical weapons both against Iranian forces and against Kurdish people inside Iraq. Many legal experts say that the trial could eventually reflect badly on the US and some European countries including Britain.

Although a French lawyer has reportedly offered his services and the leader's eldest daughter has said in Lebanon that her father would be strongly defended during the proposed trial, Saddam Hussein may not be willing to engage a lawyer and follow the strategy of former President of Yugoslavia Milosevic to defend himself..

In that scenario, Saddam Hussein will have opportunity to spend prolonged period in blasting anti-Western rhetoric, primarily for the ears of population of the Arab world. He may argue that his actions were supported by many Western leaders in the 80s and may likely to call as witnesses French President Jacque Chirac who met him as French Prime Minister in 1974 and US Defence Secretary Donald Rumsfeld. Rumsfeld met the Iraqi leader in 1983 in Baghdad and it is on record that Rumsfeld told him during the meeting:

" The US and Iraq share interests in preventing Iranian and Syrian expansion."

Furthermore, the trial may not sit well with the Arab world as out of 22 Arab countries only a few heads of state are "democratically" elected with 99 per cent of votes. There is a growing realisation in the Arab World that a friend can soon become a foe under a different strategic circumstance and the fate that has fallen to Saddam Hussein may also descend on them if they do not toe American line.

Double standard in putting leaders on trial

Another point that merits attention is that there should not be double standard in respect of trial of leaders. One should not pick and choose as to which leader is put on trial. Many former political leaders freely roam despite their 'blood on their hands." For instance, there appears to be a prima facie case for trial of former US Secretary of State Dr. Henry Kissinger for his direct involvement in the war in Indochina, mass murder in Bangladesh during the Liberation War, political assassinations in Chile, Cyprus and East Timor.

In April, 2002, a Spanish judge, Baltasar Garzon, who was responsible for the arrest of Pinochet in Britain told the Interpol authorities that he wanted to question Dr. Kissinger on allegations of gross abuse of human rights against him in Chile but he avoided such requests not only from Spain but also from France and Chile in the past year. Furthermore Christopher Hitchens wrote a book titled 'The Trial of Henry Kissinger" in 2001 (published by Verso Books in the US) in which he presented a devastating indictment of a man whose ambition and ruthlessness have directly resulted in both individual murders and widespread indiscriminate slaughter.

The double standard adopted by big powers brings to mind what ancient philosopher Anacharsis maintained that "laws are like cobwebs; strong enough to detain only the weak and too weak to hold the strong."


No one disagrees that the Iraqi leader should not be tried for the alleged atrocities committed over the years. However, the decision on the structure of the tribunal will be of fundamental importance to Iraq and international community. Holding of a trial will send a strong message to all political leaders across the world that they will not be able to evade accountability to their actions or decisions while they enjoy unfettered power.

Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.