Saddam Hussein’s Trial

Saddam Hussein has been captured. How will he, and other members of his regime, be brought to justice?

The United States could defer to a newly formed Iraqi court system, or lead the way through Coalition trials. These, and all options -- except for the International Criminal Court -- should be considered. Though, in the end, the Iraqi judicial system should be given preference once it is capable of handling the matter in a fair and just manner.

- Nuremberg trials.
Most prominently, the war’s victors convened the Nuremberg trials where the leaders of the Nazi war machine were tried before a tribunal of judges drawn from the major allied powers. The allies jointly created, staffed and administered these tribunals and they operated based upon principles of international law, independent of the laws of the countries who fought the war. The Nuremberg trials began in October 1945 and lasted until 1947 trying various people.

- Independent Military Tribunals.
Each of the allied powers also convened its own independent military tribunals where other leaders – often, military commanders such as Japan’s General Tomoyuki Yamashita -- were tried. In the end, hundreds of foreign nationals were tried (for violations of the laws of war) in military courts very much like the military tribunals presently authorized for the Guantanamo detainees.

- Renewed German and Japanese Courts.
Once civil government was restored and judicial systems renewed many of the less significant offenders were tried in the renewed German and Japanese courts. Several thousand such trials were held as the German and Japanese populace regained their independence and sovereignty from their ruling dictators. All three of these options are reasonable possibilities for dealing with Saddam, and other high-ranking member of his regime. Indeed, a combination of all three options is the most likely result, as thousands more as-yet-unidentified Iraqis will be tried for their role in the brutal Saddam state.

Where possible, the coalition forces should defer to a renewed Iraqi judicial system. However a hasty trial is not necessary, and it would be best to first insure that the newly-refurbished Iraqi court system can function in a fair and transparent manner that will engender the confidence of the world. History reminds us that it look a lot longer than six months to capture and try all the Nazi and Japanese war criminals.

For military officers, a coalition or U.S. tribunal is especially appropriate for any high-level officials who have tortured or killed coalition POWs, directed – or engaged in – war crimes (such as false surrenders) that led to coalition deaths.

~ ICC Not an Option ~
There is one option that should not be adopted: reliance on the mechanism of the United Nations. The permanent International Criminal Court in The Hague was created as part of a treaty the United States has, rightly, chosen not to sign – it lacks the authority to conduct Iraqi war crimes trials.

And any temporary court for Iraq (similar to ones already in place of Kosovo and Rawanda) would have to be approved by the Security Council – the same Council that declined, in the first instance, to assist in the end of the Iraqi dictatorship – a poor option indeed, that would needlessly mire the prosecution of war crimes in international politics.

Some in the so-called “international human rights” community have called for UN involvement in the war crimes trial. While the international community has, paradoxically, urged a swifter return of Iraqi sovereignty they now, paradoxically, caution against too rapid a return of the Iraqi judicial system.

These activists have also complained that by excluding the UN coalition forces are attempting to limit the scope of the proposed tribunals – that without a UN trial nobody will examine American conduct in Iraq.

And that, of course, proves the absurdity of the “international option.” Any organization calling for examination of American conduct in Iraq has lost all credibility, both with the US government and the American people. The war crimes atrocities – the false flag surrenders, the murder of POWs and the unlawful use of hospitals and mosques as defense points (not to mention the pre-war torture and murder of millions) were Iraqi crimes, not American. The international fixation on alleged American wrongdoing is one more reason why the international courts are an inappropriate forum for judging the Iraqi regime.

(This is an updated version of WebMemo #266, originally published on April 22, 2003.)

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why must it be one or the other? Why not some conbination of all? Like he can be tried in IRaq for gassing Kurds, and in the US for helping Al Queda, by the ICC for crimes against humanity (rape, torture) etc..?

I don't see why the options are mutually exclusive.

I have stated this repeatedly - the only correct course of action for The Bush Administration is to try Saddam in either a U.S. court or in a U.S. military tribunal. We have overwhelming evidence of Saddam's involvement in 9/11, it is our moral imperative to try him under U.S. law. Our forces risked their lives to capture him, we shouldn't turn him over the Iraqi council.

Kofi Anan and all of his liberal friends and supporters in this country and abroad would LOVE to have the custody of Hussein come under the control of a bunch of wimpy UN
"peacekeepers." They could then conspire to send in a mob of Muslim extremists to storm the jail and free him. Bush's critics in this country and abroad could then have a ball saying that the Bush Administration is not competent enough to guard the guy.

Liberal's insist and demand that Iraqis be given back control of their country, immediately...saying they are ready for the challenge. Yet, when it comes to the trial of Saddam, these same libs cringe at the thought of these backward folks weeding out justice for Saddam.

Each of the allied powers also convened its own independent military tribunals where other leaders – often, military commanders such as Japan’s General Tomoyuki Yamashita -- were tried.

It ought to be pointed out that Yamashita's conviction and execution are now pretty generally regarded as 'questionable'.

My take on Saddam is that he can't be charged with anything because (see Horiuchi) he was a government officer performing his official duties.

Possibly, a military tribunal.

I would not want to see Saddam on U.S. soil. Imagine him being represented by Cochran, Dershowitz, Geragos, Spence, Rubenstein, et al.? Call Bush, Bush Sr., Powell, Cheney, Franks and some others to testify and just pick 12 morons and even Saddam can be sprung.

Question about trials in Iraq: What if some Sunni's are chosen as jurors or part of a judicial panel....Will this scenario spring Saddam????

I think everyone should get their turn. First let the Iraqi's try him, then the Shiite Muslims, then the Kurds, then the Kuwaitis, then the Iranians, then us. If anything is left, give it to the UN court.

I wouldn't be averse to giving him a shot at freedom. It would be like that Schwarzenegger movie "The Running Man". It could be pay-per-view!! All he would need to do is go on foot alone through the Shiite muslim territories, across northern Iraq, down through Iran, and through Kuwait to the Persian Gulf. If he makes it to the water, I say set him free.

Somehow, I'll bet he would rather take his chances in court.

You are right. Saddam Hussein should face different charges in front of different courts:

- In Iraq (for the crimes he committed against the Iraqi people).

- In America for his connections with terrorism against us.

- In front of an International Court for his crimes against humanity and against other countries (Iran, Kuwait, etc.).

It is true that this 'excuse' (doing one's duty as an officier) has been used by some officiers who claimed that they were only "following orders"...
But, in this case, it was Saddam Hussein who gave the orders. Disobedient officers could fear for their lives if they did not follow orders, but Saddam Hussein could have refrained from giving orders to have people killed without any sanction against him from a superior authority. This "argument" is not likely to be a very good defense for Saddam Hussein.

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