International lawyers, human rights advocates, top government officials, and most recently the U.S. House of Representatives have urged that Saddam Hussein and other top Iraqi leaders be indicted for the massive atrocities they have committed during the past two decades. Leila Nadya Sadat, professor of law at Washington University in St. Louis and an expert on international war crimes tribunals, notes that the current military action could make effective and legitimate war crimes prosecutions much more difficult.
“The effort to bring Saddam and his deputies before the bar of justice has become almost impossibly complicated due to the war in Iraq, even though the American and coalition forces have seen great success in Baghdad and beyond,” says Sadat.
Prior to the war in Iraq, the war crimes cases against Saddam Hussein and his inner circle could have been brought to an international tribunal possibly created by the Security Council of the United Nations.
“Given the current hostility between the members of the Security Council over the current use of force in Iraq, however, it would now take a truly herculean effort on the part of the administration to persuade the Council to establish an international tribunal for Iraq,” says Sadat. “Another alternative is the new International Criminal Court (ICC), but because Iraq has not ratified the ICC Statute, or consented to the Court’s jurisdiction, the only mechanism that could be used to bring a case against Iraqi leaders to the ICC is the Security Council, where, once again, the U.S. is sure to face difficulties given recent history.”
Besides the ICC, Sadat notes that there are three other options for bringing the Iraqi regime to trial.
Occupation courts similar to those created during the Second World War in Japan or Germany are a possibility for post-war Iraq. “The difficulty of this process is its ad hoc nature and the element of victor’s justice involved, which detract considerably from both the moral weight and legitimacy of any trials undertaken,” says Sadat. “It is both shocking and almost inconceivable that this option would be seriously contemplated given the extraordinary success of the International Criminal Trial for the Former Yugoslavia and the International Criminal Trial for Rwanda, but given the recent rupture with the United Nations and the general feeling outside the United States that the war against Iraq is illegitimate, this might be the government’s only choice.”
A second possibility is to leave the question of justice to the people of Iraq. The risk involved in this option would be that the Iraqis would do nothing, possibly allowing the Baath regime to reconstitute itself, sending Iraq either into chaos or repression.
Third, given that a centerpiece of present U.S. military strategy is the elimination of senior Baath Party members, Sadat notes that it is quite possible that some or all may be killed in the course of the conflict, thereby obviating the question of trials.
“In weighing the advisability of these various alternatives, a few guiding principles are relevant,” says Sadat. “Any actions taken by the United States government during the conflict and with regard to any prisoners captured, must be in full compliance with international legal standards, including the Geneva Prisoner of War Conventions. If trials are undertaken, they must be public, fair and the rights of the accused respected throughout. Already a majority of the world’s people are deeply suspicious of America’s motives for war and resentful of the administration’s apparent disregard for the existing framework of international law. We must therefore sharply distinguish tyrannical and abusive regimes, which have no respect for the rule of law, from our own. Any justice meted out by the United States must be above reproach and in full conformity with existing international legal standards. To do otherwise will bring neither credit to ourselves nor, ultimately, justice to Iraq. ”