Don’t Just Fight Him; Indict Him

Michael P. Scharf, former attorney-advisor for United Nations affairs at the U.S. State Department, is professor of international law and director of the War Crimes Research Office at Case Western Reserve University School of Law.

Assuming that regime change in Iraq is inevitable, the question of what to do with Saddam Hussein and the surviving members of his governing clique becomes more pressing. Since Hussein has so often been compared to Adolf Hitler, it makes good sense to turn to the historic analogy of World War II for some guidance.

As the Allies pushed into Nazi Germany in spring 1945, there was considerable debate about what to do with the Nazi leaders after Germany’s defeat. British Prime Minister Winston Churchill suggested a firing squad. Soviet Premier Josef Stalin agreed, adding that his advisors had already come up with a list of 50,000 German candidates for execution. The United States instead proposed an international trial, which ultimately led to the establishment of the Nuremberg Tribunal.

Although the Nuremberg proceedings served many purposes, a main one was to justify Allied conduct during and after the war by putting an international spotlight on German atrocities. Once the world learned of Nazi war crimes and genocide, it would accept the controversial Allied firebombing of Dresden, as well as Allied plans for occupation and de-Nazification of Germany.

Fifty-four years later, the international indictment of former Yugoslav President Slobodan Milosevic proved similarly useful to the United States and its allies. The International Criminal Tribunal for the Former Yugoslavia indicted him for crimes against humanity in March 1999, roughly two months into NATO’s bombing campaign against Serbia. The timing of the indictment was crucial. Popular support for NATO’s intervention in the Balkans was waning in several NATO countries in the face of intense press criticism of its use of cluster bombs and depleted-uranium munitions, attacks on civilian trains and media centers, and the accidental bombings of the Chinese Embassy in Belgrade and territory in neighboring Bulgaria. The Milosevic indictment gave the North Atlantic Treaty Organization the moral credibility it needed to sustain international support for its military intervention. It also induced Milosevic to accede to NATO demands.


A judicial confirmation of the case against Hussein would similarly build international support for action against Iraq, both before and after military action.

U.S. investigators are said to have collected bountiful evidence of the atrocities committed by the Iraqi regime over the last 20 years. These include the taking of foreign nationals as hostages; using foreign nationals as human shields; raping and killing foreign civilians; torturing prisoners of war; pillaging civilian hospitals; launching Scud missiles at civilian targets in neighboring countries; releasing oil into the Persian Gulf; sabotaging oil fields in Kuwait; deploying chemical weapons; and committing genocide-like crimes against the Kurd and Shiite populations in Iraq. But this evidence has not been entered into the public record through a fair trial that can, in the words of Nuremberg lead prosecutor Robert H. Jackson, “establish incredible events by credible evidence.”

In the aftermath of the attacks on the World Trade Center and Pentagon, the chief prosecutor of the Yugoslavia tribunal, Carla Del Ponte, proposed expanding the jurisdiction of the U.N. Security Council-created tribunal to include prosecution of Taliban and Al Qaeda leaders taken into custody. Although the Bush administration prefers military tribunals instead, Del Ponte’s proposal could be easily implemented for Hussein and company.

All that would be necessary to accomplish this is for the U.N. Security Council to pass a resolution expanding the Yugoslavia tribunal’s jurisdiction to include violations of international humanitarian law committed by Iraq during its war with Iran in the 1980s, Baghdad’s invasion and occupation of Kuwait in 1990, its role in the Persian Gulf War in 1991 and its subsequent, brutal repression of the Kurd and Shiite rebellions in Iraq.

The trials could take place down the road from The Hague at the super-secure courtroom and detention center at Camp Zeist, where the Pan Am Flight 103 bombers were tried two years ago. While the international tribunal already has enough judges to staff this new undertaking, the United States and allies could supply prosecutors to prepare indictments quickly.

The one obstacle to such a tribunal is the approval of the five permanent members of the U.N. Security Council. The British, strong supporters of the permanent international criminal court established last summer, might view expansion of the Yugoslavia tribunal as a U.S. effort to undermine the permanent court. But this objection would be invalid, because the permanent international criminal court is prohibited by statute from exercising jurisdiction over crimes committed before July 1, 2002.

The Russians and French, who have a huge financial stake in Iraqi oil, may initially oppose an expanded Yugoslav tribunal because it might imperil the current U.N. effort to induce Hussein to accept new inspections. But in light of Hussein’s history of frustrating U.N. inspection teams, who can seriously believe that he will fully cooperate this time? When he does block the inspectors, the U.S. must be ready with the trial proposal.

It is one thing for President Bush and Prime Minister Tony Blair to assert that Hussein is evil and to expect the rest of the world to believe unsupported claims about the threat he poses. It would be quite another if, on the eve of military action against Iraq, a panel of distinguished international jurists were to conclude that the evidence of the Iraqi leader’s war crimes and crimes against humanity is sufficient to confirm an indictment and issue an international arrest warrant. Thereafter, as was the case with Milosevic, every reference to Hussein would be followed by the moniker “indicted war criminal.”