Let Justice Be Done in Baghdad
The capture of Saddam Hussein is a cause for rejoicing. His crimes against humanity were numerous, leaving hundreds of thousands of victims in Iraq, especially among the Shiites who dared to stand up against him, and the Kurds, against whom genocide was committed by his regime.
The question that now arises is how Hussein should be brought to justice. We are all fortunate that he was taken alive, rather than killed, because it offers the world community -- and the United States in particular -- a chance to show that we are more principled and fair than he could ever have been and that the rule of law is stronger than the need for revenge.
But how exactly is it to be done? Similar debates have arisen with regard to other war criminals. It is to the credit of the U.S. that the leading Nazi war criminals were brought to justice at Nuremberg. The leaders of the other victorious allied nations would have preferred their summary execution.
And the Nuremberg legacy, in turn, inspired the establishment -- under the leadership of the U.S. -- of the United Nations war crimes tribunals for the former Yugoslavia and Rwanda. Thanks to strong financial and political support from the U.S., those two tribunals have achieved important successes -- including, most recently, the prosecution of Slobodan Milosevic for war crimes. And U.S. support for those tribunals continues despite the rejection by the Bush administration of the International Criminal Court, which I believe was a terrible and shortsighted mistake.
In looking forward to the appropriate trial for Hussein, I would suggest that decisions should be dictated by the following considerations:
First, the primary goal of such a trial must be to bring justice to the victims of the horrendous crimes for which Hussein stands accused. That can be achieved only by gathering meticulous proof of those crimes and of the part that Hussein played in their execution.
Second, the trial must be -- and must be seen to be -- scrupulously fair, according to present-day norms. Those are the norms that the U.S. has traditionally upheld in its own country and by which it has judged the criminal justice systems of other nations. They also are now the norms that are recognized and upheld by the community of democratic nations. Neither anger nor haste nor politics should be allowed to compromise those standards.
Third, a trial of Hussein must not be left open to the criticism that has been associated with Nuremberg and the trial in Jerusalem of Adolf Eichmann -- namely, that they represented “victors’ justice.” Eichmann, you will remember, was kidnapped by the Israelis from the streets of Buenos Aires and tried before Israeli judges in 1961; the Nuremberg trials were conducted by the Allies -- the United States, Britain, France and the Soviet Union.
Fourth, criminal trials, to the extent possible and consistent with fairness, should be held as close as possible to the crime scenes. That is important for the victims. The Security Council recognized that that would not be possible in the cases of the Balkans and Rwanda because justice could not have been achieved in the atmosphere that prevailed in those places at the time. But still, distancing trials from the victims is unfortunate and ultimately makes those trials less relevant and less effective as an instrument for reconciliation.
It seems reasonable, therefore, that the trial of Hussein should take place in Iraq. However, I am highly skeptical of the claim by some members of the Iraqi Governing Council that there are appropriate Iraqi judges who, without assistance, could preside at war crimes tribunals.
There has been no credible Iraqi criminal justice system for some decades. There are few if any Iraqi prosecutors who have the experience needed to mount credible prosecutions. There are no credible Iraqi defense attorneys capable of providing Hussein with the advice and support that he would need in defending himself. The independence of the judges would be highly questionable as well.
Although the Iraqis are not prepared to handle such trials on their own, this does not mean that the U.S. should take the job on itself. This is an undertaking that must have the backing of the international community, rather than just the country that launched the war against Iraq. It follows, in my view, that the best solution would be the kind of hybrid court that has been set up in Sierra Leone and Cambodia -- a mix of local and international judges and prosecutors, including guarantees for the safety of defense attorneys.
I would suggest that the United Nations and the U.S. together could provide crucial support for such a war crimes court in Iraq. It would also have the merit of furthering the just demand of the U.S. that a new Iraq have a democratic form of government.
Above all, it would serve the interests of the most important beneficiaries of such a trial -- Saddam Hussein’s victims.
Richard Goldstone is the former chief prosecutor of the U.N. war crimes tribunals for the former Yugoslavia and Rwanda. He recently stepped down as a justice of the South African Constitutional Court.