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He should be tried by Iraqis, not an international court

Kingsley Chiedu Moghalu is the former legal advisor to the International Criminal Tribunal for Rwanda based in Arusha, Tanzania.

By Kingsley Chiedu Moghalu

GENEVA -- This is the year in which Saddam Hussein will be put on trial, a process that may help the political reconstruction of Iraq. The prospect that Saddam will face the justice he denied to the thousands of Iraqis he brutalized is a victory more for the strategy of the occupying powers -- and the tyrant's victims -- than it is for international human rights policy that seeks accountability when leaders torture, kill and maim their citizens.

In the circumstances, the best justice for Saddam is local justice through a court owned and run by Iraqis, but one that meets minimum international standards of fairness. Some have suggested that, given the scale of the crimes for which he stands accused, and the international divisions that persist over the U.S.-led war that toppled the dictator, he should be tried by a U.N.-sponsored war crimes tribunal such as those for the former Yugoslavia and Rwanda or a mixed international and national court such as the Special Court for Sierra Leone. This, the argument goes, will ensure that the trial is seen to be fair. It is a tempting argument.

But it would be the wrong path to follow. A U.N. tribunal, composed of international judges, even were it to sit inside Iraq, would not be appropriate for this trial. This is not because international justice is bad or wrong. It is neither. But that approach should not be utilized in circumstances where it would be counterproductive and better alternatives exist.

The UN tribunals for the Balkan wars and the Rwandan genocide were established because these were clearly conditions where there was no political will (ex-Yugoslavia) or judicial capacity (Rwanda) to bring to justice the erstwhile powerful men and women who have perpetrated genocide, crimes against humanity and war crimes.

In the case of the Balkans, the Hague tribunal was set up there while hostilities were still raging and far from them. Rwanda's government invited the United Nations to establish an international tribunal to demonstrate that the defendants would not receive "victor's justice" from the victorious new government in Kigali. But although it wanted the court in Kigali, the Rwandan capital, the U.N. Security Council set it up in Arusha, Tanzania, for reasons that were valid at the time.

A decade on, the Hague and Arusha tribunals have made great strides, but the model they represent has an important limitation that would greatly dilute the impact of a trial of Saddam were it to be adopted in any form. That weakness is the absence of local ownership of the inspiration and process of justice for crimes that have distorted the very fiber of a society. The citizens, most affected though they may have been by the crimes in question, would thus be standing on the outside looking in at the process.

To be sure, international standards are important. But inside a courtroom in a war crimes trial, it often depends on who is measuring it. And the prosecution, the defendant and the judges often have tapes of different lengths. Thus, the striving for perfection sometimes has the unintended effect of elevating procedure above the substance of justice. One standard that should be met, though, is the exclusion of the death penalty.

By all means Iraqis may seek international assistance with investigations, perhaps even judges. They will probably need it. But the greatest historical impact of a trial of Saddam Hussein will be achieved by one conducted by a predominantly Iraqi court, in Arabic (with simultaneous translation into English and other dominant international languages), under Iraqi laws and international humanitarian laws that are drafted into national legislation.

A mixed national-international court will not work well. First, in practice there will be a jostling behind the scenes for dominance by either its "national" or "international" component. This will affect unity of purpose. Second, such a model will not necessarily guarantee Iraqi ownership of the process. Despite popular assumptions to the contrary, the Sierra Leone model does not appear in practice to have significant national input at the leadership and decision-making levels of the judicial process for war crimes.

Moreover, Saddam's trial should aim to be relatively short (not more than a year from open to close). To achieve this outcome, the actual charges to be proffered against him should be selective, with only a few charges backed up by solid evidence selected on a priority basis. A "throw-the-book" prosecutorial approach that seeks to catalogue all the crimes Saddam may have committed will be counterproductive. It will result in a protracted trial, an eventual shift in Iraqis' and world attention to other things, and Saddam running for elective office -- or martyrdom -- from the dock as Slobodan Milosevic has done at The Hague.

The contradiction, of course, is that justice for mass crimes is often the fate of the weak and the conquered, criminals undeserving of sympathy though they may be. It is only a reflection of the relationship between power and international law, and the nature of international society, that Saddam will finally answer for the atrocities of his reign. It remains necessary, nonetheless, to clarify both the legality of the preemptive war that led to the invasion and liberation of Iraq from the grip of its dictator and the consequences of failure to enforce the U.N.'s prior resolutions. In a world in which rules of law are frequently invoked in aid of national interests, we all should know the difference among law, policy and strategy.

(c) 2004, Global Viewpoint. Distributed by Tribune Media Services International.
For immediate release (Distributed 1/27/04)