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Kingsley Chiedu Moghalu was counselor to the U.N. Rwanda War Crimes Tribunal based in Arusha, Tanzania.

By Kingsley Chiedu Moghalu

GENEVA -- The defenestration of Saddam Hussein, which began when he crawled out of a hole near Tikrit in December accompanied by his U.S. captors, continued with his recent arraignment before an Iraqi court on charges of crimes against humanity and war crimes. Saddam's trial is not so much about justice and human rights as it is about high-stakes politics, aimed at achieving the strategic goals of the coalition that ousted him. The paradox is that the trial will have a salutary effect in Iraq in the long term.

If we consider that the United States gave the former Iraqi dictator 48 hours to leave his country in order to avoid an invasion of Iraq, the political and strategic context of war crimes trials of leaders who have fallen from the Olympian heights of power with blood in their hands becomes crystal clear. If Hussein had taken up U.S. Secretary of Defense Donald Rumsfeld's offer -- admittedly an unlikely prospect -- he would have enjoyed a quiet life in exile, his alleged crimes against humanity notwithstanding.

That is the nature of international war crimes justice. When it happens, it is frequently a means to a strategic end such as the maintenance or creation of order. When it doesn't, despite what may be an obvious case for a trial, reasons of grand strategy are often similarly at play. That is why Gen. Douglas MacArthur exempted Japanese emperor Hirohito from the Tokyo war crimes trials after World War II. Where justice in its purest sense will throw the strategic calculations of powerful players out of kilter, attempts, successful or not, will surely be made to keep it from complicating matters excessively. In the international society, justice does not take place in a vacuum.

Consider, again, the timing of Hussein's arraignment on July 1. It was calculated to demonstrate the sovereignty of Iraq's interim government and give it credibility in the face of questions about its surefootedness. The compromise arrangement by which legal custody of the ex-tyrant passed to the Iraqi government while the American-led coalition retained physical custody protects the strategic interests of both sides. The coalition did not spend billions of dollars to oust Saddam, in a war whose legality has been strenuously contested, only to leave open the possibility that its ultimate prize could be sprung from jail by loyalists of the dictator's fallen regime.

The reversals that confronted the coalition's de-Baathification policy in Iraq provide an additional political and strategic context in which the trial of Saddam Hussein can be seen. Legal verdicts against the Iraqi dictator and his aides that firmly establish their crimes, based on reasonably credible judicial proceedings, will provide important future historical justification for the controversial actions of Western powers that led to his downfall. The question is: Whose history will this be? That is part of the intricate mix of policy and strategy that surrounds the impending trial.

The trial of Saddam Hussein brings us 360 degrees back to Nuremberg and Tokyo in 1945: the justice of the victor. This is so despite the decision -- a wise one -- that the former leader would be tried by an Iraqi court and not an international tribunal. The effort to wrap Iraqi ownership around this victor's justice is an important one, for it will help address the questions of legitimacy that will inevitably arise as history is written -- and rewritten --by the various parties to the conflict. The "illegitimacy" of victor's courts formed a major plank of the defense of Germany's Nazis and the Japanese imperial government at the Nuremberg and Tokyo trials. Predictably, Saddam has already invoked it, too.

Is victor's justice such a bad thing? The answer is: It all depends on the context. Does anyone seriously believe that the Nazis did not deserve justice at the hands of the Allies, in the wake of their aggressive war and the Holocaust, because it was victor's justice? The objective reality of Nazi crimes were well established. Before the U.N. Security Council asserted its powers to include the establishment of international war crimes tribunals, situations such as Iraq, where a war produced a clear victor and vanquished could be expected to produce a victor's court. The creation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda bucked this trend.

That massive atrocities were committed against Iraqis and Kuwaitis by the Iraqi army and state apparatus under Saddam's command is not in question. The challenge that faces the prosecutors of the Iraqi Special Tribunal will be to prove Saddam's guilt to the standards of legal justice. They may or may not have a smoking gun -- evidence that Saddam issued direct orders authorizing the use of chemical weapons against the Kurds, for example. But the principle of command responsibility -- that a superior is responsible for the actions of his or her subordinates where he or she had knowledge of those acts and did nothing to stop or punish them -- is an important legal tool with which tyrants can be held accountable for genocide, crimes against humanity and war crimes. It formed one of the grounds on which the U.N.'s Rwanda tribunal convicted Jean Kambanda, Rwanda's prime minister in 1994, for genocide in 1998.

Show trials, particularly when parts of or all the proceedings are televised, tend to turn into a political circus and sometimes whip up nationalism among groups that identify closely with the defendant as victim. The benefits of making at least some of Saddam's trial public in real time, however, are substantial. Public accounting helps defrock tin-pot dictators. Saddam undertook several dangerous strategic gambits during his reign. That he is now in the dock is simply an outcome he did not foresee.

(c) 2004, Global Viewpoint. Distributed by Tribune Media Services International.
For immediate release (Distributed 7/13/04)