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U.S.: Experts Say American Plans To Try Hussein Expose Trans-Atlantic Fissures

  • Jeffrey Donovan

U.S. President George W. Bush says America will work with Iraqis to ensure any trial of former President Saddam Hussein meets international standards. But human rights advocates, as well as United Nations Secretary-General Kofi Annan, say that the legitimacy and complexity of such a trial requires full involvement of the international community. From Washington, RFE/RL reports on how Hussein's capture has inadvertently exposed yet another fissure in foreign relations.

Washington, 16 December 2003 (RFE/RL) -- American plans to have deposed Iraqi President Saddam Hussein tried by an Iraqi tribunal are heating up some of the same controversies that dogged the Iraq war.

Despite positive international reaction to Hussein's capture on 13 December by U.S. forces, old divisions between the United States and Europe over the death penalty and the primacy of international law are reemerging in reaction to plans for U.S.-picked Iraqis to lead the trial, with the option of sentencing the former leader to execution.

U.S. President George W. Bush said yesterday the United States would work with Iraqis to make sure that any trial of Hussein meets international standards. Bush, who did not mention a United Nations role, told a news conference in Washington.

"We will work with the Iraqis to develop a way to try him that will stand international scrutiny, I guess that's the best way to put it. The Iraqis need to be very much involved -- they were the people that were brutalized by this man," Bush said.

Bush brushed aside a question whether he favors Hussein's execution by saying his personal views do not matter. But he said his message to Hussein is: "Good riddance. The world is better off without you."

Along with 26 million Iraqis, a critical international community will be watching to see whether the trial can help Hussein's victims feel justice is served and consolidate the rule of law in postwar Iraq.

Last week, the U.S.-appointed Iraqi Governing Council adopted a measure setting up a special war crimes tribunal. Council members say Hussein will be tried before the tribunal and could face the death penalty.

Council member Muwaffaq al-Rubay'i, who met with Hussein after his capture, told reporters yesterday in Baghdad: "I can tell you, he will not leave Iraq, and he will be tried in Iraq, and he will be sentenced in Iraq, and he will serve a sentence in Iraq."

But human rights activists say that an Iraqi tribunal set up under the U.S.-led occupation smacks of victor's justice and would lack the legitimacy and expertise that an international court could bring. They also say that after three decades of tyranny, Iraq lacks the judges and legal capacity to deal with such a trial.

Elise Keppler is a counselor for Human Rights Watch in New York City. "It does not ensure that relevant experience will exist for the prosecutors, investigative judges and trial and appeals chambers judges to investigate and try these cases. And cases involving the kind of crimes that Saddam Hussein is alleged to have committed -- genocide, crimes against humanity, war crimes -- trying these cases can be incredibly complicated," Keppler said.

U.S. State Department spokesman Richard Boucher yesterday underscored what he said was the importance of a provision in the Iraqi tribunal to allow for international experts to advise the court.

But Ian Martin, vice president of New York's International Center for Transitional Justice, says advisers are not enough. "International advisers should not, frankly, be provided through the coalition, through the occupying powers, because that will simply add to the impression that this is victor's justice rather than one that carries full international legitimacy and participation," Martin said.

Martin says that while justice dispensed under an occupying power would be of dubious legality and legitimacy, internationally sanctioned trials in Iraq could send a strong signal through the region that abusive leaders will be held accountable.

But he says this opportunity will be lost if authoritarian regimes are able to portray these trials as yet another example of U.S. interference in the region:

"We've advocated for some time that it should be a commission of international and Iraqi experts operating under the auspices of the United Nations to craft a mixed court, international and Iraqi, suitable to the context of Iraq," Martin said.

But experts note that any governments that oppose the death penalty are unlikely to send experts to advise the court.

In a statement yesterday, UN Secretary-General Kofi Annan ruled out any involvement by the world body in a trial that could lead to capital punishment. The UN is considered to have the world's leading expertise in war crimes trials, overseeing courts at The Hague and in Rwanda, among other places.

The U.S.-led coalition says it is within its rights under the Geneva Convention to detain Hussein as a war criminal and have him tried by a domestic Iraqi court.

That is also what Iraqis want, says Laurence Rothenberg, a legal expert at the Center for Strategic and International Studies in Washington.

"The fact is that it appears that that's what the Iraqi people want. And I think part of the United States' goals here is to ensure that what the Iraqis want is what happens. If the Iraqis want to try him in Iraq and execute him, then it really should be up to the Iraqis, not up to people in Geneva or The Hague," Rothenberg said.

Human rights activists counter that the United States would necessarily dominate the process in Iraq, since the trial would be overseen by the Iraqi Governing Council, whose members were hand-picked by Washington. They argue that an internationally led trial would involve many more Iraqis, provide far more expertise to the process and lend it legitimacy.

Rothenberg, who supports the Bush administration's plans for an Iraqi trial under the auspices of the U.S. coalition, believes the issue will ignite another firestorm between Washington and Europe, which opposes the death penalty and sees the UN as the arbiter of international legitimacy.

But he says as on the war, Washington will not compromise. His views are shared by human rights activist Martin, who says the Bush administration has long shown itself opposed to European and UN attempts to boost international criminal law, such as with the International Criminal Court.

Still, Rothenberg acknowledges that an all-Iraqi trial could face key legitimacy questions. "If the trial is viewed as fair, if [Saddam] gets his attorneys, if he gets to put on a defense, if the procedures meet general due process measures, [then] I think the proof will be in the pudding and people will say: 'Well, I disagree with the fact that he was executed, but you can't deny that he was guilty given all the evidence that came up and he had his chance to defend himself,''" Rothenberg said.

However, another question is justice for Hussein's non-Iraqi victims. Experts say that on Washington's insistence, the law that established the new Iraqi tribunal allows for some judgment for Hussein's international crimes. But rights activists say it would not be as sufficient as an international court.

Iran said on 15 December it wanted an international court to try Hussein on criminal charges Tehran was preparing over the 1980-1988 war with Iraq in which around 300,000 Iranians were killed, including thousands in chemical weapons attacks. Israel said it wanted Hussein to stand trial for missile attacks during the 1991 Gulf War, as well as his funding of Palestinian suicide bombers. Kuwait, invaded by Iraq in 1990, has made no demand so far.