Akram Saleh  /  Reuters file
The Iraqi daily Azzaman ("Time") shows the disheveled former dictator on its front page in Baghdad on Monday.
By NBC News analyst
updated 12/17/2003 7:00:30 AM ET 2003-12-17T12:00:30

In the last scene of the movie “The Candidate,” Robert Redford — a novice politico who has betrayed friends, earned enemies and even engaged in an extramarital affair to win election as a U.S. senator — turns to his campaign manager and innocently asks, “Now what?”

Not a bad question.  The capture of Saddam Hussein is a tremendous success in the war, but it merely means that a new chapter in America’s postwar strategy begins.  What to do with the man — really only a man — who has become the most famous war-crimes defendant since the Nuremburg tribunal after World War II is now a key question. 

The options are plentiful, but there appears to be little doubt that Saddam will remain, and be judged, in Iraq.  Pundits or foreign diplomats may discuss alternative venues — for instance, an American military tribunal, or even a U.N. war crimes court like the one currently prosecuting former Yugoslav President Slobodan Milosevic in The Hague. Indeed, the Bush administration even suggested a U.N. solution in October.

But, as President Bush remarked in his press conference Monday, the Saddam issue is “for the Iraqis to decide.”  The Iraqis want him, and the Iraqis want him dead. Given this reality, the only politically and legally viable option open to the Bush administration is to turn Saddam over to an Iraqi war tribunal.  The Iraqis need to be seen as controlling their own destiny, and that means overseeing the adjudication of the man who brought them to where they are today. 

Yet a decision to prosecute Saddam in Iraq raises its own dilemmas.  Last week, the Iraqi Governing Council, the U.S.-appointed provisional government of the country, created an Iraqi war tribunal. The move was made with the approval of the U.S.-led Coalition Provisional Authority, but public details remain scant.  We do know that the Iraqis intend for the court to be led by Iraqi jurists, both exiles and those who served during the Saddam years. But the exact contours of this tribunal are still being studied by U.S. officials.

Another political complication is that the United States suspended the death penalty in Iraq after the capture of Baghdad. That is likely to be revisited now that Saddam is in custody, but the timing of any move to reinstate it before his trial is certain to produce an international outcry from Europe and other areas of the world that have rid their own legal codes of capital punishment.

In any event, the administration of a war crimes tribunal in Iraq will raise questions for the Iraqis, as well as the United States:

The capture of Saddam is no small achievement: a difficult, dangerous and frustrating operation. But it would be wrong to underestimate what lies ahead, even setting aside the violent insurgency being waged only in part in Saddam’s name.  Iraq has suffered tremendously as it was governed by the whims of a very dangerous man. Ironically, the future of an Iraq that is governed, and committed, to the rule of law is closely tied to how it will treat and administer justice to the man who despised the very idea. 

Juliette N. Kayyem, a former member of the National Commission on Terrorism, teaches on law and national security at Harvard’s Kennedy School of Government.  She is an NBC News analyst.


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