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Trying Saddam in Iraq poses a challenge

Allowing Iraqis to try Saddam Hussein for the crimes of his regime will be a boon to Iraqi sovereignty. But the risks involved should not be glossed over. Analysis. By Juliette N. Kayyem.
The Iraqi daily Azzaman ("Time") shows the disheveled former dictator on its front page in Baghdad on Monday.Akram Saleh / Reuters file

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 missing WMD: Nothing approaching the gigantic stockpiles of weapons of mass destruction described by President Bush and other top officials ahead of the war have been found. This fact will hang over the trail like a cloud. Saddam invariably will be questioned about this ahead of any trial and may decide to highlight this so-far flawed rationale for war in his defense. This is something the Bush administration’s political advisers would like to avoid.
  • Live from Baghdad: The trial is likely to be televised so that Iraqis can participate in and witness Saddam’s judgment. But the presence of U.S. troops in Iraq and the lack of sovereignty wielded by Iraqis outside the courtroom may compromise the verdict in the eyes of much of the world.  Indeed, U.S. troops may find attacks on the increase in the interim as Iraqis ask why the occupation should persist after Saddam’s capture.  Judges also will need to ensure that Saddam is not permitted to use the public forum to launch more propaganda and publicity in his favor from either Iraqis or Arabs in the Middle East, as Milosevic has done with aplomb at The Hague.
  • Independent legitimacy:  The U.S. needs to take all steps possible to prevent the court from being viewed as a puppet of U.S. desires. Granting Iraqi judges the final say is a big step, yet there is no place in Iraq today that could realistically provide a safe forum for such a trial, and anyone participating in the proceedings will be under threat from retaliation. Invariably, U.S. military forces will be intimately involved in providing protection for the trial itself, and for judges, witnesses and court officers. This is a contradiction that will be exploited by those opposed to the American presence in Iraq.
  • The risk of haste:  Already, news reports suggest that Saddam the prisoner is as belligerent and unhelpful as Saddam the dictator. Still, members of the Iraqi Governing Council say they will be ready to set up a trial in
  • Flesh and blood:  It is important to remember that the trial of Saddam will not merely produce a national catharsis in Iraq, but also widespread trauma and possible moves for vengeance against the many, many Iraqis implicated in the crimes of his regime. Saddam, after all, did not kill thousands by himself. The scale of atrocities will become known, and it could become very disruptive to a nation attempting to hold disparate factions and regions together. Saddam’s trial, then, is likely to be not just about the leader, but about how a society can reconcile itself with its past.  In South Africa, that meant amnesty for many vicious white soldiers and citizens as then-President Nelson Mandela felt that the benefits of forgiveness outweighed the need for punishment.  In Russia, crimes of the Soviet government simply went unpunished and largely forgotten, at least officially. How far Saddam’s trial, and future Iraqi war crimes trials, will go is still to be determined.  American officials realize all of this and will be on guard to prevent the tribunal from becoming a tool of vengeance, particularly the agent of one ethnic group against another.
  • Airing dirty laundry:  America’s own role in Saddam’s rise to power and Washington’s support for him through the 1980s — in spite of evidence of his tyranny and use of chemical and biological weapons — will get a new airing in any trial. The basic facts of this support are known and have been written off by those involved in formulating policy, including many currently serving in the Bush administration, as the byproduct of the larger Cold War against the Soviet Union and fears of a spread of Iran’s 1979 Islamic Revolution. But new information invariably could further damage America’s image abroad and feed conspiracy theories about U.S. interests in the region.

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.