FacebookTwitterGoogle+RedditEmail

How to Try Saddam

by MARJORIE COHN

Will Hussein Hussein really “face the justice he denied to millions,” as promised by George W. Bush the morning after Hussein’s arrest? Although President Bush has said Hussein will receive a public trial with Iraqi participation, he refuses to identify the venue, perhaps because his advisers are still undecided about the politically propitious course to take.

There is no doubt, however, that Bush will determine where, when and how Hussein is tried, and probably ultimately, executed. We can also expect the timing of the “justice” Hussein receives to be pegged to the U.S. election next November.

A public trial for Hussein, while providing cathartic effect for many Iraqis, poses certain risks for Bush. In defending himself against charges of genocide, war crimes and crimes against humanity, Hussein would bring up the United States’ support of his government while he was gassing the Kurds and the Iranians.

Indeed, Hussein received these chemical weapons from U.S. corporations with the blessing of the U.S. government. Shucks, Hussein may even subpoena Donald Rumsfeld to question him about his 1983 visit with Hussein, after which U.S. intelligence was provided to Hussein while Hussein was using chemical weapons against Iran.

The question is whether Hussein will be tried in an Iraqi tribunal, a U.S. military commission, or a tribunal set up by the United Nations with international and Iraqi participation. As Bush and his people ponder how Hussein is likely to embarrass them, we may see them backtrack from the promise that the proceeding will be public.

Bush’s preferred venue may well be one of his new military commissions. People who appear before them will enjoy only the rights Bush or Rumsfeld decide they should have. The accused can be tried in secret with the use of secret evidence, with limitations on his choice of counsel, and he can be executed with no judicial review. He would, however, have the right to appeal to Bush.

The new Iraqi criminal tribunal statute, which was enacted on Dec. 10, was established with $75 million of U.S. money by the United States’ handpicked Iraqi Governing Council, and approved by the Pentagon and the State Department. It will have jurisdiction over genocide, war crimes and crimes against humanity, as well as some offenses under Iraqi law.

Although it has the power to hire international experts as advisors, all judges would be Iraqis, who have scant experience trying complex war crimes cases.

Neither the International Criminal Court nor the Yugoslav or Rwanda tribunals allow for the death penalty; yet, the new Iraqi court would probably permit capital punishment. Moreover, its decisions would be tainted because it was created while Iraq was under occupation.

Bush has consistently thumbed his nose at the International Criminal Court, which was developed over a 50-year period by international legal experts and scholars to try the most heinous crimes. It would have jurisdiction only over crimes committed after it came into effect in July 2002. But Bush has said Hussein will be charged with crimes committed since his Baathist Party came into power in 1968.

Thus, the International Criminal Court could not be used to try these charges.

Hussein should be tried in a special hybrid tribunal established by the U.N. Security Council, like the one in Sierra Leone. It would utilize international standards of due process and have significant Iraqi participation.

Major Nazi leaders were tried and convicted in public proceedings in which the defendants were able to hear the evidence against them. But, U.S. leaders were never held accountable for incinerating 100,000 Japanese civilians with the atomic bomb. This “victors’ justice” is likely to repeat itself in the trial of Hussein. Bush and his advisers will not be tried for their war of aggression against the people of Iraq.

MARJORIE COHN is a professor at Thomas Jefferson School of Law in San Diego, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive council of the American Association of Jurists. She can be reached at: cohn@counterpunch.org.

This column originally appeared in the San Diego Star.

 

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She is co-author of “Cameras in the Courtroom: Television and the Pursuit of Justice.” Her most recent book is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.

More articles by:
Weekend Edition
May 27, 2016
Friday - Sunday
John Pilger
Silencing America as It Prepares for War
Rob Urie
By the Numbers: Hillary Clinton and Donald Trump are Fringe Candidates
Andrew Levine
Hillary’s Gun Gambit
Paul Street
Feel the Hate
Daniel Raventós - Julie Wark
Basic Income Gathers Steam Across Europe
Gunnar Westberg
Close Calls: We Were Much Closer to Nuclear Annihilation Than We Ever Knew
Jeffrey St. Clair
Hand Jobs: Heidegger, Hitler and Trump
S. Brian Willson
Remembering All the Deaths From All of Our Wars
Dave Lindorff
With Clinton’s Nixonian Email Scandal Deepening, Sanders Must Demand Answers
Pete Dolack
Millions for the Boss, Cuts for You!
Peter Lee
To Hell and Back: Hiroshima and Nagasaki
Karl Grossman
Long Island as a Nuclear Park
Binoy Kampmark
Sweden’s Assange Problem: The District Court Ruling
Robert Fisk
Why the US Dropped Its Demand That Assad Must Go
Martha Rosenberg – Ronnie Cummins
Bayer and Monsanto: a Marriage Made in Hell
Brian Cloughley
Pivoting to War
Stavros Mavroudeas
Blatant Hypocrisy: the Latest Late-Night Bailout of Greece
Arun Gupta
A War of All Against All
Dan Kovalik
NPR, Yemen & the Downplaying of U.S. War Crimes
Randy Blazak
Thugs, Bullies, and Donald J. Trump: The Perils of Wounded Masculinity
Murray Dobbin
Are We Witnessing the Beginning of the End of Globalization?
Daniel Falcone
Urban Injustice: How Ghettos Happen, an Interview with David Hilfiker
Gloria Jimenez
In Honduras, USAID Was in Bed with Berta Cáceres’ Accused Killers
Kent Paterson
The Old Braceros Fight On
Lawrence Reichard
The Seemingly Endless Indignities of Air Travel: Report from the Losing Side of Class Warfare
Peter Berllios
Bernie and Utopia
Stan Cox – Paul Cox
Indonesia’s Unnatural Mud Disaster Turns Ten
Linda Pentz Gunter
Obama in Hiroshima: Time to Say “Sorry” and “Ban the Bomb”
George Souvlis
How the West Came to Rule: an Interview with Alexander Anievas
Julian Vigo
The Government and Your i-Phone: the Latest Threat to Privacy
Stratos Ramoglou
Why the Greek Economic Crisis Won’t be Ending Anytime Soon
David Price
The 2016 Tour of California: Notes on a Big Pharma Bike Race
Dmitry Mickiewicz
Barbarous Deforestation in Western Ukraine
Rev. William Alberts
The United Methodist Church Up to Its Old Trick: Kicking the Can of Real Inclusion Down the Road
Patrick Bond
Imperialism’s Junior Partners
Mark Hand
The Trouble with Fracking Fiction
Priti Gulati Cox
Broken Green: Two Years of Modi
Marc Levy
Sitrep: Hometown Unwelcomes Vietnam Vets
Lorenzo Raymond
Why Nonviolent Civil Resistance Doesn’t Work (Unless You Have Lots of Bombs)
Ed Kemmick
New Book Full of Amazing Montana Women
Michael Dickinson
Bye Bye Legal High in Backwards Britain
Missy Comley Beattie
Wanted: Daddy or Mommy in Chief
Ed Meek
The Republic of Fear
Charles R. Larson
Russian Women, Then and Now
David Yearsley
Elgar’s Hegemony: the Pomp of Empire
FacebookTwitterGoogle+RedditEmail