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: firstname.lastname@example.org.
This column originally appeared in the San Diego Star.