Why hasn't Saddam Hussein been indicted?

About the author
Rosemary Bechler is openDemocracy Editor. She chaired the National Peace Council and Peaceworkers UK and edited New Times before joining openDemocracy in 2000. For the British Council, she has edited four volumes of Britain and Ireland: Lives Entwined (2003 – 2012) and written Unbounded Freedom – a guide to Creative Commons thinking for cultural organizations (2006). Her compiled volume on the Convention on Modern Liberty was published by Imprint Academic in 2010. Her PhD was on Samuel Richardson: she has reviewed literature for the TLS and politics for Political Quarterly.

Whatever the discord at the London conference of the Iraqi opposition, there was agreement on one thing: that Saddam Hussein and those close to him should be indicted as war criminals. There is plenty of evidence that will hold up in any international court, and yet, to this day, the project has never got off the ground.

Building the case and spearheading the lobbying effort for an international war crime tribunal on Iraq is a UK-based organisation called INDICT, whose board includes members of the Iraqi opposition, leading international lawyers, a Kuwaiti representative and Peter Galbraith, the former US ambassador to Croatia. Its President is Ann Clwyd, Labour Member of Parliament and member of the House of Commons Select Committee on International Development.

Ann Clwyd led INDICT in its difficult teething days from its launch on voluntary donations in 1997 until it was awarded $3 million under the Iraq Liberation Act passed by the US Congress in 1998. When she says that she has been ‘shouting in a vacuum for a very long time’, she means it.

Bringing a dictator to justice

Twenty-five years ago, while living in Cardiff, she befriended Iraqi and Kurdish students, and found it hard to believe their grim reports of life under Saddam Hussein. Evidence was plentiful for those who wished to find it however, and once elected MP for Cynon Valley (in Wales) in 1984, she also became chair of the Campaign Against Repression and for Democratic Rights in Iraq (CARDRI): ‘Even then, in the mid-1980s, I only knew the first name of CARDRI’s secretary, because people were living in such fear…. Isn’t it amazing that they were so afraid of people knowing their whereabouts and their surnames – people like us who were there to highlight the human rights abuses in their country?’

How does she feel about the relatively recent discovery by the US and the UK governments that this regime urgently needs replacing? She agrees that it has taken an unconscionably long time for them ‘to actually acknowledge that such crimes have taken place and are still taking place.’ But she is not one to miss an opportunity. ‘We feel that at last focus is being given to the awful human rights abuses committed by the regime over the last 20 years.’

Ann Clwyd was the first foreign politician to visit fleeing Kurds in the mountains during the mass exodus that followed Hussein’s crushing of their uprising in 1991. While accepting that war may sometimes be necessary – she cites Kosovo and, more tentatively, Afghanistan, as recent examples – Clwyd’s long, supportive association with Iraqi Kurds is one reason why she is now cautious about the military option: ‘I say to the Kurds all the time, “Remember what’s happened in the past”. I’ve heard generals talk about their experiences in northern Iraq. We remember when the Americans encouraged them in their uprisings and said, “We’ll be there when you need us, we’ll be there right behind you”, and how they were terribly let down and a lot of people died as a result. So I always say, “Be very careful. The Americans have promised before. Make sure they deliver.”’

It all depends what you mean by ‘delivery’. Clwyd has recently returned from Afghanistan, where her assessment of the US-led war against the Taliban depends on what happens from now on. ‘It was necessary, as long as the follow-up continues.’ The House of Commons Select Committee on International Development is currently completing its report on a reconstruction process, which, she agrees, is painfully slow. ‘Three of us went there to see what was going on. Of course, the number one concern is security, and all the evidence suggests that the place is very far from secure. The UK has been good on aid delivery. But the aid from other countries needs to go in much more rapidly and too much has to be spent on humanitarian aid and not enough on reconstruction.’

Two years ago, another International Development Committee report gave her a chance to formulate her equally strong view on the effect of sanctions on Iraq: ‘A lot of guff is talked about the effect of sanctions. There is a great deal of inaccurate information about it. We took our evidence from a wide range of people, and the conclusion we came to was that Saddam Hussein was primarily responsible for the suffering of his own people. You only have to look at what happened in the north of Iraq, in Kurdistan, where they suffer a double set of sanctions, but with far less disastrous results: the same sanctions apply, and Saddam Hussein’s sanctions apply there as well….’

Nevertheless, she agrees that the high levels of dependency on food supplies in Iraq offer another good reason why war should be avoided if at all possible. ‘This is why I’m pushing INDICT so hard.’ Clwyd views the branding of Hussein and his regime as international war criminals as a third way between appeasement and military action. ‘If you want regime change, then do it through using international law, rather than by war,’ she says. ‘(Slobodan) Milosevic was indicted while he was head of state, and nobody thought that two years later, he’d be sitting before the Hague tribunal. It discredited him, and once you discredit their power base, things happen.’

At the time, a lot of people thought that indicting Milosevic was just a sideshow. ‘When Americans talk about regime change – as they do all the time now – they mean post-war. But I’m talking about regime change pre-war. On the evidence of war crimes, crimes against humanity, which we have got against leading members of Hussein’s regime, it is possible to indict them as Milosevic was indicted, which led directly to the crumbling of that regime.’

From what she knows, Clwyd believes that this is an approach which can work just as well if not better in Iraq. ‘Kanan Makiya always makes the case that the best way to deal with Iraqi leaders who are no good is actually to discredit them in the eyes of their own people. Traditionally, this was always the practice in Iraq: you make them lose face. What better way of doing that than indicting them?’

Indictment is possible under various international laws, such as the genocide, Geneva and torture conventions. The accusations range from actions against the Iraqi Kurds in the 1980s to those against the Marsh Arabs in the 1990s.

So close to the mountain top

Two years ago, INDICT asked the British government to bring charges against Saddam Hussein and his regime for the torture, beating, rape and use as human shields of many of the 4,000 Britons who were taken hostage by Iraq at the beginning of the Gulf War. They calculated that it would only take one country to start the snowball rolling, following the example of Spain’s prosecution of ex-Chilean dictator Augusto Pinochet: ‘We also have cases before prosecutors in other countries – Switzerland, Norway and Belgium – relating to victims of the regime now living in those countries.’

Using strict legal guidelines, INDICT’s three researchers build cases that establish the presence of the accused at the scene of a crime, rather than proving a chain of command, as is traditional in war crimes cases. A key goal has been to prevent members of Hussein’s regime from travelling abroad. The larger aim was to persuade the United Nations to set up a war criminals tribunal on Iraq, like those established for Rwanda and the Balkans. They have collected evidence in around twelve countries in all.

But nothing has happened, despite the mass of evidence and the opinion of INDICT’s international lawyers that: ‘Short of getting Saddam Hussein to sign a confession in his own blood, there’s nothing more we could possibly need to bring about a prosecution.’

There are members of the Iraqi opposition coordinating committee who believe that the delay in creating such a tribunal is due to fears of what will be revealed; that, for example, if Hussein is put on trial, evidence will inevitably reveal the extent to which the United States and its allies have provided the very chemical, biological and nuclear equipment used in making his weapons of mass destruction. There might be a range of fears of a backlash effect. The Wall Street Journal on 10 January 2003 carried a front-page article entitled Sympathy for Milosevic Grows Among the Serbs As his Trial Continues. People are not sure if the trial is really going well for the forces of progress.

But other powerful arguments tip the balance in INDICT’s favour. Peter Galbraith, a key player in lobbying for the International Criminal Tribunal for the Former Yugoslavia, wants an Iraq tribunal formed immediately so that Hussein can be quickly brought to justice, and an orgy of post-war revenge and retaliation avoided. He argues that it is vital to have a system that everybody judges fair and transparent, holding Hussein and his key associates accountable for the crimes committed. Otherwise, ‘it will be very difficult to get a full reconciliation in Iraq.’ It is his belief that INDICT’s long years of laborious gathering of evidence and building of cases will pay off as soon as Hussein is no longer in power.

For a brief period it even looked as if Ann Clwyd’s INDICT might pull off the near-impossible, and bring together under one banner the passionate hopes of those who want to see a war in Iraq, and those who equally strongly, do not. In recent weeks 177 MPs of all parties, including many of the Conservative Party Foreign Affairs front-bench spokesmen, signed an early-day motion calling for Britain’s Attorney General, Peter Goldsmith, to act on the information. Ann Clwyd seized the opportunity: ‘MPs here are realising that INDICT offers an option other than war, and one which appeals to them. We’re going to set up a Friends of INDICT in the House of Commons, and we would like parliamentarians in other countries to support our aims. We would very much welcome that.’

But this week, INDICT finally received its reply from the Attorney General. He would not be pursuing these cases any further. The police were too busy – end of story. Ann Clwyd is adamant that the decision is not for lack of evidence. Could it be, she speculates, that somebody somewhere is still cherishing the hope of doing a deal with Saddam Hussein? Most of the Iraqis she talks to agree with her: Saddam Hussein doesn’t do deals.