Saddam Hussein has been in the custody of United States forces for three months, yet the nature and timing of any trial is far from clear. His case may at present be overshadowed by constitutional and security questions in Iraq, but it will return. Indeed, the deposed despot may be about to provide one final and characteristic dilemma for the international community.
Organisations like Indict long advocated an international war crimes tribunal for Iraq, on the lines of the Yugoslavia and Rwanda tribunals. Though noble, such calls never provided a practical explanation of how Hussein could actually be brought to court. Approve or not of their action, the US government did come up with a way and carried it out. The trial of Hussein is now realistic, and just as his journey to the dock had implications beyond Iraq, so the place, execution and sentence of his trial will have implications far beyond the fate of one man.
The Iraqi solution
In December 2003, in the aftermath of Husseins arrest, Salem Chalabi the man responsible for preparing the case against him announced that in the interests of a speedy trial, Hussein should be tried for around a dozen specific atrocities: these, he said, would include the killing of Sunni tribesmen and the killing of prominent Shia clerics and the 1988 massacre at Halabja.
If the Iraqi Governing Council-appointed court proceeds in this way the trial will certainly be short: what is doubtful is whether it will be sufficient. If the remit of the Hussein trial is drastically limited, then it could be a continuing source of bitterness to thousands of other families in Iraq whose sufferings were not legally acknowledged.
Moreover, such a trial would be confined to crimes committed within Iraq. A Hussein-in-Iraq trial would not touch on the deaths of Kuwaitis or the million killed during the 1980-88 war of aggression against Iran. It would not cover Husseins flouting of the United Nations and international law, his funding of Palestinian terrorism or evidence of wider Islamist terror-links. A short trial may content some, but leave many more deeply aggrieved.
Yet an Iraqi-only trial cannot be open-ended. If it is, then it is possible that the new Iraqs first four to eight years could be diverted by focus on the crimes of its former tormentor.
The international solution
In this light, the International Criminal Court might seem the appropriate place to try Hussein on the totality of his crimes. But recent experience is not hopeful. In February 2004, prosecutors in The Hague wound up their case against Serbias former president, Slobodan Milosevic. Much hope has been invested in the process the first trial before an international court of a deposed head of state.
For a time it seemed that the Milosevic trial would provide the model of international justice for the 21st century. But the trial proper began two years ago, and Milosevic now has allocated to him the same amount of time to make his defence as the prosecution had to make their case. You can see why people like Salem Chalabi are keen to avoid the Hague process and also why international defenders of the court are less vocal than they might be in wishing to see Hussein at The Hague.
In truth the ICC was never a realistic option for two reasons. The US administration is not supportive of the process. Its attitude is both open to criticism and understandable. Since the UN did not back regime change in Iraq, demands for the UN to have the right to try the regime look weak. Add to that the consistent threat of the ICC against President Bush and his allies, and the pursuit of a case against Ariel Sharon by Belgian lawyers even within weeks of 11 September 2001, and you can see why justice continental-style has not endeared itself to this American administration.
But really, the problems of attaining the new ideals of international justice have proved nearly insurmountable. In the interests of time, a number of important charges against Milosevic have been dropped over the last two years. This may go some way to appeasing critics who see these tribunals as unwieldy and unending, but it leaves a moral as well as a legal vacuum.
This is the dilemma for defenders of justice in the face of crimes like Husseins. If such trials are to be conducted at all, it is reasonable to expect that they be exhaustive. Only thus can they consider the totality of the crimes; only thus can they possibly give the victims, both alive and dead, the justice as individuals so completely taken from them by the bureaucracies of murder.
The moral solution
The limitations of both the national and international solution share a further factor in common: preferring one court over another presumes there could be a court in which he could in principle be judged not guilty. For this reason, some have long been of the opinion that the trial should be carried out by a military court. This brings us to the unspoken problem at the moral heart of this matter: should the killer of so many be killed himself?
The divisions between the United States and most of Europe that were evident in the war against Husseins regime itself are also present in attitudes to capital punishment. The governments of the European Union hold the practice to be absolutely wrong (and state universal abolition as their aim). This is the reason why the United Kingdom government said from the moment of Husseins capture that it could not take part in a court which had the power to put him to death.
Many people will see hypocrisy in a rationale that sees death in warfare as an occasional necessity of achieving peace, while the execution of anyone in peacetime as always unjustifiable. Yet the UK governments stance also reveals an important truth: it is a greater problem killing a man in peace than in war.
The case of Adolf Eichmann, the organiser of the Nazi genocide of the Jews and perhaps the most appropriate precedent for Saddam Hussein shows that this problem is one to be faced. Eichmann stood trial in 1962 on his own account, yet was also held responsible for the operation of an entire system. For many, Eichmann is the single most persuasive case for the death penalty, but even in that case many people invoked both practical and moral objections to the carrying out of the sentence. If an Eichmann is kept alive might he not, like his fellow-Nazi Franz Stangl, provide his accusers and the world with the insight they need not only on the specifics of his crimes, but also into the nature of evil itself?
In the case of Saddam Hussein, his interrogators may already have extracted information leading to the remnants of his arsenal of murder or the prosecution of his cohorts. If, as some reports state, he refuses to speak, he must be kept alive until he does. The carrying out of any death sentence should not be eager.
For after all, what other option is there? Would the Arab governments who objected to the insult of Hussein shown captive acquiesce in his life-long imprisonment in an American jail? And if he were imprisoned in Iraq, could it ever be guaranteed that he would remain there? If it ever comes, de-Baath-isation in Iraq is a long way off. The prospect of a successor leader or even a single prison guard with sympathy towards him allowing him freedom is too great a risk.
The options seem to point to one end for Saddam Hussein. Whatever answers are found to the where and how of the trial, many of us may wish that he had been dragged from his hole dead last December rather than crawling from it alive. Even at the start of the 21st century it may be that a soldiers bullet would have spoken greater justice than all the courts of the world.
