Whether or not due process is observed for illegal combatants will show how far Western democracies have parted ways with dictators like Saddam.

Ksenia Mikhailova

The US has yet to give a clear answer to the world community as to what Saddam Hussein’s fate will be. However, according to George Bush, Iraq has the right to judge its former tyrant. In addition, the American administration has already promised the Provisional Governing Council that it will hand over Hussein.
The Council is made up of Iraqi politicians who exhibited their loyalty to the US during the most recent war. During its brief existence, it has already succeeded in creating a special tribunal to judge Baath party members, and Hussein will become its crowning glory. Not surprisingly, with the total collapse of the Iraqi political system, a special judicial agency had to be established in order to at least create the illusion of a functioning court.
In addition to this illusion, little else is being asked of this agency. The Iraqi authorities have already announced that after a fair trial Saddam Hussein will be executed. The Council member’s lack of familiarity with the concept of “innocent until proven guilty” is forgivable, as they are the victims of state terror and an illegitimate, partially destroyed regime. Yet it is still surprising that the civilized US, having brought democracy and human rights to the Iraqi people, did not refuse to hand over Hussein after hearing such a clear demonstration of a complete lack of understanding of contemporary judicial principles.

In general, the Western democracies led by the US have reacted calmly to the creation of an extraordinary judicial agency to try Saddam and other Baath party members. The prohibition on the creation of extraordinary national courts, however, is one of the basic principles of international criminal law. At the same time, why should the Iraqis, who supported their dictator, care about international law? The US can declare that the court is not an extraordinary court just as easily as it announced that Hussein was not a prisoner of war.
Iran and Kuwait, states with a direct interest in investigating crimes against their citizens, have yet to give any concrete comments on the possible trial of Saddam in Iraq. However, it is highly unlikely that such a trial will be in their interest. An Iraqi court under US control will most likely not go into the details of the war against Iran and the attack on Kuwait, as it will not want to revive the scandal surrounding the assistance the CIA gave the former dictator.
The question remains as which laws the Iraqi court will use to try Hussein. Will it use Iraqi criminal law? Will it rely on international law in its examination of the operations against Iran and Kuwait? The direct implementation of international law by national courts even in liberal countries like Germany and Holland is extremely rare. Judging by the fact that the accused has already been sentenced before his trial has even begun, Hussein will apparently be tried not according to international law or even local custom, but in accordance with the political interests of those currently in power.
The US’ coalition allies and the EU can insist on an independent international tribunal to try Hussein until they’re blue in the face, but only states that have suffered from his actions are capable of a judicial initiative, meaning Iraq, Iran, Kuwait, or the UN Security Council. The Security Council, however, cannot do a thing if the US uses its veto powers.
In recent years, international tribunals have become increasingly common. Along with the tribunals currently in operation regarding Yugoslavia and Rwanda, courts for Sierra Leone and East Timor are also in the works. Milosevic’s example shows that even with all the difficulties of bringing the former head of a government to trial, in principle international tribunals can be extremely effective.
In Hussein’s case an international tribunal would also be the proper solution. A tribunal of this sort based on international law and following international judicial procedures would be able to fully examine the accusations not only of genocide against the Iraqi people, but also aggression toward Iran, the illegal military operations against Kuwait, and genocide of Kurds. The sentence would then be legitimate in the eyes of the world community and pronounced competently in accordance with international and criminal law. However, to all present appearances, the US is doing everything it can not to allow an open and public legal trial for Saddam, as his foreign policy is inextricably tied to US economic policy.

The best option in terms of legitimate legal proceedings and fair punishment would be to hand over the trial to the recently formed International Criminal Court. This court is independent of the US and at the same time possesses established investigative and enforcement mechanisms via the Security Council. However, the fact that the court only has the right to investigate crimes committed after July 2002 proves to be an insurmountable obstacle.
In any case, if an international tribunal is going to be established, it has to be done quickly. American military officials by interrogating Saddam have already violated the Geneva Convention which states that a prisoner of war is only obliged to give his name, date of birth, and rank. If the US hands over the prisoner to the Iraqis, even more serious breaches in the acknowledged international principles for criminal proceedings are likely to occur. The problem is not only that the former dictator’s rights are being violated. The notion of “the fruits of a poisoned tree” has long existed in criminal law. This means that if serious procedural violations have been permitted at the beginning of an investigation or trial, everything the court will do in the future, including the final sentence, is considered invalid.
We can only hope that the UN Security Council will support the initiative to create an international tribunal and that the US will give in to British and European pressure. In the end, the extent to which due process is observed regarding illegal combatants will prove how far we ourselves have moved away from Saddam’s alleged crimes.

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