New Tribunal Might Be Option for Saddam
nynewsday.com
By Steve Wick
Staff Writer
December 14, 2003, 6:40 PM EST
Just five days ago, the Iraqi Governing Council created a tribunal so that top members of Saddam Hussein's regime could be put on trial for crimes against humanity. Now they have Hussein, himself, to put in the dock.
With Hussein's capture Saturday, the governing council, the United States and its coalition partners must decide how, where and when to put him on trial and what penalty to impose if he is convicted, international law experts say.
These experts say that while Iraqis will surely play a role in any trial, it will almost certainly be done under international auspices, which might mean that the death penalty will not be imposed.
"The crimes are absolutely staggering," said Diane Orentlicher, a professor of international law at American University in Washington. "Most experts accept a number along the lines of 300,000 deaths."
The first question to be answered about any war crimes trial is where it will take place, and under whose auspices, Orentlicher said. The United Nations has a tribunal at The Hague for crimes related to the war in the former Yugoslavia, and a second one recently set up in Tanzania for crimes related to the genocide in Rwanda -- 800,000 deaths in three months. The UN is expected to establish a tribunal next year in Cambodia for crimes committed under the Khmer Rouge.
Orentlicher said she expected the Bush administration would oppose any Hussein trial by an international tribunal because of its longstanding opposition to the International Criminal Court.
"The most plausible solution that the U.S. would support would be an Iraqi tribunal with international involvement," she said. "The Iraqis want to take the lead in this process. And just last week they set up the mechanism to do this, to try violations by the old regime."
As approved by the Iraqi Governing Council on Dec. 10, a court is to investigate crimes committed between July 1968 -- when the Baath Party came to power in Iraq -- through May 1 of this year, when President George W. Bush declared major combat over. Hussein came to power in 1979 but wielded great influence before that.
Human rights experts criticized the council's move, saying the process did not involve international law experts. The law establishing the tribunal calls for Iraqi judges to hear cases presented by Iraqi lawyers, with international experts playing observer roles. In the case of the UN-sponsored tribunals, international judges and lawyers argue and decide the cases.
The death penalty cannot be imposed at the UN tribunals. But even if Hussein is tried by his former countrymen, the death penalty is sure to be hotly debated. Within hours of the announcement that Hussein had been captured, Britain's Foreign Office said it would oppose any use of the death penalty.
"The Iraqi Governing Council recently made clear that they wanted to set up a special tribunal with international assistance, and it is important that the Iraqis are seen to resolve this issue for themselves," Foreign Office spokesman Bill Rammell said.
"Clearly in those circumstances we would make our views clear about the death penalty," Rammell added. "Our position on the death penalty is longstanding: We're opposed to the death penalty."
Amnesty International said Sunday that it opposed putting Hussein on trial in Iraq because the country's penal code, which is suspended until the formation of a permanent governing body in June, provides for the death penalty.
As of late Sunday, U.S. officials had not said whether Hussein should be tried in Iraq or abroad, or what penalty should be imposed in the event of a conviction. Some U.S. officials said they hoped any trial would come quickly.
Sen. Joseph Lieberman of Connecticut, who is campaigning for the Democratic nomination for president, said Hussein should stand trial only where he can be executed. "This evil man has to face the death penalty," he said. "The international tribunal in The Hague cannot order the death penalty."
Sen. John McCain (R-Ariz.) called for a trial in both Iraq and The Hague "so that you can have an exposition of the crimes he's committed that transcended the borders of Iraq."
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