In spite of its unilateralism; its disregard for international law; the disgrace of Guantanamo Bay, where prisoners are held without access to legal counsel; and continuing U.S. attempts to destroy the new international criminal court, the administration of George W. Bush has unexpectedly bumped its head against a quiet new reality. Over the past decade, the expectation has been growing among nations that tyrants will not be summarily dispatched by assassins, but captured and tried in a transparent court of justice that functions according to the highest standards of law and due process.
These are relatively new assumptions, dating from the Nuremberg Tribunal in the aftermath of the Second World War — hopes that fell into a deep slumber during the Cold War, to be revived in the 1990s.
Appalled by the return of genocide and Nazi-style concentration camps in Bosnia, the United Nations created courts for the former Yugoslavia and for Rwanda. Since then, the world has seen the indictment and trial of the first ruling head of state, Slobodan Milosevic, and the first convictions for the crime of genocide.
These trials are slow and expensive, but the cost of in-depth investigations, a fair prosecution and an active defence is high. What we, as global citizens, get in return, aside from assuring that major perpetrators are held accountable for their acts, is new international criminal law. Such law will serve the future — as when the International Criminal Tribunal for the former Yugoslavia found that the use of mass rape as a weapon of war was a crime against humanity.
Given the failed “shock and awe” attempt to kill Saddam Hussein in his bunker at the outset of the Iraq war, one can reasonably infer that an open trial, during which Saddam might decide to spill the beans on the hypocrisy of Western governments whose interests led them to share his bed, would not have been President Bush’s first choice.
On the other hand, dispatching Saddam as he emerged bedraggled from his lair, would have ignited chaos in the Arab world and elsewhere. It is a clear statement about the times we live in that Mr. Bush had, and has, no real choice.
Significantly more than half the countries in the world have already committed themselves to the International Criminal Court, which is no small matter considering U.S. efforts to undermine it by bribing small, needy nations not to co-operate.
If the tribunal-to-be is seen to be legitimate and independent — both unknown ifs at this writing — the trials of Saddam and his entourage could become part of the process of national rebuilding in Iraq.
There are interesting precedents. Whatever its shortcomings, the postwar Nuremberg tribunal, with its transparent procedures, had a salutary effect on Germany. The facts about the attempted genocide of the Jews that emerged from the evidence were indisputable, which is why, after more than half a century, the Nazi denial movement has never gained historical credibility.
Most Germans, like Iraqis today, were confused by the chaos of war. Some had ideas about what had happened, others guessed. But years of incessant propaganda meant that the majority lacked a clear idea about the recent past. The Nuremberg Trials provided the basis for an authentic historical record of the Nazi period, a veritable gift to Germans and their progeny. If the trials of Saddam Hussein and his associates do nothing other than provide Iraqis with a detailed, true account of the events of their recent history, they will have been worthwhile.
The Milosevic trial in The Hague is providing the same sort of factual record to the peoples of the former Yugoslavia. Whether or not they are ready to embrace it, the evidence is accumulating. I’m convinced that one day this record will become the bedrock for a shared, historical narrative about what happened in Croatia, Serbia and Bosnia following the death of Tito.
Because they place a symbolic marker between the abuses of the past and the new era, properly run trials can also play a role in framing the future direction of society. Making major perpetrators accountable is a key to the transition.
None of that is likely to happen in Iraq if the court that finally emerges lacks credibility in the eyes of the world, if its proceedings look like vengeful show trials where defendants, especially Saddam, are dispatched with kangaroo justice.
The United States must tread a careful line. George W. Bush may sound properly magnanimous when he says that it is up to the Iraqis to decide on the procedure they want, but a judicial assessment by the United Nations recently concluded that the Iraqi judicial system is dysfunctional. (It would be unrealistic to expect a country that has been tyrannized for decades to have courts that operate at a recognizable standard.)
Furthermore, the Iraqi Governing Council, under whose auspices a general tribunal has been created, is not an independent body; it is controlled by the U.S.-led Coalition Provisional Authority. If the Bush administration is seen to be pulling the strings by determining who will sit on the bench and what evidence will be allowed to come forward, the trial of Saddam Hussein will become a mockery.
A positive suggestion being floated is to establish an impartial committee of experts, including Iraqis — people with a deep knowledge of international law and the operation of international criminal tribunals — to help set up a transparently fair court. There are now many such people in the world. And rather than debate whether the trials should be conducted by international jurists, or by Iraqis, why not have a mix of both on the bench to ensure legitimacy?
Whether or not the United States would allow that is an open question, but several consequences of the capture of Saddam are already visible. First, his trial is poised to become the greatest test of the Bush administration to date. Second, it is likely to signal the future of democracy and human rights in Iraq.
Finally, the trial of Saddam Hussein will be a marker — either positively, or negatively — in the ongoing struggle to rise above vengeance by favouring impartial justice, even for those who have embraced destruction.
Erna Paris is the author of Long Shadows: Truth, Lies, and History. She is currently researching a book on the politics of international justice.