EVENTS

Date:	Wednesday, December 17, 2003
Time:	8:30 AM -- 10:00 AM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

Justice for Saddam, Justice for Iraq: War Crimes, Pursuing Justice, and Sovereignty

Within a week of Saddam Hussein's capture, the United States and the international community were faced with the question of what to do with him. Most pressing is the need to determine how Saddam Hussein ought to be tried-be it by international, Iraqi, or hybrid tribunal. Should all the atrocities committed under Saddam's regime be brought to trial or just select, representative crimes? Can the documentation left behind from regime be used to successfully make a case against Saddam Hussein? On December 17, 2003, AEI hosted a panel to discuss the possibilities for bringing justice to Saddam Hussein and Iraq.

Hassan Mneimneh
Director of the Documents Project for the Iraq Memory Foundation

The tribunal that will eventually try Saddam and other regime members could take two general directions. The tribunal can take a representative form that selects a number of high-profile cases and uses these cases to ultimately convict Saddam. Another approach is a more comprehensive form that systematically focuses on the general rather than specific cases in order to eventually convict. Regardless of which form the tribunal takes, there are considerations of both practicality and principle: practicality considerations are the time and financial resources available to the court, and considerations of principle deal with the sense or definition of justice within Iraq.

Regardless of the shape and form of the content of the court, the documents we hold on the regime can provide ample support and evidence in order to help whichever process is set in motion. However, there is still the issue of what is in these documents and their limitations. In the six million pages of documents that are now available, which is about 1 percent of the total documentary record, there is no smoking gun. To a large extent, Saddam Hussein was shielded from being responsible by a system with multiple layers of intermediaries between Saddam and the execution of the order. Saddam elevated himself to deity-like status, from which he would issue general statements that would then be translated into an abundance of documents to set the process in motion. If Saddam were to be tried for representative cases, ultimately the case will be based on circumstantial evidence and responsibility through the chain of authority.

A far more convincing approach can be constructed. The parallel structure that Saddam erected is documented at length in the record available. The documents that we have and the documents that we can collect seem to favor the comprehensive or systematic approach aimed at indicting the regime. However, 99 percent of the documentary record remains undiscovered, and that immense amount of information could still yield a smoking gun.

Neil J. Kritz
Director, Rule of Law Program, USIP

In addressing the appropriate model for these trials to proceed, it is important to note the progress that has been made in the international community with respect to justice for mass atrocities. The International Criminal Court recently adopted a fundamental principle known as complementarity. In each case, local justice is always to be preferred, and an international approach to justice is to be adopted only when the local option simply does not exist. The importance of ownership stated in this principle recognizes that local society needs to have control over its own fate after having none during so many years of oppression. War crimes trials can help transform how a society approaches its past and moves forward.

A survey done by Physicians for Human Rights this summer in southern Iraq showed that an overwhelming percentage of the Iraqis surveyed felt that trials would be important to deter future abuses. Only a very small percentage was in favor of an international tribunal approach to Saddam's prosecution.

The statute that was adopted by the Iraqi governing council (just days before Saddam's capture) establishes a new type of tribunal that has not been tried before. It establishes a national tribunal-an Iraqi tribunal rather than a formal hybrid. But it provides extensive international involvement in the process. It provides the option for the appointment of international judges to the trial and appeals chamber in addition to the Iraqi judges, and it requires the appointment of international advisors and observers.

It will take months to actually build this kind of tribunal. International assistance should be utilized for tasks such as building a database system to manage the massive amount of documentary evidence and establishing a witness protection program. Building this system, if it's done right, will take time. It is one thing to say: "Oh, we all know Saddam did it;" it's another thing to actually prove it in a court of law. If done properly, this trial will demonstrate clearly that in the new Iraq, even Saddam Hussein has rights and is entitled to the due process of law.

This tribunal will have to be selective and make use of representative crimes. A regime that was so comprehensive in its reach over so many years undoubtedly implicates many people. The tribunal needs to carefully select which cases-standard procedure for any prosecutor-to use and which crimes to focus on in each case. Furthermore, international law recognizes the notion of command responsibility. Ultimately, by using the massive amounts of documentation to show the nature of the system and the systematic nature of the atrocities committed-if you can demonstrate that the commander was aware of the actions of his subordinates and took no action to prevent or punish these acts, than that in itself, under international humanitarian law, becomes indictable.

Kanan Makiya
Founder of the Iraqi Memory Foundation and Member of
Iraq's Constitutional Preparatory Committee

The period of Iraq history from 1968-2003 is discontinuous with the rest of Iraqi history. It must be carefully examined, which is what the Iraq Memory Foundation seeks to do. The Baath regime, which operated by exploiting mistrust, kept a record of everything it ordered done. This enormous paper trail needs to be documented, indexed, and organized not just for the purposes of the coming trials, but to ensure that the truth of this dark period of Iraq history is exposed. The Iraq Memory Foundation is similar to a national archive, but it will include not just paper records from the Saddam's regime but also oral testimonies and interviews as well as artwork produced during the period.

The upcoming trial should not just be about the person of Saddam Hussein. We need to indict the entire system that he created and the system that allowed him to stay in power, not just the major crimes that can be personally attributed to him. Indicting the system itself is an essential step towards democracy; it will make it impossible to forget or deny what happened in the past. It will create a culture for the next generation of Iraqis based on responsibility for our history, and for what we did to ourselves. In addition to being of utmost importance in the upcoming trial of Saddam, preserving the paper trail left by Saddam Hussein and the Baath regime is a central component to creating political awareness among the future generations of Iraqis. Thus far, the U.S. government has not treated this with sufficient seriousness.

AEI intern Stacy Schafer prepared this summary.