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By WILLIAM FISHER
Most of the discussion about Saddam Hussein’s trial has focused on where, by whom, how soon, and by what kind of court he should be tried. These are serious issues that need to be addressed. But there is a far more complex question that few are addressing: can he be convicted?
The reason is that there may be no ‘smoking gun’ that ties Saddam directly to either crimes against humanity or to genocide. And if there is no smoking gun, the reason is probably the system of ‘delegation’ that Hussein used to carry out his alleged crimes. In short, he used others to do his dirty work, and there may well be no paper trail that leads back to Saddam’s signature on a piece of paper, or witnesses to an order who are willing to come forward to offer testimony.
The other way of approaching the issue of guilt is known as ‘command responsibility’. This means not only that Saddam may have given general verbal orders, or unspecified authority to his lieutenants, to carry out criminal acts, but importantly that he personally would have to have known the consequences of such orders or authorities. This is never easy to prove in a court of law, and it may be especially difficult to prove because of the Byzantine security system Saddam constructed to distance himself from direct culpability.
The big ‘ifs’ here are based on the assumption that Hussein’s trial will be conducted not as some kind of kangaroo court, but as a professional legal proceding, conducted professionally, by professionals. If it is anything less than that, whatever verdicts are made will not be credible in the international community. More important, while they may exact retribution, they will teach Iraq nothing about how justice must be achieved within a democratic context.
What we know now is that, while the US Government says it has amassed voluminous evidence against Hussein, it is unclear whether this ‘evidence’ will rise to the level of smoking gun or even command responsibility in a credible court of law. We also know that Hussein will have no shortage of lawyers, and that they will challenge every shred of evidence introduced by the prosecution. And we know that, for both sides, preparation of the case against or for Hussein will be a lengthy and complicated process. All this means that, if Hussein’s trial is to have any credibility, it will not begin any time soon. Most legal experts estimate that it may take up to two years.
Another issue that must be addressed is the scope of the prosecution. Those closest to Hussein clearly have blood on their hands and should be tried as expeditiously as possible. But should the trials of Saddam and his lieutenants also include reference to the many from outside Iraq who facilitated his iron grip on power? These players would surely include those, like the United States, Russia, France and many others who, during and after the Iran-Iraq war, were only too willing to provide Iraq with the weapons and know-how to facilitate Saddam’s iron grip on power and repression.
Given these conditions, many legal scholars are suggesting that Iraq’s war crimes trials begin not with Saddam Hussein, but with his key lieutenants – those directly responsible for carrying out the atrocities we all know were committed. It may be in the pragmatic interests of justice to take this bottom-up approach to accountability, if for no other reason than that their guilt may be far easier to prove. And proving their guilt may provide those convicted with major incentives to testify against their former leader.
This approach may well frustrate the US Government, the Provisional Authority, Iraq’s Governing Council, and the millions of Iraqis who were victims of Saddam’s brutality. All these players are hungry for retribution. And well they should be. But it took 35 years for Saddam Hussein to compile the catalog of horrors for which he will eventually be tried. The cause of justice will not be compromised by prosecuting him in the most careful, professional and credible way, even if it takes a little longer.
About the author: William Fisher has managed international development programs for the US State Department and the US Agency for International Development in the Middle East and elsewhere. He served in the international affairs area in the Kennedy Administration and is a former journalist.