December 16, 2003

Saddam Captured – Now What?
by Alan Bock

It is almost impossible not feel a certain degree of karmic satisfaction at the photos of Saddam Hussein looking like a homeless bum brought in during a sweep of notorious hangouts for hopeless drunks. It reminds us that we are all human, that political power is fleeting and seldom entirely satisfactory even (or perhaps especially) to those who wield it. Those that various political systems want to hold up as superhuman paragons turn out to be only human after all, and sometimes particularly cowardly and pathetic human beings.

In his great novel First Circle, Russian author Aleksandr Solzhenitsyn created a memorable portrait of the Soviet dictator Stalin during his final years at the pinnacle of supreme power. The man who was perhaps the most ruthless and powerful tyrant in the world was effectively confined to a small apartment of rooms in the Kremlin. Having wielded power ruthlessly for decades he had created innumerable enemies and could trust nobody. His food had to be tasted before he would touch it. He was constantly worried (and as it turns out, not without cause) that people were plotting against him. He had virtually no human companionship except a few servants. A victim of his own spite and plotting, he was almost somebody one could feel sorry for, if you could overlook the minor fact that he was responsible for the deaths of millions of innocent people.

When I read that years ago, I was struck by how empty is the promise of political power. Not every political leader suffers isolation and the inability to trust anyone, but most feel it to some degree. To gain political power is to relinquish almost everything that makes a decent person human, and it's true for democratic leaders as well as tyrants. A few thrive on it, but rare indeed is the political leader who doesn't wonder, some nights when sleep doesn't come easily, whether it was worth it. Not only do one's personal human relationships suffer, but whatever tattered remnant of a personal conscience a political leader cannot repress must deliver an unwelcome rebuke from time to time.


So Saddam Hussein is a sad character. Sic semper tyrannis. But his capture will hardly be the magic path toward success in the occupation and democratization (if anybody really holds that as a goal anymore) of Iraq.

It is hardly surprising, in a media-saturated culture such as ours, that Americans tend to personalize and dramatize international events, especially those in faraway countries about which we know little. It provides a semblance of a structure for understanding. If this were a movie, Saddam Hussein would be the pluperfect villain and his capture would be the triumphant end of the story. Cue triumphant music and roll credits. That's certainly the way most of the media played it the first day.

In the real Iraq, however, Saddam's capture could turn out to be only a marginally significant episode in a very long story. He may have had something to do with the increasingly violent resistance to the American occupation, but it's unlikely he was coordinating it personally. He may have been an inspiration to some of the anti-occupation fighters, but it's also likely there are others who will feel almost liberated and more determined now that he's out of the way and it is clear that they are not stooges for Saddam. One can certainly hope that his capture triggers a reduction in violent resistance, but it is possible it could increase, or change hardly at all.


Then there's the question of what to do with Saddam. President Bush and the Iraqi Governing Council have said there will be a trial of some sort, and the IGC last week announced a framework (at least on paper) for tribunals to try Iraqis accused of various crimes. Whether the IGC has any real legitimacy among the Iraqi people and whether the remnants of the Iraqi judicial system hardly an exemplar of independence after more than three decades of dictatorial rule even has the means to undertake a trial of this magnitude are not easy questions.

As I see it, after talking with several people with some expertise in such matters and reading a lot, there are three basic options, each of which could involve numerous variations. There's the Iraqi option, perhaps with assistance from the United States (especially in terms of keeping the defendant safe from potential revenge seekers and perhaps with participation from other Muslim countries. There's the "coalition" option trying him under the auspices of the coalition of countries that helped the United States in the invasion and occupation. And there's the international option, trying him in a forum similar to the war crimes trials of former Rwandan and Yugoslavian alleged war criminals (including former Serbian dictator Slobodan Milosevic), perhaps at the Hague, perhaps elsewhere, probably under the supervision of the UN.

I'm ruling out for now although perhaps I shouldn't just yet the possibility of trying Saddam in US military or civilian courts. Earlier this year Pierre-Richard Prosper, the State Department's ambassador-at-large for war crimes, said the U.S. reserved the right to conduct its own trials of Iraqis. The State Department at one time had a fairly elaborate plan working with Iraqi courts as a first resort but reserving trials in US courts as an option but that plan seems to have fallen to Pentagon-State Department turf wars. Using US courts might work for some Iraqis accused of war crimes or other crimes, but for Saddam Hussein it would seem utterly inappropriate even though the accused might well have a better chance of presenting a case fairly in a US court than in an Iraqi court.

All of these options have pluses and minuses


I talked with Laurence Rothenberg, an international lawyer who is a fellow at the center for Strategic and International Studies. He noted the possible advantages of an Iraqi-based model. Saddam Hussein did commit most of his crimes against other Iraqis, and there could be a strong sense of justice obtained among the Iraqi people if an Iraqi court tried him. A trial could also serve as something of a transition to, or test of, the kind of political independence everybody claims to favor.

But there could be technical and logistical problems that would almost certainly require outside help. Keeping Saddam safe from a vengeful assassin would likely fall to the United States, as would other security matters like protecting witnesses, at whatever site is chosen. There's a serious question as to whether there are any judges in Iraq with enough of a reputation for impartiality and fairness to command respect from the Iraqi people to conduct such a complex trial most of the 700 judges in Iraq have handled essentially local crimes of various sorts, and all are compromised to some extent by having been part of the old regime.

The IGC blueprint envisions bringing in judges from other Muslim and Arab countries, and perhaps even a non-Muslim jurist of international standing and reputation, but as an option, not necessarily as a mandate. That might increase credibility, but it might not increase it enough to gain the support of the vaunted "international community." Even if it were conducted with scrupulous fairness, an Iraqi-run trial would be viewed by some as "victor's justice."

Mr. Rothenberg also noted that some of the best potential charges that might be brought against Saddam genocide, war crimes are international rather than domestic in character. A trial conducted by Iraqis might not bring out as many aspects of the nature of Saddam's regime as one might hope. The Iraqis might not have the capacity to conduct a trial on some of the more egregious offenses.

Lurking behind all this discussion, of course, is the fact that the Iraqi Governing Council is hardly a duly constituted sovereign government. Although it has demonstrated occasional independence (along with occasional general fecklessness), it is a creature of the US occupying army. It might not have the credibility among the Iraqi people to conduct a trial of this magnitude without being seen as a tool of the United States.


The UN, various human rights groups and most Democratic contenders for the presidency talk of an international tribunal in which a broad array of governments and jurists, perhaps under the auspices ultimately of the UN, would participate, although the details of what kind of tribunal are extremely vague at this point. As James Dobbins, who was a US special envoy who supervised "nation-building" efforts in Haiti, Somalia, Bosnia, Kosovo and Afghanistan and now works for the Rand Corp., noted to me, however, the trial of Slobodan Milosevic in the Hague, for example, has been inordinately expensive and time-consuming.

Slobodan Milosevic's trial has now been underway for about two years and it is expected to continue for another two years. Former U.S. Gen. Wesley Clark, now a presidential candidate, has been called to testify at the trial just this week, and other U.S. officials could be called in the future. Milosevic has vowed to call former President Clinton as a witness when the trial moves to the defense phase.

An international trial would afford the defendant every opportunity to make a case, and every "i" would be dotted and every "t" crossed about 20 times. That would probably take care of perceptions of fairness, but other parties might not be all that interested in giving Saddam a chance to grandstand and to explain how his dictatorship was supported, at various times, by the United States, France, Russia, Syria, Jordan and others.

There's also the question of whether an international trial would give Iraqis any sense of justice. Both Rwanda and countries in the former Yugoslavia have been less than happy about the trials in the faraway Hague, Mr. Rothenberg pointed out to me.


A crucially important aspect of a trial, wherever and under whatever auspices it is held, is that it be perceived by a wide range of audiences as being fair. That would seem to rule out either a U.S. or a U.S./Coalition-run trial (even though, in fact, such a trial might actually be fairer and more respectful of due process than an Iraqi trial). As James Dobbins put it to me, such a trial would be perceived to be and would be an example of "victor's justice." (An Iraqi trial, of course, could be perceived that way too.)

Finally for now there's the question of the death penalty. The "international community" (which really means Western Europe) generally regards the death penalty as beyond the pale although some wouldn't object if lesser breeds imposed it. So an international trial would almost certainly not have the death penalty as an option.

But Muslim law generally includes the death penalty as an option, sometimes for crimes most Westerners consider relatively minor. Laurence Rothenberg suggested to me that a decree from Western Europe that a Muslim country cannot impose the death penalty could be viewed in some quarters as a brand of neo-colonialism. An Iraqi court would probably have the option, although not necessarily the mandate, of employing the death penalty. An American or coalition court would as well. At any rate, the issue will be intensely controversial.

In short, while one can see the possibility of an acceptable forum in which to try Saddam Hussein being worked out, every option has serious drawbacks. The upshot could be more confusion and resentment rather than the kind of decisive closing of a sad episode in Iraqi history that most of us hope will happen.

– Alan Bock

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Alan Bock is Senior Essayist at the Orange County Register and a weekly columnist for WorldNetDaily. He is the author of Ambush at Ruby Ridge (Putnam-Berkley, 1995). He is also author of the new book Waiting to Inhale: The Politics of Medical Marijuana (Seven Locks Press). His exclusive column appears every Tuesday on

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