December 16, 2003
Captured Now What?
by Alan Bock
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.
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.
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.
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.
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.
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.
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.
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.
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.
of these options have pluses and minuses
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.
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.
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."
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.
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.
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
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.
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.
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.
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.)
– 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.
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.
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.
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