Saddam's trial: U.S. revenge vs. international mechanism

Saddam's trial: U.S. revenge vs. international mechanism

Lina A. Alexandra, Researcher, Centre for International
Relations Studies, University of Indonesia, Jakarta

The capture of Saddam Hussein, the U.S. government's most
wanted person, at Tikrit yesterday made headlines across the
world. After a nine-month hunt by the coalition forces, Saddam
was arrested alive. A DNA test has confirmed that the individual
in detention is the real Saddam, allaying suspicions that he was
another counterfeit Saddam.

The press briefing delivered by U.S. administrator Paul Bremer
and U.S. commander Lt. Gen. Ricardo Sanchez has prompted many
reactions, especially from the people of Iraq. Many expressed
their jubilation by shooting their guns into the air. Most hope
that the capture of Saddam will mean a new future for Iraq.

The first action that must be taken after Saddam's capture, as
was pointed out by Bremer, is that Saddam must be brought to
justice. The question is, who has the legal authority to bring
Saddam to trial? In order to answer this question, we should
first decide upon those charges that would be brought against
Saddam.

There are two alternatives. The first alternative is the
justification used by the U.S. to attack Iraq, that Iraq had
weapons of mass destruction (WMD). The second alternative is a
charge of gross human rights violations.

The first alternative is not valid, since the UN inspection
team has not found any weapons of mass destruction in Iraq. The
secondary justification implying a link between Saddam and the
al-Qaeda terrorist network has also not been proven yet. This
alternative would not bring Saddam to trial, since there is no
evidence to support the charge.

The second alternative, of crimes against humanity, could
bring Saddam to trial. During his rule, Saddam killed many people
of ethnic minorities, especially the Kurdish ethnic minority.
This is genocide. He is definitely a tyrant who denied the
freedom and violated the rights of the Iraqi people. This second
alternative appears more valid in bringing Saddam to justice.

But the question remains unanswered still. Who should take
responsibility?

Bremer said Saddam would be judged in Iraq, but did not
indicate who should be the judge. Iraq is still an independent
nation and has sovereign rights.

Iraq's sovereignty is still being recognized by the
international system, but according to this right, the Iraqi
people have the legal right to bring Saddam to justice. But, as
we know, the real situation in Iraq now does not make it possible
for a trial to be held. Instability is everywhere in Iraq and a
new Iraqi government has not yet been established.

Other states, including the U.S., do not have the right to
bring Saddam to trial. In the international system, every state
has equal sovereignty. Intervention in the internal affairs of
one state by another is a violation of a state's sovereignty.

Saddam was the former, legally recognized leader of Iraq.
Thus, other governments' bringing Saddam to trial would be
tantamount to violating Iraq's sovereignty as an independent
state.

The U.S., in the first place, violated Iraqi sovereignty by
attacking the country without any legal justifications. If the
U.S. tries Saddam, once again, the sovereignty of Iraq would be
violated.

The international community has a responsibility to prevent
this from happening. Therefore, the legal jurisdiction must be
international, as opposed to national, and the only legal
authority that could hold the trial is an International Criminal
Tribunal acting under a UN mandate and recognized by all states.

It will not be an easy road, but is a possible one, as we saw
with the trials of World War II war criminals in Nuremberg and
Tokyo.

A recent example particularly relevant to the Iraq case -- of
a ruler violating the rights of the people -- is Yugoslavia,
which brought Slobodan Milosevic to justice at the International
Criminal Tribunal for Former Yugoslavia (ICTY). Milosevic was
charged for his policy of genocide against the Albanian ethnic
minority population in Kosovo.

Genocide was also committed in Rwanda, and justice was meted
out by the International Criminal Tribunal for Rwanda (ICTR).

From these two cases, we know that genocide is a gross
violation of human rights that is recognized as an international
crime. It stands to reason that violators could and should be
brought to justice through an international mechanism.

There are at least four charges that should be laid against
Saddam: one, gross violations of international humanitarian law;
two, violating the 1949 Geneva Conventions, such as willful
killing, torture or inhuman treatment; three, genocide; and
lastly, crimes against humanity.

Despite all these charges, Saddam's right -- as the accused --
to legal representation must also be met in order to guarantee a
fair trial.

Finally, if the U.S. is considered to be the winning side of
the war, the future of Iraq will be dependent on the U.S.
government. Despite the suspicion that Saddam is behind the
guerrilla attacks on the coalition forces, the U.S. government
should overcome the temptation to use force and prosecute without
a fair trial to claim revenge.

It would be a hard choice for the U.S. government, since the
war in Iraq has cost a lot of money and the lives of its
soldiers. But this is where the real struggle for the U.S.
begins, that is, in regards the future of the country and whether
it wants to be a hated imperialist power or a wise superpower and
cede authority to the international mechanism.