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.