Global Policy Forum

Hussein's Trial: Humanitarian Laws

Washington Post
December 16, 2003

What will be the fate of the former Iraqi dictator? The capture of Saddam Hussein leads to many questions of how he will face trial for war crimes and genocide. Where will the trial take place and who will lead the case against him? Should he be tried under U.S. custody or by international courts? What is the role of the U.N. and what international humanitarian laws apply to Hussein?

James Paul, executive director of the Global Policy Forum, discusses the role of the U.S., the U.N. and international humanitarian law in the trial of Saddam Hussein.

Paul worked previously as a writer and consultant with projects for Human Rights Watch, Oxford University Press and Physicians for Human Rights. From 1976 to 1989, he worked at the Middle East Research & Information Project (MERIP), where he was a member of the Editorial Committee of Middle East Report magazine. While at MERIP, he won the World Hunger Media Award (1987) and he received a "Peacemaker" award by the Nuclear Age Peace Foundation in 1996. He is author of hundreds of articles and reviews in academic journals, magazines and other print media. From 1995-1999, he served as the representative of the International Federation of Human Rights at UN headquarters. From 1995 to 2002, he served as Chair of the NGO Working Group on the Security Council, of which he is now Secretary.

Editor's Note: moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

James Paul: There has been increasing international support for the legal responsibility of government leaders for criminal acts under international law. The capture and pending trial of Saddam Hussein offers an important case of this type. A tyrannical dictator will be brought to justice, but what kind of justice will it be? A victor's show-trial or a serious step in the strengthening of international law? Washington seems keen to score points with the US electorate, but it is clear that the Hussein case will fall far short of a model of justice.

Washington, D.C.: Since there is no Iraqi constitution, and therefor no legal system, where can the Iraqis find sufficiently trained, non-Sadam legal experts to conduct his trial? The US cannot do it alone. The only other alternative seems to be an International Tribunal from (or in) The Hague, which the Bush administration opposes vehemently. Your thoughts?

James Paul: You are correct in your concern about a legal process in Iraq. Amnesty International has raised a number of questions in its recent press release on this topic. Not only the question of trained jurists but also the problem of a lack of democratic legal tradition. However, the International Criminal Court cannot take charge of the matter, because its jurisdiction does not cover crimes committed before the Court came into force and furthermore it must cede to national jurisdictions when they take up a case. The best solution would be a tribunal set up under UN auspices, of the type established for Yugoslavia and Rwanda. The Bush administration is unlikely, though, to agree to UN involvement. So we are likely to see a proceding that falls well short of desireable norms. Perhaps a strong international call for a special UN tribunal would persuade Washington to change its mind. Much will depend on the situation in Iraq in the weeks ahead.

Wheaton, Md.: Now that Saddam Hussein is in US costody, should other terrorist leaders like Assad, Arafat and Kadafi be worried and be less likely to confront the US?

James Paul: The movement for international criminal responsibility of leaders should give pause to all leaders who commit criminal acts. Mr. Ariel Sharon has some worries of this kind, I believe.

Somewhere, USA - Concerned American: I have a question for you. Maybe it's a rant. During the "war" part of this war, the White House was furious that photographs of captured soldiers (POWs) were broadcast over the news media, in violation of international law. Something about dignity and humiliation. Er, how is the picture of Saddam Hussen's dental exam not a humiliating photograph of a captured POW? Why is this being broadcast over the news media? Where is the outrage at this hypocrisy? Or is it just different because we call ourselves the good guys? Thank you.

James Paul: You are right to call attention to this use of footage of Saddam, that is generally considered to be "humiliation" of a prisoner under the Geneva convention. This is probably not the most serious abuse that the prisoner may be subject to, but it bodes badly for what may be to come. After all, Washington has brought us Guantanomo and the Patriot Act, so their commitment to the rule of law is not great.

Nederland, Colo.: Since the huge majority of victims were Iraqi, must not the trial be by an authentic, autonomous Iraqi government? Moreover, since everyone knows (but politely omits) that the USA materially supported Saddam until 1990, is there not a potential conflict of interest if we influence the trial? Thank you.

James Paul: Precisely! What if Saddam begins to testify about how the CIA supported the first Baathist coup (which is very well-known among historians), about how he received important military support during the 1980s from many currently in high office and so on? There will certainly be a strong preference in Washington for a trial that does not give him such opportunities. That means that a US-dominated trial will be automatically suspect by the international community.But as I said in response to an earlier question, I think a purely Iraqi trial may not work under present circumstances. I am referring, of course, not just to the trial of Saddam, but also of his top cohorts as well. I see the need for either an international tribunal or an Iraqi court with major international assistance, probably from the UN.

Washington, D.C.: How do you feel about the past performance of existing international courts that operate under UN auspices? Do you rate the UN Rwanda tribunal a success, securing as it did fewer than 10 convictions in as many years and spending one billion dollars?

James Paul: You are right to raise questions about those special tribunals, that were slow, expensive and did not always result in good justice. But we have to realize that they were experiments along the road towards a more vigorous system of international criminal law. The International Criminal Court will be permanent and should work much better. But international law faces a number of problems, including the abssence of a sovereign authority, with a police force, standing judiciary, and so on. So, on balance, I favor an international tribunal for Iraq. Such a tribunal would be far superior to a US-dominated court, that would also doubtless be very expensive and far less even-handed. Should Halliburton be put in charge?

Bowie, Md.: Would "selective enforcement" be a legally relevant defense in his case? Could he claim that there are a lot of other despots no worse than he is and the U.S. didn't go after them?

James Paul: In a sense, all justice involves a certain degree of selective enforcement and this kind of trial is notoriously prone to selecting only those who have been defeated and leaving untouched the victors with their known injustices. Nuremberg did not look into the firebombing of civilian targets by Allied leaders and commanders, for instance. I would doubt that Saddam would be allowed to make this defense, but if he is allowed to speak at trial he could certainly bring up all kinds of embarrassing facts that would, in a sense, put Bush and Co. on trial.

Greenville, S.C.: If the U.S. commitment to the rule of law is not great, how would you evaluate the commitment of Russia, France, Britain and China? How would this bode for the fairness of the trial of Saddam if we internationalize the process.

James Paul: Alas, you are right. The rule of law is not strong in our world. But I think that an international process is most likely to avoid the strong bias introduced by US interests in Iraq. It is true, however, that the nations you mention (and others) also have interests in Iraq and dealings in the past with Saddam. So no solution will be free of influence and distortions. Even the most respected systems of justice are not immune from influences, as legal scholars are commonly pointing out.

Iraq by way of Virginia: I didn't hear this much fuss about the "rights" of the Iraqi population for the last 30+ years? Iraqis DID have a legal system before Saddam, during Saddam, and will have one after Saddam. We are not morons for God's sake and a very educated people. You can call this trial anything you want, it doesn't matter, this man is a criminal and deserves everything he gets. Sick of people talking about Saddam's rights! He has no rights! He lost those rights by proving over and over the Iraqi people were just cattle to him.

James Paul: Iraqis and all of us are indignant at Saddam's crimes, but rights and justice are due to even the worst criminals. Lynch mobs will not help towards a stable system of democracy and justice in Iraq.

Durham, N.C.: If the special court contemplated by the U.S. in Iraq is created substantially along the lines of the Special Court in Sierra Leone, will it face similar problems in compelling or otherwise receiving legal assistance (evidence, extradition, etc.) from neighboring countries? Will the lack of U.N. involvement exacerbate this problem?

James Paul: You are right in pointing to the need for international support for such a tribunal. If it is seen as a US-dominated court, it may lack the capacity to carry out justice, to summon witnesses and so on. The special tribunals offer evidence, as you suggest, that it is not easy to go this route.

Mt. Lebanon, Pa.: What do the protocols the U.S. has SIGNED and PLEDGED to adhere to with the U.N. and the international community specifically say about the arrest, trial, and punishment to be mete out to foreign leaders who are captured in war by signatories to these documents? If the U.S. stumbles or drags its feet on following these conventions and instruments to the letter of these international laws, does that undercut any prosecution of Saddam Hussein by U.N. or World Court sanctioned and approved judicial proceedings? If so, how? Has the U.S. already prejudiced its own case in the handling and treatment of Prisoner of War -as stated by Donald Rumsfeld] Saddam Hussein already? Thanks much. HLB

James Paul: I would call your attention to the very interesting statement by Amnesty International, published yesterday, December 15 under the title "Iraq: Only justice can serve the future of Iraq." In it, Amnesty speaks about the international legal basis for the situation, including principally the Geneva Conventions, which govern the treatment of prisoners of war. Some high US military officers have expressed concern at the breaches of these laws by the Bush administration, since it could lead to future breaches by those who have captured US soldiers. We can be sure that the human rights organizations, legal scholars and others concerned will call attention to the lapses in the treatment of Saddam. Note, though, that not much has been said so far about the treatment of the other top regime figures, who have been held for months. Ever since 9/11, the US government (and others, too) have put forward the view that existing laws are too lenient in their protections of prisoners/accused persons. We are in a very dangerous time for the rule of law and the treatment of Saddam by Washington will probably be symptomatic of this.

Dammam, Saudi Arabia: You wanted to talk about Saddam Hussain trial on humantarian law for his crimes and genocide.You are surving the very noble cause for the whole humanity. But my question with you is that when Saddam was throwing chemical gasses on Kurds people where were American administration. The whole international community knows that America was suppoting Saddam against Iran and the the same period he was crushing Kurds. America was silent because Saddam was serving the American cause. America is a co-partner with Saddam in his crimes and genocide. I need your fair and honest views on the above.

James Paul: A strong case can be made for US government complicity with and support for Saddam, going all the way back to his early days with the Baathist assasination squad, through the bloody coups and on into the war against Iran and the terrible operations against the Kurds. The evidence for these things is well-established by responsible scholars. So a trial of Saddam will be very cynical and the US managers of the trial will have to face the challenge of avoiding these issues. We have a revealing photo on the Global Policy Forum web site ( showing Rumsfeld in the '80's in Baghdad, warmly greeting his friend Saddam Hussein. Can they erase all these facts as they bring the monster to trial. Not easy!

Chicago Ill.: I'm bothered by the contrast between Saddam Hussein's likely fate and that of the DoD's "enemy combatants." Could you please explain why, for example, an Australian citizen taken into custody in Afghanistan and an American citizen taken into custody in the U.S. can be held indefinitely and deprived of any and all due process rights, while Saddam seems destined to get some type of trial. Thanks.

James Paul: You are right to raise this question! Saddam may have a slightly better chance of getting decent treatment and a fair trial than those you refer to because they are not well-known and tend to be "forgotton." But Saddam's fate in US government hands is not settled. He may face mistreatment, torture or even death under certain circumstances. The cases you cite show how far the US government has departed from the rule of law and democratic pratice -- in the name of saving democracy and freedom.

Oceanside, Calif.: You're right that international law faces problems such as a police force, standing judiciary, etc. Here's a proposal: what if human rights advocacy groups had their own specially-trained paramilitaries, available to achieve objectives that are good for most of humanity (e.g. capturing Saddam) without violating anybody's human rights? Otherwise, it seems to me that much of this talk about humanitarian law is utopian baloney.

James Paul: I don't think that Amnesty has any wish to have an army or a police force! But the point you raise is an important one -- namely, that international law, lacking sovereign authority, does not have the "teeth" of domestic law. Maybe that tells us that we should build stronger institutions at the global level to enforce law and bring criminals to justice. But Washington does not want to support such insitutions, like the ICC, that would take us a few steps in the right direction. We can well imagine why there is a fear that they, too, might be called to the dock from criminal offenses!

Washington, D.C.: In the UN court at the Hague, there is no right to confront accusers, who in many cases are anonymous and cannot be cross examined. This is very different from criminal court procedure in most Western systems. Indeed, it is more akin to south american military tribunals.

James Paul: The new International Criminal Court will provide a much stronger legal structure than the ad hoc tribunals. It has been carefully negotiated over several years and provides a mixture of different legal systems, but procedures that we can be comfortable with. It is the dictators that want us to forget about these initiatives.

James Paul: That's all folks! I enjoyed the questions and thank you all for participating.


More Articles on International Law Aspects of the War and Occupation

FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.


FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.