Prosecuting Saddam Hussein

December 19, 2024

A Conversation with Fiona McKay, Director of the International Justice Program at the Lawyers Committee for Human Rights

When do you expect Saddam Hussein will be brought to trial?

FM: Saddam Hussein is likely to be tried by a new Iraqi tribunal, which the Governing Council of Iraq agreed to establish on December 10. It will take a few months, at least, for this tribunal to get up and running.

It seems likely that Saddam Hussein will be tried before an Iraqi special tribunal. Is the Iraqi justice system able to undertake this type of trial?

FM: The Iraqi justice system is going to need a lot of support to undertake a trial of this magnitude. We are talking about a system that has been severely run down over decades of repression under the Hussein regime. To make matters worse, the system has no experience trying these sorts of terrible crimes.

Since the Ba’ath Party came to power in 1968 the system of justice has been eroded in a number of ways. One of the most serious things that happened was that Saddam Hussein set up a whole new layer of security courts, which he depended on to secure his rule. The system the Ba’athists inherited continued to operate, but it atrophied, and often it was bypassed in favor of the security courts. Judges who continued to deliver verdicts under the previous system were often forced to resign if they did not toe the party line.

What is an appropriate role for the international
community to play?

FM: In setting up this tribunal, the Iraqi Governing Council should consider following a model established by Sierra Leone, where the government working in partnership with the UN recently set up a tribunal to try those accused of committing atrocities during the country’s 10-year civil war. In Sierra Leone local judges and courtroom staff work hand in hand with international judges, prosecutors and others.

There are several reasons why this sort of partnership might be beneficial in Iraq.

First, there are serious concerns that the Iraqi justice system, given decades of repression, needs more time to recover before being in a position to take on such an enormous task alone.

In addition to the reasons we have already discussed, we should recognize that in recent years there have been several examples where countries, including the former Yugoslavia, Rwanda, Sierra Leone, Cambodia and others, have tried to deal with the abuses of the past. But what they have found, by and large, is that they are unable to do this effectively without assistance from the international community.

As a result of these efforts, a lot of expertise has been developed in how to mount these sorts of prosecutions and investigations on a large scale. Mistakes have been made and lessons have been learned. If the Iraqi Governing Council does not benefit from this wealth of knowledge and know-how it will be like starting again from the beginning.

Second, in addition to abuses committed against Iraqis, Saddam Hussein is going to have to answer to charges that he committed war crimes during the Iran-Iraq war and the occupation of Kuwait. In fact Iran has already asked for an opportunity to press charges against Saddam Hussein in an international tribunal. These accusations have an international dimension to them that need to be addressed in a tribunal that has a strong international flavor.

Finally, a tribunal that combines Iraqi law and jurists with international law and expertise may have more legitimacy in the eyes of Iraqis and the region. It is important that trials of Saddam Hussein and others don’t come to be perceived as revenge trials. The involvement of international experts will help lend the entire process the legitimacy it needs to be successful.

Don’t Iraqis deserve to play a special role in the prosecution of Saddam Hussein?

FM: Yes. Iraqis are very committed to bringing Saddam Hussein and others who committed crimes as a part of the Ba’ath regime to justice. That is welcome and must be acknowledged. Iraqis should play a central role in these trials. They should take place in Iraq. It would be a mistake to do it otherwise. Experience has shown that local involvement is critical if the trials are to be meaningful to the populations affected and if they are to contribute to the long-term efforts to rebuild the country's justice system.

What charges are Saddam Hussein likely to face?

FM: It seems likely that he will be charged with crimes against humanity, war crimes and possibly genocide as well as violations of certain Iraqi laws such as the squandering of public assets and the abuse of power.

The war crimes charges are likely to stem from abuses in the war with --- Iran (not Iraq) and the conflict with Kuwait. He is also likely to face crimes against humanity charges for attacks on the Kurds and other ethnic minorities, such as the chemical assault on the Kurdish village of Halabja in 1988 that resulted in 5,000 deaths, for brutal and devastating attacks against the Shi'a communities in the south in the early 1990’s, and other major incidents.

How much evidence against Saddam Hussein has been collected?

FM: Literally tons of evidence has been collected over the years, and more has come to light since the Ba'athist regime fell. After the first Iraq war, the U.S. government, working in conjunction with human rights groups, brought home millions of pages of documentation , some of which can be presented in front of the tribunal.

Also, what’s helpful here is that the Ba’ath government kept detailed records on their own dreadful dealings.

How important is it that in trying Saddam Hussein the tribunal adhere to international fair trial standards?

FM: If the trial of Saddam Hussein is successful it will not only result in a conviction, but it will also contribute to the healing process that needs to take place in Iraq and elsewhere. It will send an important signal that the new Iraq will be based on principles of justice, human rights and the rule of law. It will also act as a model for how countries can deal with accountability for past atrocities after emerging from repression. In order for this to happen Iraqis, and others in the region and around the world, must be convinced that the tribunal is acting according to universally accepted principles and is - and is seen to be - fair and impartial. That means Saddam must be allowed to have lawyers and mount a legal defence. Among other things, he must have the opportunity to effectively challenge evidence presented against him and the proceedings must be open and public.

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