Abdallah El-Ashaal* examines the likely course of the trial of Saddam Hussein On Sunday, 14 December 2003, the US announced that its forces in Iraq had captured former president Saddam Hussein. That evening, in a statement to the nation, Bush declared that with this arrest Washington had completed the liberation of the people of Iraq. They no longer had to fear the Baath Party and its former leaders. However, the ensnarement of Saddam, if it is truly him, has raised a number of questions, the foremost of which concerns timing. One cannot help but wonder whether Saddam had been captured some time ago and that the announcement, surrounded by enormous fanfare and all the attention-riveting effects that US spectacle fabricators excel in producing, was delayed to serve specific objectives. These objectives are purely American. The most obvious is to raise the morale of the occupying army which, having plummeted to levels reminiscent of the Vietnam era, has become one of the pivotal factors upon which resides Washington's decision to stay in or leave Iraq. Another is to raise Bush's popularity ratings as the US enters election year. The US administration is also keen to drive home to the US public and the world the impression that Washington is still in command of the campaign for global freedom, announced by Bush in a speech of 6 November 2003. Its presence in Iraq is not motivated, so the subtext runs, by narrow ambitions and short term gains. Its might and prestige are still intact. Clearly, Arab leaders are intended to receive the same message: Saddam's is the fate of anyone who attempts to stand in the way of the tide of "democracy", ie the American way, which is supposed to sweep across the rest of the Arab world even before any Iraqi democratic model has appeared to show the way. It took no time at all for the Arab public to realise that the news of the capture of Saddam had ramifications beyond Washington's immediate aims. Some have suggested that Saddam's arrest was a purely routine matter, now that the regime and its master have been consigned to history, which alone has the capacity to judge him coolly and rationally. Others believe Saddam's capture raises new and fundamental questions. The first and most important is Saddam's legal status and the bearing this has on the greater issue of the transfer of sovereignty to the Iraqi people and the end of the occupation. A second question stems directly from the first and pertains to the fate of the Iraqi resistance following the arrest of Saddam, and the implications of this for the future of Iraq as a whole. The future of the resistance and the future of Iraq are not the same thing. Resistance is not an aim in and of itself, but rather a means to an end. It is, therefore, important to bear in mind the distinction between the fate of the occupation and the fate of national sovereignty, security, unity and the territorial integrity of Iraq, all of which grow increasingly vulnerable the longer the occupation continues. In statements following the arrest of Saddam the US has remained cautious on the subject of the resistance. It has long attributed the violence in Iraq not to patriotic fervour in pursuit of the aspiration of liberation but to the "remnants of the regime". Washington has been very keen to cover itself in the event that developments do not bear out this spin. Spokespersons have been quick to stress that Saddam's capture may not bring an immediate end to the resistance but that it will cause the resistance fighters to despair and fall into disarray, an assertion that, curiously, has been reiterated by Arab commentators. In fact, if the resistance does grind to a halt with the occupation intact, the reasons will be purely secondary, since the balance of the resistance versus occupation equation will have been tipped, perhaps irrevocably, in favour of the latter and, perhaps, in favour of the American project for the entire Arab world. From this perspective, then, what is the legal status of Saddam Hussein? Opinion on this issue so far appears sharply divided. One camp clearly seeks to bring not an individual but an entire regime and, by extension, the current Arab order, to trial. The opposing camp insists that the trial should stick as strictly as possible to the appropriate legal procedures so as not to be transformed into a courtroom circus. It must be remembered that until the occupation of Baghdad and the fall of his regime Saddam Hussein was the president of the independent republic of Iraq and that the US was the country that had openly declared its intention to topple his regime and embarked upon the campaign that brought this about. That Washington homed its sights on this country to the exclusion of all others was an example of brutality no less than that exercised by Saddam's regime. The Arabs were caught between their own repulsion for that regime and their desire to change it, and their aversion to Washington's drive to change it through the illegitimate recourse to force. However, Washington's determination backed by its enormous propaganda thrust played on the Arabs' confusion and specifically upon the Iraqis' dreams to be freed from a cruel and tyrannical dictator. For some this end justified any means, even those adopted by an occupying power. In the passion to accomplish what may be regarded as a noble humanitarian end, it was easy to make light of the fact that the end could never justify the illegitimate use of force under contemporary international law. Feelings were thus jumbled between reconciliation to an American military expedition against Iraq and simultaneous sympathy for the resistance and remorse over the fall of Baghdad. In the end, however, the Iraqi people rejoiced at the fall of that regime, regretting only that it had taken a foreign power to make it happen. Still, regardless of the jubilation of the Iraqi people at the fall of Saddam, the invasion of Iraq and the removal of his regime took place outside the framework of law and the authority that is currently in place in Baghdad is also illegitimate. These facts are fundamental to the legal dilemmas in which the US currently finds itself. Following Saddam's arrest and before Washington determined his status, the Iraqi ruling council, the creature and mouthpiece of the occupation, declared that the former Iraqi president would be tried before an Iraqi court. But, on the evening of 15 December, Bush announced that Saddam would be tried publicly in an international court. Regardless of whether this indicates that Washington wants to retain control over the situation, the problem is that the US does not have the right to determine Saddam's fate or, for that matter, to hold Saddam as a prisoner of war. There is an important distinction to be drawn between the humanitarian treatment of a prisoner of war and the actual status of prisoners of war. A prisoner of war is a combatant taken captive by a warring party in the course of military operations, interned in the theatre of operations as long as the place of internment does not threaten his life, and released upon the cessation of military operations, which in the case of Iraq occurred officially on 9 April 2003, in accordance with Bush's announcement to that effect. In addition, a POW may only be prosecuted for crimes committed on the battlefield. It is difficult to regard Saddam's resistance to the invasion and subsequent occupation as a war crime, especially given that the illegitimacy of both is precisely what legitimises acts of resistance. Washington, therefore, has no legal right to detain or prosecute Saddam or to transfer him out of the country. On the other hand, Saddam's arrest does open the possibility of trying him and other members of his regime for crimes committed against the Iraqi people. However, to ensure that such a trial does not become a pure vendetta or a façade for furthering Washington's policies certain guarantees must be met. Firstly, the trial must take place in Iraq and under Iraqi law, inclusive of all guarantees for an adequate defence. Secondly, there must be international supervision, one element of which would call for a judiciary delegation from the Arab League to ascertain the probity of the procedures and the guarantees for the defence. Thirdly, the charges leveled against the defendant must be punishable under law and substantiated by corroborated evidence as having been committed by the defendant. This is a very ambiguous area in which there are many avenues by which the legal process might be steered into the political domain. The crimes for which Saddam Hussein is prosecutable in Iraq are those perpetrated against the Iraqi people, most notably against the Kurds before 1990 and against both the Kurds and Shi'ites in the early 1990s. As no head of state has the right to abuse his citizens' innate right to life and dignity, Saddam cannot claim immunity on the grounds that he was president at the time these crimes were perpetrated. This principle is upheld both in national and international law and has been upheld in practice in the 1999 ruling of British courts on the case of the extradition of Pinochet. That ruling stated that a plea of immunity against prosecution could not stand in the case of an official guilty of crimes against humanity. Saddam is also guilty of the crimes of aggression against Kuwait, the occupation and annexation of that country, and the theft and plunder of its people's personal and national property. These crimes may be prosecuted in an international court or in a Kuwaiti court if Saddam were to be extradited to that country. The same would apply in the case of Saddam's war crimes against Iran, although Iran's case is weaker since, after all, the US was using Iraq to make war on Iran and there was never an international resolution condemning the Iraqi invasion of Iran, unlike in the case of Kuwait, with regard to which American concerns ensured an unprecedented spate of Security Council resolutions. The Iraqi invasion of Iran was no less illegitimate than its invasion of Kuwait, but the UN, the actions of which are governed by numerous considerations, not least of which is the US position, drew a distinction between the two cases, a distinction made more feasible by the manner in which Iraq compounded its crimes in Kuwait following its invasion. Finally, it is important to distinguish between Saddam Hussein, Noriega in Panama and Milosevic in Yugoslavia. Washington's military intervention in Yugoslavia was part of the NATO campaign in 1991 and it was that country's government that turned its former president over to an international court for crimes committed against the Muslims and Croatians of former Yugoslavia. Noriega was kidnapped from his country and indicted in an American court on violations of US law. As an illegal occupying power in Iraq the US is not legally entitled to turn Saddam over to an international court, nor does it have any grounds to prosecute him for violations of US law. The capture of Saddam must obviously result in a trial. It is difficult to imagine anything but victor's justice, whether the trial is conducted in the US, in which case Washington may be facing a predicament similar to the situation in Guatanamo Bay, or in Iraq with the Ruling Council acting as Washington's façade. Washington may be looking for another Nuremburg: one suspects, however, that it is acutely aware of the differences between a military tribunal staged in Iraq to prosecute members of the Saddam regime and the actual Nuremburg trials. Above all, in the latter case, Germany had been the aggressor and it was part of an alliance that included Japan, which had attacked the US. Perhaps, too, had it not been for Jewish pressure there may never have been a Nuremburg to begin with. The criminal must be brought to justice, but only by means of a fair trial that is not transformed into a political demonstration. More importantly, the arrest and trial of Saddam Hussein must not detract us from the greater issue: the future of Iraq and the Iraqi people. * The writer is a veteran Egyptian diplomat and former assistant to the Foreign Minister.
