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Past tribunals tell us how Saddam's trial can be carried out legitimately

By Andrew Byrnes and Hilary Charlesworth - posted Tuesday, 30 December 2003

It is not yet clear what type of court will be used to try Saddam Hussein for the atrocities that he and his regime inflicted on the Iraqi people and their neighbours. The US President, George W Bush, has suggested that it will be a primarily Iraqi tribunal, but one that can withstand international scrutiny. What are the options?

Any tribunal must satisfy international standards of impartiality and competence and observe due process. While the defendants must be assured a fair opportunity to present their case, it would be undesirable for a trial to drag on for years or to become a forum for political grandstanding. This is why it must be properly resourced.

One possibility is trial before a national tribunal. The Iraqi Governing Council last week proclaimed a law establishing a special tribunal to try Iraqi nationals who had committed crimes against humanity and war crimes inside or outside Iraq during the Ba'athist period (1968-2003). This tribunal will comprise Iraqi judges and prosecutors (the council may appoint non-Iraqi judges if it considers this necessary). It will be assisted by international experts with a purely advisory role, and may end up a sizeable institution, with dozens of judges carrying out investigative functions, conducting trials and hearing appeals.


The tribunal will apply international law, largely drawn from the Statute of the International Criminal Court, supplemented by reference to Iraqi criminal law. Unlike the ICC, the tribunal will probably have the power to impose the death penalty, a feature that will create controversy in the international community.

It is far from clear that the Iraqi legal community has the necessary expertise for what will be a complex logistical and legal task. It would be sensible to include in the tribunal international judges with expertise in the fields of international criminal and humanitarian law. While a national tribunal would have the advantage of Iraqis judging Iraqis, it is also important that this is not seen as a domestic version of victors' justice.

A second option would be a purely international tribunal. The ICC would be of limited use, since it can deal only with crimes that have occurred since July 1, 2002. Even the crimes allegedly committed during this year's war in Iraq could only be brought before the ICC if the Security Council referred the situation to the court. This is most unlikely, given the antipathy of the US to the ICC and its power to veto any Security Council resolution along those lines.

Another international model is the Nuremberg and Tokyo tribunals set up by the victorious powers after World War II to try German and Japanese war criminals. However, the taint of victors' justice that adheres to them even today suggests that similar tribunals staffed by the occupying powers would lack legitimacy.

A further, arguably better, option would be a mixed tribunal of some sort, similar to the court recently established after an agreement between the UN and Sierra Leone. This court, unlike the UN ad hoc tribunals in The Hague, sits in the country where the atrocities occurred, comprises international and national judges and prosecutors, and applies international and local law.

This would balance the interests of the community that has borne the brunt of the human rights abuses and those of the international community in ensuring that those who have threatened international peace and security are brought to justice; it is also likely to enjoy both international and national legitimacy.


All of these possibilities are focused on the atrocities of the Ba'athist regime. It is also important that the allegations of war crimes made against coalition forces during the invasion of Iraq are openly and fairly investigated and dealt with, even though they may seem minor when viewed against Saddam's record. This is not to fall into the trap of moral equivalence but simply to assert the rule of law.

The opportunity to put Saddam on trial for the atrocities committed over the years is profoundly significant. By learning the lessons of past tribunals, we have the opportunity to respond to barbarity with justice, dispensed in accordance with the international rule of law.

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This article was previously published by the Sydney Morning Herald on December 17, 2003.

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About the Authors

Andrew Byrnes is a professor of international law at the Centre for International and Public Law, Faculty of Law, the Australian National University.

Professor Hilary Charlesworth is Director of the Centre for International and Public Law at the Australian National University.

Other articles by these Authors

All articles by Andrew Byrnes
All articles by Hilary Charlesworth
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International Criminal Court
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