The shock-and-awe campaign in Iraq demonstrated America's military prowess; the tens of billions of dollars in appropriation money for the reconstruction shows off America's economic power. The capture of Saddam Hussein by the US forces provides an opportunity to now showcase American justice. No other country can boast an equally on-the-ready legal and judicial infrastructure and experience to provide an open, speedy and fair trial of Saddam Hussein.
There is precedent to guide us. On December 20, 1989, the former President Bush ordered some 27,000 US troops into Panama to arrest Manuel Noriega, the one time US ally gone bad. He surrendered unceremoniously at the Vatican Embassy in January and was flown to Miami to face trial for a variety of charges under US law, for which he received a 30-year sentence. That proceeding, however, did not impair the Panamanian government's own prosecution and conviction of Noriega in absentia. Similarly, while the US trial of Saddam is on-going, the Iraqis can proceed with their trial of Saddam in absentia, while an international court can look into his crimes against humanity.
A US warrant should issue for the arrest of Saddam to stand trial for the crimes committed by his government against the citizens of the United States, for some of which the death penalty is also available as punishment. On the basis of an already available body of evidence, in the minimum, four areas of indictment should be explored:
1. The attempted murder of the former president Bush in April 1993 while he was visiting Kuwait is well documented by the US and there is clear and convincing evidence to pin responsibility for that assassination plot on Saddam Hussein and his government.
2. The Iraqi mistreatment of the US prisoners of war, men and women, during the 1991 Gulf War in violation of the Geneva Convention is well documented and the accounts of the inhumane ordeal suffered by the likes of the former Navy pilot Robert Wetzel and Army Specialist Melissa Coleman provide powerful testimony.
3. The evidence of the role of the Iraqi government in the bombing of the World Trade Center in February 1993 is substantial and Saddam Hussein should be tried for the ensuing murders, injuries and destruction of property.
4. The Iraqi government's support for Arab organizations that conducted acts of terror in Israel is a matter of Iraqi declarations and sufficient documentation. This may well prove the Iraqi leader's responsibility for the deaths and injuries suffered by American citizens in consequence of such acts of terror.
Saddam Hussein is not a common criminal; he was also a leader of a country and as such he was also a witness to or participant in the events of the last thirty years in and around the Persian Gulf region. As such, it is imperative that he be given a forum for providing his thinking on some of the larger regional mysteries, such as his reason for attacking Iran in 1980, or miscalculating America's position with respect to Iraq's claim to Kuwait in 1990.
Unfortunately, far too often, the repositories of information about contemporary history, perish all too soon in the throes of revolutionary justice meted by a new order animated by vengeance. Ours in Iraq should be the victor's justice, one which requires some semblance of order and due process, for propaganda's sake if nothing else.
The trial of Saddam in the US for violation of US laws will serve a variety of other proposes as well. His trial in the US can begin shortly. The Iraqis will thus gain some badly-needed time and perspective in order to develop a viable and credible system of justice to deal with this prickly defendant. The circus-like and prejudicial atmosphere that is likely to imbue the proceedings in Iraq will be averted by his absence from the jurisdiction. Mob vengeance will be averted. His right to call former and present US officials as witnesses, such as in the case of an international tribunal, will be curbed under the US rules of procedure. Foreign claims and briefs against him, from countries like Iran, Israel, Kuwait, Lebanon and Saudi Arabia — and even Iraq — can be addressed against him here and with efficiency.
This is no time for the US to pass the buck to an imperfect and inadequate Iraqi judiciary. For the moment, it is time for the US to go first, again.
Author
Guive Mirfendereski practices law in Massachusetts (JD, Boston College Law School, 1988). His latest book is A Diplomatic History of the Caspian Sea: Treaties, Diaries, and Other Stories (New York and London: Palgrave 2001)
