Following the dramatic capture of Saddam Hussein at the weekend, international attention turned yesterday to how he will be tried, by whom and with what legal ground rules, including whether the death penalty should apply. At stake in these decisions is the status of the rule of law in Iraq, the need to avoid a show trial dominated by revenge or one imposed by occupying powers, and the central importance of international law and expertise in dealing with war and humanitarian crimes.
President Bush said yesterday the United States will work with the Iraqis "to develop a way to try him that will stand international scrutiny". He believes Iraqis themselves must be centrally involved in any trial, a principle that has widespread support. But there are many problems involved in putting it into practice. After decades of brutal dictatorship there is precious little legal expertise available in Iraq to mount such a trial and conduct the laborious and complex research with documents, witnesses and forensic evidence needed to mount and prove a case. Judges, prosecutors and investigators familiar with the best international legal practice are in short supply. A fair and open trial in which Saddam Hussein faces clear-cut charges and has the opportunity to defend himself will make its own contribution to legitimising democracy and the rule of law in post-Saddam Iraq. It will also help prevent the former dictator becoming a martyr in the eyes of his former supporters.
The best way to ensure international credibility is to draw on the expertise built up in other war crimes trials and by the United Nations Security Council, which has organised and mandated them. Beginning with the Nuremberg trials of Nazi leaders after the second World War this experience has been drawn upon in courts established after the Balkan and Rwandan conflicts. A somewhat different example was in the case of Sierra Leone, where a combination of international and national judges was appointed. The experience has also been drawn upon in preparing the International Criminal Court (ICC), which can try crimes committed after July 1st, 2002.
The United States is not only the principal power occupying Iraq, but has a distinctive approach to many of these issues. Successive administrations have opposed the ICC, and argue that war crimes courts must be strictly circumscribed in scope and timing. The death penalty is still permitted in many of its states, unlike in Europe where rejection of that punishment has become a core value of the EU. The Bush administration's attitudes to the UN Security Council and to international law have been deeply ambiguous throughout the Iraq crisis.
For these reasons Mr Bush's welcome commitment to a process that will stand international scrutiny should be handled very carefully by his administration, if US motives and interests are not to be misinterpreted after Saddam's capture. Full UN involvement, including the appointment of international judges to work with Iraqis in a tribunal, would be the best way to avoid that.