Commentary: Justice for Saddam must include full account of crimes
12/19/2003 News media contact: Tim Tanton · (615) 742-5470 · Nashville, Tenn. A photograph of the Rev. Donald Sensing is available. For a related commentary, see UMNS #598. A UMNS Commentary
By the Rev. Donald Sensing*
When Saddam Hussein murdered his way into power in 1979, he
set the tone for more than two decades of brutal rule. He launched an
aggressive war against Iran that took more than a million lives,
committed genocide against Iraqi Kurds and Marsh Arabs, and funded and
trained international terrorists. He tortured or killed millions of
Iraqi men, women and children, drove 4 million of them into exile and
invaded Kuwait.
Since Saddam's capture, commentary has focused on
who should put him on trial. I strongly believe this is the wrong
question. The primary question is, "What constitutes justice, and how
shall it best be achieved?"
Rendering a judicial verdict against
Saddam is not the most important goal because his murderous guilt cannot
be rationally questioned. In even the fairest trial possible, "guilty"
is the foregone conclusion, at least for his major offenses. Any other
verdict would mock justice rather than uphold it.
The real value
of a judicial proceeding against Saddam is to render a fair, accurate,
public accounting of the terror of his regime.
Fully exposing
Saddam's deeds to the Iraqi people and the world is the point. Enabling
the Iraqi people to face their horrors so they may grow out of them is
the point. Discovering the truth of Saddam's ties to nations and
international agencies that propped him up is the point.
Saddam's
trial "must be an opportunity to educate the nation and make the
psychological transformation from the past to the future," said Laith
Kubba, a prominent Iraqi expatriate and senior program officer for the
National Endowment for Democracy. "What is important in these trials is
not to put on trial the person of Saddam Hussein, but his deeds."
Only
by learning the full truth, vetted to judicial standard, can Iraqis
have a real hope of transcending Saddam. Only by such discovery can
there be a hope that the United States, other nations and international
agencies never repeat their errors or sins that left Saddam in power for
so long, at the cost of so much blood. So the foremost consideration of
a trial is whose jurisdiction can best achieve these just ends.
The
United Nations' International Criminal Court cannot try crimes
committed before it was created on July 1, 2002. Thus, it can't try
Saddam because his crimes predate the court. In my view, that leaves
three possible venues, in order from least to most desirable:
1.
American law permits courts-martial or federal trials of foreign
nationals who commit war crimes against U.S. forces, but this
jurisdiction is far too limited for Saddam's offenses. Saddam is too
important for it, anyway. Such a court would have no legitimacy among
nations, especially in Arab countries, including Iraq. President Bush's
statements since Saddam's capture make it clear that this option is not
on the table.
2. A U.N.-sponsored International Criminal Tribunal
could be formed of the same sort that is now trying former Yugoslav
strongman Slobodan Milosevic. There are serious shortcomings with this
option. No authority exists for an Iraq ICT. The U.N. Security Council
would have to establish one, but the council has repeatedly rejected
forming an Iraq ICT for many years.
Arabs generally mistrust U.N.
courts (12 Arab states have not ratified the ICC, citing concerns about
its rules and procedures) and would regard an ICT as little better than
an American court. Moreover, as CNN legal analyst Phil Carter noted,
such a tribunal would "be criticized as 'victor's justice,' despite its
international nature."
A U.N. tribunal would be widely rejected
by Iraqis, who generally hold the United Nations in deep contempt for
propping Saddam up for so long. Insistence that Saddam must be tried
only by a U.N. court smacks of Western elitism, disregarding the
legitimate claims of Iraqis and dismissing their competence.
Even
so, a U.N.-sponsored court may be adequate to the task if - and only if
- it sits in Baghdad, is fully public and its judges are majority
Iraqi.
3. Special Iraqi tribunal courts, established by the Iraq
Governing Council before Saddam's capture, are a more realistic option.
They derive their legal theory from existing Iraqi law and the code of
the ICC. The tribunals' rules of evidence and procedures spring from
Iraqi common law and American law. International advisers and
international judges are allowed. An Iraqi tribunal will permit Saddam
to mount a vigorous defense. Members of Iraq's Governing Council have
said that Saddam's trial will be public, not secret, and even televised.
Most
of Saddam's crimes were committed against Iraqis inside Iraq. "The
Iraqis need to see justice being done in front of them," Iraq's
representative to the United States, Rend al-Rahim, said Dec. 14 on CNN.
"This is going to be truly a process of healing. (It will) lead to a
national reconciliation, to Iraq being able to move forward and, in a
sense, look at its past and say, 'Never again.'"
Trying Saddam is
only one part of justice for Iraq. We should also help the Iraqis
achieve restorative justice to engender reparation, restitution and
rehabilitation of their nation, and redemptive justice to enable them to
break the grip of their oppressed past.
A potential model for
this long-term task is how South Africans worked out of apartheid
without tearing themselves apart socially. The Iraq Foundation, founded
by Iraqi refugees in 1991, and the U.S.-led Coalition Provisional
Authority have broached the idea of Iraqi truth commissions
The
very unity of Iraq may be at stake in how Saddam and other Baathist
party officials are prosecuted for their crimes and punished. Procedures
excluding the Iraqi people from primary authority will harm their
future, not help it.
It will take time for the Iraqis to come to
grips with what they endured. Saddam's fate is a big part of the
process, but only one part. Whether Saddam is sentenced to life in
prison or execution is ultimately less important than the need of the
Iraqi people to have a full accounting of his crimes. Such a record is
critical for their healing.
Much pain lies ahead for Iraqis
because so much truth about the horrors under Saddam has yet to be
revealed. Let us keep all of them in our prayers.
# # #
*Sensing is pastor of Trinity United Methodist Church in Franklin, Tenn. He also is a retired Army artillery officer.
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