Venues for Prosecuting
Saddam Hussein: The Legal Framework
By Diane F. Orentlicher
December 2003
The capture of Saddam Hussein on
December 14, 2003, has prompted wide-ranging
debate about where and how he should be tried.
While potential venues for prosecution range
across a broad spectrum, it seems likely that
Hussein will be tried before a court in Iraq
operating with some form of international assistance.
The International Criminal Court: Prosecutions
before the year-old International Criminal Court
(ICC) in The Hague are unlikely for two reasons.
First, the Court has jurisdiction only with
respect to crimes committed after July 1, 2002,
the date that its statute entered into force. [1] The vast majority of charges likely
to be pressed against Hussein involve crimes
committed before then.
Second, the Court could exercise jurisdiction
over crimes committed by Hussein in Iraq only
with the consent of Iraq or as a result of a
referral by the UN Security Council acting under
Chapter VII of the UN Charter, [2] and neither prospect is likely.
Under the State consent regime of the Rome Statute
of the International Criminal Court (Rome Statute),
which applies in the absence of a Security Council
referral, the requisite consent must be provided
by either the State where the crimes in question
occurred (the territorial State) or the State
of nationality of the alleged perpetrator. [3] In respect of crimes allegedly
committed by Hussein in Iraq, Iraq is of course
both the territorial State and the State of
nationality of the alleged perpetrator. States
can provide consent to ICC jurisdiction either
by adhering to the Rome Statute or by lodging
a declaration accepting the Court's exercise
of jurisdiction with respect to the crime in
question.
[4] Iraq is not a party to the Rome
Statute and, in light of the incumbent U.S.
administration's opposition to the ICC,
[5] ad hoc consent during a U.S.-led
occupation is inconceivable. Further, because
most Iraqis would like to prosecute Saddam Hussein
in domestic courts, Iraqi consent to ICC jurisdiction
would be unlikely even if other barriers to
ICC jurisdiction could be surmounted. Finally,
US opposition to the ICC would also preclude
Security Council referral, since the US would
surely veto any such attempt.
An Ad Hoc International Court: In principle,
the UN Security Council could establish an ad
hoc tribunal with jurisdiction over crimes committed
by the Ba'ath regime. But after a decade of
lengthy and costly trials before two other courts
created by the Security Council in the exercise
of its powers under Chapter VII of the UN Charter
- the International Criminal Tribunal for the
former Yugoslavia
[6] and the International Criminal
Tribunal for Rwanda
[7] - there appears to be little
appetite within the Council for the creation
of a third ad hoc tribunal. The United States,
whose support for such action would be essential,
has taken the position that Iraqi courts can
and should take the lead in prosecuting Hussein-era
crimes.
Hybrid Courts: A more plausible option
is the creation of a hybrid court. Hybrid courts,
which now operate in Kosovo, East Timor and
Sierra Leone, enforce a combination of domestic
and international criminal law and comprise
both local and international judges, prosecutors
and administrative staff. [8] The courts in East
Timor and Kosovo were established by United
Nations administering authorities, while the
Special Court for Sierra Leone (SCSL) was established
by a treaty between the United Nations and the
government of Sierra Leone. [9] Negotiations leading
to conclusion of the UN-Sierra Leone treaty
were undertaken pursuant to a mandate by the
UN Security Council.
[10] Based in Freetown, Sierra Leone,
the SCSL has been operating since 2002. A majority
of its judges and its Chief Prosecutor and Registrar
were appointed by the UN Secretary-General.
The United Nations has agreed to participate
in a hybrid court in Cambodia as well. While
the SCSL operates outside the regular court
system of Sierra Leone, [11] the Extraordinary Chambers in the Courts of Cambodia
will form part of the Cambodian judiciary.
At the insistence of the Cambodian government,
a majority of judges and the most senior officers
of the Extraordinary Chambers will be Cambodian
nationals. To address UN concerns about the
impartiality of the Cambodian judiciary, a super-majority
of judges must approve any verdict. [12]
As the contrasting details of the SCSL and
the proposed Cambodian court suggest, there
is no single model for a hybrid court. Each
has been tailor-made to address the unique imperatives
of the country or region in which they operate.
Many non-Iraqis support the creation of a hybrid
court for Iraq. But the Iraqi Governing Council's
desire to retain the death penalty presents
a significant impediment to the creation of
such a hybrid court operating with UN support.
Neither the United Nations nor most of the United
States' European allies would participate in
a court that could impose capital punishment.
Another model of hybrid court favored by some
Iraqi and other jurists is a special Iraqi tribunal
with jurisdiction over crimes under international
law in which qualified jurists from other Arab
states would participate alongside Iraqi judges.
Domestic Trials: The option favored
by members of Iraq's Governing Council and by
the United States government is trial before
reconstituted Iraqi courts, purged of judges
loyal to Saddam Hussein. One potential venue
for prosecution of Hussein is the "Iraqi Special
Tribunal for Crimes Against Humanity," whose
statute was adopted by the Iraqi Governing Council
on December 10, 2003. [13] The statute confers
jurisdiction over Iraqi nationals and residents
accused of specified crimes committed between
July 16, 1968 and May 1, 2003. [14]
Pursuant to this statute, the Iraqi tribunal's
subject matter jurisdiction would comprise a
blend of domestic and international crimes.
The latter include the international crimes
of genocide, crimes against humanity and war
crimes,
[15] while the former include the
following offenses under Iraqi penal law:
a) For those outside the judiciary, the attempt
to manipulate the judiciary or involvement
in the functions of the judiciary, in violation,
inter alia, of the Iraqi interim constitution
of 1970, as amended;
b) The wastage of national resources and
the squandering of public assets and funds,
pursuant to, inter alia, Article 2(g) of Law
Number 7 of 1958, as amended; and
c) The abuse of position and the pursuit
of policies that may lead to the threat of
war or the use of the armed forces of Iraq
against an Arab country, in accordance with
Article 1 of Law Number 7 of 1958, as amended.
[16]
As adopted on December 10, 2003, the statute
for the Iraq tribunal makes only limited provision
for international participation. Article 28
provides: "The judges, investigative judges,
prosecutors and the Director of the Administration
Department shall be Iraqi nationals." But in
an apparent concession to foreign concerns,
Article 4(d) provides: "The Governing Council,
if it deems necessary, can appoint non-Iraqi
judges who have experience in the crimes encompassed
in this statute, and who shall be persons of
high moral character, impartiality and integrity."
Other provisions require the appointment of
non-Iraqi nationals "to act in advisory capacities
or as observers." [17]
Some commentators have raised concerns about
whether the Iraqi Governing Council, whose members
were appointed by the Coalition Provisional
Authority (CPA), may lawfully create such a
court. [18] Their concerns apparently derive from provisions
of the Geneva Convention (No. IV) Relative to
the Protection of Civilian Persons in Time of
War [19] restricting permissible changes
to the penal law of occupied territories by
Occupying Powers. [20]
The Geneva Convention (No. III) Relative to
the Treatment of Prisoners of War
[21] may also have implications for
how Saddam Hussein, who remains in US custody,
may be tried. As the government official who
was ultimately in control of the deposed regime's
armed forces, Hussein is entitled to prisoner-of-war
status.
[22] As a prisoner of war, he can
be tried by the Detaining Power-in this case
the United States-"only by a military court,
unless the existing laws of the Detaining Power
expressly permit the civil courts to try a member
of the armed forces of the Detaining Power in
respect of the particular offence alleged to
have been committed by the prisoner of war."
[23] Moreover, "[i]n no circumstances
whatsoever shall a prisoner of war be tried
by a court of any kind which does not offer
. . . essential guarantees of independence and
impartiality."
[24]
Since these provisions are designed to ensure
that prisoners of war receive specified protections
if they are tried by a Detaining Power, it is
not clear whether or under what circumstances
US authorities could surrender Hussein for prosecution
by Iraqi courts without circumventing its own
obligations under the Third Geneva Convention.
*[Author's update: On January 8, 2004, the
Pentagon announced that it had determined Saddam
Hussein to be a prisoner of war. According to
an Associated Press account published in the
wake of this announcement, a spokesman for the
International Committee of the Red Cross "said
handing Saddam over to the Iraqis for trial
wouldn't necessarily conflict with the 1949
Geneva Conventions on the conduct of warfare,
as long as he is granted due process. It is
up to the United States, as Iraq's occupier,
to determine how Saddam is to be tried."
War Crimes Trial for Saddam Is Possible, AP,
Jan. 10, 2004.]
Trials by Third States: The governments
of both Iran and Kuwait have indicated that
they may bring charges against Hussein for crimes
committed against their nationals by Iraqi armed
forces. It is also conceivable that Iraqi officials
other than Hussein may be prosecuted in third
states exercising universal jurisdiction. In
November 2002, Danish authorities placed an
Iraqi defector, General Nizar al-Khazraji, under
house arrest in connection with accusations
relating to Iraq's use of poison gas against
Kurds in northern Iraq in 1988. Al-Khazraji
disappeared from his home in Soroe, Denmark
on March 17, 2003 and reportedly fled to the
United Arab Emirates. [25]
Trials by the United States Government:
The United States could bring charges against
Hussein in relation to alleged war crimes committed
against members of the US armed forces during
the 1991 Persian Gulf War and the current conflict
in Iraq. In April 2003, US officials stated
that they were investigating possible war crimes
committed against American soldiers during the
current conflict for possible prosecution.
[26] Following the capture of Hussein,
a senior State Department official said that
the United States "reserves the right" to try
Hussein for crimes against US citizens. [27]
Conclusion: At this writing, the question
of where and how Saddam Hussein will be prosecuted
remains in play. Although the US government
has repeatedly expressed support for prosecution
of BA'ath-era crimes in Iraqi courts, the Bush
administration has not yet endorsed the Governing
Council's desire to prosecute Hussein before
the Special Iraqi Tribunal. [28] Human rights organizations have
pressed the Governing Council to consider amending
the Statute of the Special Iraqi Tribunal to
provide for greater international participation-effectively
transforming the tribunal into a hybrid court-and
to ensure greater protection for the rights
of defendants. [29] As noted, however, Iraqi insistence
on retaining the death penalty would foreclose
participation in a hybrid court by many other
countries and by the United Nations.
About the Author:
Diane F. Orentlicher is Professor of International
Law and faculty director of the War Crimes Research
Office at American University in Washington,
D.C.
[1] .Rome Statute of the International
Criminal Court, UN Doc. A/CONF.183/9 (1998),
as corrected by the procés‑verbaux
of November 10, 1998 and July 12, 1999, art.
11.
[5] .On May 6, 2002, the Bush administration
notified the United Nations that the United
States does not intend to become a party to
the Rome Statute, which President Clinton
had signed on December 31, 2000. US opposition
to the Rome Statute is also embodied in the
American Servicemembers' Protection Act,
Pub. L. No. 107-206, 116 Stat. 820 (2002).
Despite its general thrust, this law authorizes
the United States to render "assistance to
international efforts to bring to justice
Saddam Hussein" and several other named individuals
"accused of genocide, war crimes or crimes
against humanity." Id., § 2015.
[6] .This tribunal was established
by SC Res. 827, UN Doc. S/RES/827 (1993).
[7] .This tribunal was established by SC
Res. 955, UN Doc. S/RES/955 (1994).
[8] .See generally Laura A.
Dickinson, The Promise of Hybrid Courts,
97 Am.J. Int'l L. 295 (2003).
[10] .SC Res. 1315, para. 1, UN
Doc. S/RES/1315 (2000).
[11] .See Report of the Secretary-general
on the establishment of a Special Court for
Sierra Leone, UN Doc. S/2000/915, para.
39 (2000); Special Court Agreement 20002,
Ratification Act 2002, art. 11(2).
[12] .See Report of the Secretary-general
on Khmer Rouge Trials, UN Doc. A/57/769
(2003).
[15] .Id., arts.10-13. In
interpreting the provisions concerning crimes
under international law, "the Trial Chambers
and the Appellate Chamber may resort to the
relevant decisions of international courts
or tribunals as persuasive authority for their
decisions." Id., art. 17(b).
[18] .See, e.g., Hanny
Megally and Paul van Zyl, US Justice with
an Iraqi Face? A Special Tribunal, Int'l
Herald Trib., Dec. 4, 2003; Human Rights Watch,
Memorandum to the Iraqi Governing Council
on 'The Statute of the Iraqi Special Tribunal,'
Dec. 17, 2003, available at http://www.hrw.org/backgrounder/mena/iraq121703.htm.
[19] .Concluded at Geneva Aug. 12,
1949; entered into force Oct. 21, 1950, 75
U.N.T.S. 287.
[21] .Concluded at Geneva Aug. 12,
1949; entered into force Oct. 21, 1950, 75
U.N.T.S. 135.
[22] .See id., Art. 4(1).
Soon after Hussein's capture the US Secretary
of Defense stated that, although Hussein was
being accorded the protections of the Third
Geneva Convention, Pentagon lawyers were assessing
whether Hussein should be legally recognized
as a prisoner of war. The International Committee
of the Red Cross has taken the position that
Hussein prima facie qualifies as a prisoner
of war. See Jonathan Fowler, Red
Cross Wants Right to Visit Saddam, AP,
Dec. 15, 2003.
[23] .Id., art. 84. See
also id., Art. 102. The War Crimes Act
of 1996, Pub. L. 104-192, § 2(a), Aug. 21,
1996, 110 Stat. 2104, allows members of the
US armed forces to be prosecuted for war crimes
in civilian courts under specified conditions.
Thus, in accordance with Article 84 of the
Third Geneva Convention, Iraqi prisoners of
war theoretically could be prosecuted for
war crimes before a civilian US court, although
prosecution before an American military court
would be more likely.
[26] .Jeff Sallot, US Plans Own
War-Crimes Trials, The Globe and Mail
(Toronto), Apr. 8, 2003; Jim Mannion, US
Drawing Up Plans for US, Iraq-led War Crimes
Trials, Agence France Presse, Apr. 7,
2003.
[27] .Timothy M. Phelps and Mohamad
Bazzi, Who'll Try Saddam? As Iraqis demand
swift trial, US says it may want him, too,
Newsday, Dec. 16, 2003.
[28] .See Peter Slevin, Iraqi
Governing Council Says It Wants to Try Hussein,
Wash. Post, Dec. 15, 2003.
[29] .See, e.g., Human Rights
Watch, Memorandum to the Iraqi Governing Council
on 'The Statute of the Iraqi Special Tribunal,'
supra note 18.
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