The question of Saddam Hussein's future is being contemplated by analysts and columnists around the world. Although FindLaw Columnist Phillip Carter outlines four possibilities in an article for CNN, there are currently two leading answers to the question of where Saddam Hussein should be tried, and by whom.
The American government has been vocal in favor of trial by the Iraqi Governing Council's tribunal, developed for the purpose of prosecuting former Hussein regime officials. The argument for Iraqi jurisdiction is to put the power in the hands of the Iraqi people, those who have suffered most under Hussein's regime.
On the other hand, the fledgling Iraqi tribunal may have difficulty handling the complexities of such an intricate international case, or as one skeptical commentator put it, the Iraqi tribunal "lacks the institutional competence and credibility to conduct such an important trial." Others complain that the U.S. endorsement of this option revolves around the possibility of the death penalty, which a UN-sanctioned tribunal would not permit.
Many critical of the American-backed proposal instead favor trial by an International Criminal Tribunal. International human rights groups worry that the United States has selfish motives in mind. One column in the Edinburgh, Scotland EVENING NEWS suggested that such and international tribunal would seem less under American influence, stating that "an international tribunal would inevitably mean Saddam citing, in defence, evidence that his conduct in the Iran-Iraq war was far from opposed by his Arab Gulf neighbours or the US." Another advantage to international trial would be involvement by other countries that have suffered greatly at the hands of Hussein, such as Iran and Kuwait.
International tribunals have a varied history. The International Criminal Tribunal For the Former Yugoslavia and the International Criminal Tribunal For Rwanda both set up within the framework of the United Nations are already underway. And more recently there has been the establishment of the International Criminal Court, set up as a completely new international organization. In each case precedents are being set for the trials of those accused of international human rights violations, but guidelines are still being written, and each of these cases has had to break a significant amount of new ground. Learn more about some of the international tribunals that have taken a part in paving the way below. It is worth mentioning that the United States was one of only seven nations to vote against the Rome Statute of the International Criminal Court in 1998. Learn more from Human Rights Watch and the International Center for Transnational Justice.
The International Military Tribunal at Nuremberg was one of the two ad hoc international military tribunals (the other being at Tokyo) established after World War II to try individuals who committed war crimes, crimes against peace and crimes against humanity.
"In early October 1945, the four prosecuting nations - the United States, Great Britain, France and Russia, issued an indictment against 24 men and six organizations. The individual defendants were charged not only with the systematic murder of millions of people, but also with planning and carrying out the war in Europe." More information about the trials and many of the Nuremberg transcripts are available at "A Look Back at Nuremberg" on the Court TV Web site.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was conceived of as a "new Nuremberg," established to prosecute those responsible for serious violations of international humanitarian law committed in the former Yugoslavia region since 1991. From the time crimes began, the center of the conflict shifted from Slovenia to Croatia, and then to Bosnia, at which point the international community became aware of signs of systematic ethnic cleansing. No international code for this kind of court existed, as precedents set by the Nuremberg and Tokyo tribunals were based on victor's justice. In the case of Yugoslavia, the tribunal did not have control over the territories in which crimes were committed and perpetrators were located.
A notable recent development for this tribunal: Retired General Wesley Clark testified against former President Slbodan Milosevic of Yugoslavia. According to the NEW YORK TIMES, Clark "told the court that Milosevic had advance knowledge and command and leadership responsibility for atrocities during the violent breakup of Yugoslavia, including the massacre of thousands of Bosnian Muslims from the town of Srebenica in 1995."
In April 1994, ethnic conflict erupted in Rwanda which resulted in the genocidal murder of about half a million members of the Tutsi tribe by members of the Hutu tribe, and then the displacement of hundreds of thousands of Hutus into the territory of neighboring countries.
The International Criminal Tribunal of Rwanda (ICTR) was established to prosecute those responsible for the serious violations of international humanitarian law committed in the territory of Rwanda between January 1, 1994 and December 31, 1994, as well as those Rwandan citizens responsible for similar crimes in neighboring states during the same period. The ICTR is funded by an appropriation from the General Assembly of the United Nations, and more than 80 nationalities are represented at the Tribunal. The international community has been supportive, cooperating with the Tribunal in a number of important ways.
The Tribunal's first indictment was made in November 1995. Since that date, over 70 suspects have been indicted and the trials of thirteen have been completed, resulting in twelve convictions and one acquittal. One of the most significant convictions was that of Jean Kambanda, Prime Minister of the Rwandan Government during the genocide, the first head of government to be convicted for genocide. This is remarkable because it created conditions in which prosecutions could be undertaken against other former heads of state, including General Augusto Pinochet of Chile, President Hissein Habre of Chad, and Slobodan Milosevic of Serbia.
Some of the challenges the court has faced include the need to bring counsel and witnesses from all over the world, and to translate from and into the two official languages of the Tribunal. According to the Tribunal's Web site, one of the crowning accomplishments of the ICTR is its "substantial contribution to the replacement of a culture of impunity by a culture of accountability." Since its inception, the Tribunal has been a model for conflict situations in Sierra Leone, Cambodia, East Timor, and other conflicts around the world.
Learn about the Tribunal's relevance for peace and justice around the world.
The so-called "third generation" of criminal bodies are referred to by the Project on International Courts and Tribunals as "internationalized" or "hybrid" criminal bodies. These include jurisdictions in East Timor, Kosovo, and Sierra Leone, as well as one under negotiation to address crimes of the Khmer Rouge in Cambodia. The name refers to the mixed nature of the judicial system, incorporating both international and national features. All composed of international and local staff, these courts apply a compound of international and national substantial and procedural law.
Sources: EDINBURGH EVENING NEWS, CNN.com, WASHINGTON POST, United Nations, TORONTO STAR, International Criminal Tribunal for Rwanda, Project on International Courts and Tribunals, Court TV, BBC, Human Rights Watch, International Criminal Court.