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The prospect of an Iraqi trial of Saddam Hussein takes me back to 1979 and Phnom Penh, Cambodia. Another country was seeking justice in a court of law for mass atrocities ordered by its own leaders. Invited by the new Cambodian government as an expert witness on the law of genocide, I watched as a specially created tribunal tried Pol Pot and his top deputy, Ieng Sary. Pol Pot and Ieng Sary led the Khmer Rouge, which took power in Cambodia in 1975. In pursuit of a radical agrarian ideal, the Khmer Rouge emptied Cambodia’s cities and forced the population to live in regimented villages. They tortured and executed thousands. Thousands more died of starvation and disease. In less than four years, more than a million people may have lost their lives. In 1979, the Khmer Rouge was driven from power by dissident forces backed by neighboring Vietnam. The Khmer Rouge retreated to the bush. And Pol Pot and Ieng Sary were tried, albeit in absentia, and convicted of genocide. That sounds like success, but the Phnom Penh trial and its aftermath actually hold important lessons for those planning to bring Saddam into court. In Cambodia, overthrown leaders universally regarded as responsible for mass atrocities were convicted. But the fighting between the new government and guerrilla forces ground on for another 20 years. Ieng Sary defected from the Khmer Rouge in 1996 and was granted amnesty. Pol Pot died in 1998. And now there may be new trials. Last year the United Nations agreed to aid the Cambodian government in trying surviving Khmer Rouge leaders for crimes committed between 1975 and 1979. The conviction of Pol Pot a quarter-century ago was only the beginning of justice. The principal problem was that the 1979 verdict enjoyed little respect around the world. The reason was the obvious motivation behind the trial. The Khmer Rouge, although overthrown, still held Cambodia’s U.N. seat and was recognized as its legitimate ruler by the major powers (who distrusted Vietnam’s role in supporting the new government). So the new government tried Pol Pot and Ieng Sary in large part to promote its own standing in the eyes of the world by highlighting the evils of the Khmer Rouge. A special Iraqi court created to try Saddam Hussein runs a similar risk of being dismissed as justice with a preset agenda. The military action against Iraq in March is viewed in many quarters as unlawful intervention. With the weapons-of-mass-destruction rationale in tatters, the White House now defends the invasion as an appropriate means to remove a brutal dictator. A trial highlighting the evils of Saddam obviously fits that strategy. Such a trial might also promote the fortunes of the Iraqi Governing Council, which the United States is trying to establish as the legitimate new rulers of Iraq. By trying Saddam, the council might begin to look like a real government. The document that the council adopted in December to create a special court to try members of Saddam’s regime already bears the imprint of propaganda. The document was ghostwritten by Bush administration lawyers. With Madison Avenue flair, they titled the document “The Statute of the Iraqi Special Tribunal.” But statutes are typically adopted by legislatures. In Iraq today, as in Cambodia in 1979, there is no functioning legislature. The Cambodian government properly titled its special-court creation a “decree.” Even with the best of intentions, a domestic trial of an ousted leader nearly always seems aimed at a predetermined outcome. Few people are impartial in a country as battered as Iraq today or as Cambodia in 1979. During the Phnom Penh trial, I had difficulty getting in and out of the building each day, as Cambodians repeatedly accosted me to describe the horrors they had endured. Everyone knew that Pol Pot and Ieng Sary were guilty. Even among the judges, prosecutors and appointed defense lawyers, few had not been victimized by the Khmer Rouge. In Iraq, a minority view Saddam Hussein as the heroic embodiment of Iraqi nationalism and will consider any trial a political vendetta. But a majority have already condemned him as a ruthless killer. The Iraqi Governing Council claims that it can find unbiased Iraqis to serve as judges. Seeking out particular judges, however, raises the question of whether those judges are actually being chosen because they can be counted on to convict. Those who went into exile often left because they or their families were victims of Saddam. The exiles are, moreover, tainted in Iraqi eyes by their association with the United States and thus may be seen as implementing the U.S. agenda. Lawyers who stayed in Iraq, on the other hand, may be tainted by their former identification with the regime. If impartial Iraqi jurists are found, they will face a daunting logistical task. Allegations against Saddam may cover numerous crimes committed against the Sh’ia, the Kurds, the Kuwaitis and the Iranians. The trial of Pol Pot and Ieng Sary similarly involved multiple actions against disparate groups of victims. As I sat and listened to the evidence each day, I found it hard to keep it straight. Defenses too can be problematic. The defense lawyers appointed to represent Pol Pot and Ieng Sary argued that whatever the pair did in Cambodia was orchestrated by China. Saddam’s lawyers will likely contend that the United States encouraged many of his acts. They may ask to call U.S. officials to testify: “Why, Mr. Rumsfeld, if Saddam is so evil, did the United States sell Iraq materials for chemical and biological weapons in the 1980s?” “Why, Mr. Bush Sr., did your ambassador tell Saddam in 1990 that if Iraq occupied Kuwait, the United States would not be concerned?” But if the Iraqi judges hobble the defense, they will appear biased. Without a vigorous defense, the case could be dismissed as a show trial with a foregone conclusion. The Phnom Penh trial was criticized for the weakness of the defense mounted by the appointed lawyers. The character of the charges against Saddam will cause more complications. Murder is punishable by death under the Iraqi penal code when committed by “use of toxic substances” or when more than one victim is killed intentionally. Like the government of Cambodia in 1979, however, the Iraqi Governing Council says it will go a step further and charge genocide. That may set off a legal donnybrook. One problem will be the attribution of responsibility. With Saddam, as with Pol Pot and Ieng Sary, most of the violence was actually carried out by subordinates. In a simple murder trial, responsibility can be attributed to a superior who ordered or otherwise promoted the act itself, or perhaps acts of the general type. But when genocide is charged, an additional layer of intent must be proved: Beyond the deaths of the immediate victims, genocide requires an intent to destroy the group of which those victims were members. A superior who ordered the death of particular victims, even multiple victims from a particular group, did not necessarily do so as part of a project to wipe out the group. There may be documents that contain proof of genocidal intent on the part of Saddam, but more will be needed than would suffice for murder. Charging genocide will also raise a question of subject matter jurisdiction. Iraq is a party to the U.N. Convention on the Prevention and Punishment of the Crime of Genocide, which requires states to write a genocide provision into their penal codes. Unfortunately for the Iraqi Governing Council, Iraq never did so. The Iraqi penal code is silent on genocide: no offense definition, no penalty. Meanwhile, Article 1 of the code states: “There is only punishment of an act or omission based on a law which stipulates that it is a criminal offence at the time it is committed.” Cambodia faced the same problem in 1979. Like Iraq, it was a party to the Genocide Convention but had no domestic genocide provision. In its decree establishing the special court, the Cambodian government specified that genocide could be charged based on the Genocide Convention alone. The decree also specified that the penalty could be death. The Iraqi Governing Council’s order similarly refers to Iraq’s ratification of the Genocide Convention. But it does not purport to prescribe a penalty. The Iraqi decree also asserts jurisdiction over war crimes and crimes against humanity. But they too are absent from the Iraqi penal code: no offense definition, no penalty. If Saddam is charged with genocide against Sunni Muslims, the defense will undoubtedly raise another issue that also clouded the genocide convictions of Pol Pot and Ieng Sary: whether one can intend to destroy one’s own group. The prosecutors may be helped by my testimony at the Phnom Penh trial. I testified that the genocide definition does not require that the perpetrator belong to a group different from the victim group. The U.N. Legal Counsel Office, however, has been circumspect on the point. Capital punishment presents another dilemma. President Bush has said that Saddam should be executed. But U.N. Secretary-General Kofi Annan has already announced that the United Nations could not support the execution of Saddam. If capital punishment is nonetheless sought, the United States will face yet another crisis with the European powers. British Prime Minister Tony Blair will face even greater criticism at home for his support of the United States. The White House is saying that a trial will not take place until this summer, when, in the White House view, Iraq will have a “sovereign government.” However, the United States’ status as belligerent occupant will surely continue beyond summer 2004. Even if the administration of trials is delegated to the Iraqi Governing Council, the United States will remain in overall control, exercising the functions of government. Under Article 6 of the Fourth Geneva Convention, an occupying force must comply with provisions on humane treatment “to the extent that such Power exercises the functions of government.” Since Saddam was arrested during the occupation, the Geneva Convention considers him a “protected person,” entitled to fair treatment. In addition, the United States is bound by the more explicit pretrial and trial guarantees of the International Covenant on Civil and Political Rights. President Bush should not be offering his opinions on Saddam’s guilt or possible sentence. We have already compromised any future trial by our handling of the former dictator in custody. We are pumping him for information. We have not afforded him access to a lawyer. We have not brought him, as required by international due process, before an impartial magistrate to determine the legality of his detention. And the world is watching and judging. The trial of Pol Pot and Ieng Sary backfired on Cambodia. The prosecution presented solid evidence of horrifying crimes, but the international community did not take the convictions seriously. The Khmer Rouge was allowed to keep Cambodia’s U.N. seat for the next decade. The Bush administration should understand that in the pursuit of justice having the evidence may not be enough. John B. Quigley is President’s Club Professor in Law at Ohio State University Moritz College of Law. He is co-author of “Genocide in Cambodia: Documents From the Trial of Pol Pot and Ieng Sary” (University of Pennsylvania Press, 2000). He can be reached at [email protected]

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