Monday, December 15, 2003

Where were you?

Daniel was buying a paper in the train station.

I was in a car hurtling along a dark motorway: a lift home from a friend’s kindly uncle (a chorister in the Royal Philharmonic choir, a charming man with an extraordinary Charles Darwin beard). We had been to that most quaintly English of things: a carol concert at the Royal Albert Hall where the audience are encouraged to sing along with certain carols or verses. It seemed a bit twee at first, but we got into it.

So Saddam has been captured. Let the debate over his trial begin.

There is already an Iraqi tribunal for war crimes and crimes against humanity, and under its rules it could - like the Special Court for Sierra Leone - appoint international judges. But this seems unlikely: the Iraqis want to keep it local, and the US administration wants to keep the UN out.

I expect some would rather see the new International Criminal Court (ICC) in the Hague have responsibility, or would like to see a special Security Council tribunal established, to emphasise the international nature of Saddam's crimes and ensure impartiality.

Personally, I think the best option is the Special Court for Sierra Leone model (a “mixed” court of domestic and international judges appointed by the local government and the UN Secretary General). It would have the following advantages:

(1) the ICC can only try crimes committed after 1 July 2002, when its statute came into force. It would not have jurisdiction over many of Saddam’s crimes. Further, the Court has no territorial jurisdiction over Iraq – which never signed the statute.

(2) A Security Council Tribunal (as was set up for Rwanda or Yugoslavia) could be seen by the locals as another UN imposition and lack credibility given the suffering caused by UN sanctions (also, the US is less likely to fund it – it has pressured the Yugoslav Tribunal to wrap up its cases in a hurry through budget cuts);

(3) The Special Court for Sierra Leone is coupled with a truth and reconciliation commission, and only has jurisdiction over those most responsible for the most serious crimes (which avoids the criticisms aimed at the Yugoslavian trials of going after foot soldiers more than generals and better allows for national healing);

(4) a mixed court allows for both international involvement (funding, impartiality) and involving local judges (with their knowledge of local law, conditions and language, as well as being more likely to garner local support); and

(5) The Special Court was not imposed upon a conflict by the Security Council under Chapter VII, but was established by a treaty between the UN and Sierra Leone, thus recognising Sierra Leone's own sovereignty and status as a nation. This also allowed the Court to remain within the country where the crimes were committed (unlike the Hague tribunals): which makes it easier and less traumatic for victims to give evidence.

The ICC is important, and will have its day, but Saddam should be tried in Iraq by a mixed local/international tribunal.

Anyway, where were you when you heard?

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