On normative grounds, I would like to see Saddam tried before an Iraqi tribunal in Iraq. On pragmatic grounds, however, an international tribunal of the sort used in Rwanda or the former Yugoslavia might be preferable. My colleague at Case, Michael Scharf, is perhaps the country’s leading expert on international criminal prosecutions of this sort. He offers the following thoughts:
There are no neutral qualified Iraqi judges available for a trial of Saddam. Exiled Iraqi judges are most likely to be biased against him, resulting in retaliatory justice rather than real justice. By using judges such as Judge Abi-Saab of Egypt, who recently completed his term as a judge on the International Criminal Tribunal for the former Yugoslavia, there would be a greater likelihood that Iraqis and Muslims throughout the Middle East will believe the judgment of the Tribunal.He also notes that there is a clear basis for an international prosecution, as Saddam’s victims included Kuwait (the invasion), Iran (use of chemical weapons), Israel (firing scuds at civilian populations) and the United States (mistreatment of prisoners). Note, this is not a case for the ICC, but rather for the sort of jurisdictionally limited tribunals that the U.S. has historically supported. In any event, Saddam’s crimes are beyond the ICC’s prospective jurisdiction. I don’t know if I agree with Prof. Scharf, but I think he makes a good case.
It is too risky to leave this trial to the Iraqis. Even qualified judges have had trouble reigning in Milosevic; the Rwanda Tribunal’s judges learned the lessons from the Milosevic trial and kept much tighter reins on the defendants during the just completed Media trial. If Saddam is permitted to do what Milosevic has done at The Hague, it will give him an ideal platform to rile up anti-American sentiment throughout the middle east.