Release Date: January 12, 2004
BUFFALO, N.Y. -- Lessons learned from past and ongoing war-crimes trials provide a useful backdrop for discussions on how Saddam Hussein should be tried, and by whom, according to a University at Buffalo political scientist who studies human rights.
"At the Nuremberg and Tokyo tribunals following World War II the overwhelming concern was that the two tribunals would be seen as 'victor's justice,'" says Claude E. Welch, Jr., co-director of the Center for Human Rights at the University at Buffalo and SUNY Distinguished Service Professor in the Department of Political Science in the UB College of Arts and Science. "Careful legal preparation was done to avoid this perception and new categories of crimes were established to expand the definition of war crimes.
"Above all, the U.S. sought to bring an international presence to the trials," explains Welch, who is including a chapter on the history of war tribunals in his forthcoming book, "Protecting Human Rights Globally: Roles and Strategies of International NGOs."
U.S. dissatisfaction with the results of the World War I war tribunal, which was carried out by a national court in Germany, provided the impetus for international involvement in the World War II war tribunals, according to Welch.
"After World War I about 850 Germans went to trial for Germany's aggression against Belgium -- whose neutral international status had been given international guarantees -- and for other hostile acts. However, a majority of the German leaders were acquitted or received very light sentences, and emperor Kaiser Wilhelm II was granted political exile," Welch explains.
The comparative success of the Nuremberg and Tokyo trials, Welch says, has helped shaped the belief that the international community should play a prominent role in future war tribunals, including one for Saddam Hussein.
"It's highly advisable to involve advisors from the international community in a war tribunal for Saddam Hussein," Welch says. "It would give Saddam's trial a greater global legitimacy, bring
international expertise to the tribunal and make it compatible with international tribunals established by the U.N. Security Council to prosecute war crimes committed in Rwanda and Yugoslavia," he says.
"It also would give trials of Saddam and other Iraqi leaders a compatibility with the International Criminal Court established by a U.N. Human Rights Treaty, negotiated by more than 100 states," Welch adds.
Although the international stage provided by the U.N. to the Rwanda and Yugoslavia tribunals ultimately may benefit the process and perception of justice, Welch says these trials have suffered at the outset from inefficiency and slowness. There also have been charges of corruption, in the case of Rwanda, and criticism that the trial of Yugoslav president Slobodan Milosevic has given him a platform to grandstand and rally his supporters.
These may be reasons why the U.S. is eschewing use of the U.N.-sanctioned International Criminal Court in favor of establishing a national Iraqi Criminal Court, with international advisors, to try Saddam Hussein, Welch says.
Welch notes that the U.S. played a role in proposing the International Criminal Court in the early 1990s, but since has been reluctant to see it employed.
"The U.S. had been interested in the idea of an international court," Welch says. "As it realized what implementation could mean it got cold feet, arguing that as a major policeman in the world its soldiers potentially could be held responsible for war crimes," Welch says.
The war tribunal underway in Sierra Leone may be the best example of how a war tribunal for Saddam Hussein might proceed, Welch says.
"In that case, national law has been applied with international involvement, utilizing the procedures and rules of evidence of the International Criminal Court," he says. "This may be the model the U.S. prefers to follow in establishing the Iraqi Tribunal."
Establishment of a similar national court structure in Iraq would have potential pitfalls and benefits for the U.S., Welch contends.
"It would cast legitimate doubt on U.S. support of international law, but it also could provide a reason for the U.S. to become more involved in the punishment of genocide, war crimes and crimes against humanity around the world," he concludes.