December 19, 2003
A UMNS Commentary By the Rev. Donald Sensing

When Saddam Hussein murdered his way into power in 1979, he set the tone for more than two decades of brutal rule. He launched an aggressive war against Iran that took more than a million lives, committed genocide against Iraqi Kurds and Marsh Arabs, and funded and trained international terrorists. He tortured or killed millions of Iraqi men, women and children, drove 4 million of them into exile and invaded Kuwait.

Since Saddam's capture, commentary has focused on who should put him on trial. I strongly believe this is the wrong question. The primary question is, "What constitutes justice, and how shall it best be achieved?"

Rendering a judicial verdict against Saddam is not the most important goal because his murderous guilt cannot be rationally questioned. In even the fairest trial possible, "guilty" is the foregone conclusion, at least for his major offenses. Any other verdict would mock justice rather than uphold it.

The real value of a judicial proceeding against Saddam is to render a fair, accurate, public accounting of the terror of his regime.

Fully exposing Saddam's deeds to the Iraqi people and the world is the point. Enabling the Iraqi people to face their horrors so they may grow out of them is the point. Discovering the truth of Saddam's ties to nations and international agencies that propped him up is the point.

Saddam's trial "must be an opportunity to educate the nation and make the psychological transformation from the past to the future," said Laith Kubba, a prominent Iraqi expatriate and senior program officer for the National Endowment for Democracy. "What is important in these trials is not to put on trial the person of Saddam Hussein, but his deeds."

Only by learning the full truth, vetted to judicial standard, can Iraqis have a real hope of transcending Saddam. Only by such discovery can there be a hope that the United States, other nations and international agencies never repeat their errors or sins that left Saddam in power for so long, at the cost of so much blood. So the foremost consideration of a trial is whose jurisdiction can best achieve these just ends.

The United Nations' International Criminal Court cannot try crimes committed before it was created on July 1, 2002. Thus, it can't try Saddam because his crimes predate the court. In my view, that leaves three possible venues, in order from least to most desirable:

1. American law permits courts-martial or federal trials of foreign nationals who commit war crimes against U.S. forces, but this jurisdiction is far too limited for Saddam's offenses. Saddam is too important for it, anyway. Such a court would have no legitimacy among nations, especially in Arab countries, including Iraq. President Bush's statements since Saddam's capture make it clear that this option is not on the table.

2. A U.N.-sponsored International Criminal Tribunal could be formed of the same sort that is now trying former Yugoslav strongman Slobodan Milosevic. There are serious shortcomings with this option. No authority exists for an Iraq ICT. The U.N. Security Council would have to establish one, but the council has repeatedly rejected forming an Iraq ICT for many years.

Arabs generally mistrust U.N. courts (12 Arab states have not ratified the ICC, citing concerns about its rules and procedures) and would regard an ICT as little better than an American court. Moreover, as CNN legal analyst Phil Carter noted, such a tribunal would "be criticized as 'victor's justice,' despite its international nature."

A U.N. tribunal would be widely rejected by Iraqis, who generally hold the United Nations in deep contempt for propping Saddam up for so long. Insistence that Saddam must be tried only by a U.N. court smacks of Western elitism, disregarding the legitimate claims of Iraqis and dismissing their competence.

Even so, a U.N.-sponsored court may be adequate to the task if - and only if - it sits in Baghdad, is fully public and its judges are majority Iraqi.

3. Special Iraqi tribunal courts, established by the Iraq Governing Council before Saddam's capture, are a more realistic option. They derive their legal theory from existing Iraqi law and the code of the ICC. The tribunals' rules of evidence and procedures spring from Iraqi common law and American law. International advisers and international judges are allowed. An Iraqi tribunal will permit Saddam to mount a vigorous defense. Members of Iraq's Governing Council have said that Saddam's trial will be public, not secret, and even televised.

Most of Saddam's crimes were committed against Iraqis inside Iraq. "The Iraqis need to see justice being done in front of them," Iraq's representative to the United States, Rend al-Rahim, said Dec. 14 on CNN. "This is going to be truly a process of healing. (It will) lead to a national reconciliation, to Iraq being able to move forward and, in a sense, look at its past and say, 'Never again.'"

Trying Saddam is only one part of justice for Iraq. We should also help the Iraqis achieve restorative justice to engender reparation, restitution and rehabilitation of their nation, and redemptive justice to enable them to break the grip of their oppressed past.

A potential model for this long-term task is how South Africans worked out of apartheid without tearing themselves apart socially. The Iraq Foundation, founded by Iraqi refugees in 1991, and the U.S.-led Coalition Provisional Authority have broached the idea of Iraqi truth commissions

The very unity of Iraq may be at stake in how Saddam and other Baathist party officials are prosecuted for their crimes and punished. Procedures excluding the Iraqi people from primary authority will harm their future, not help it.

It will take time for the Iraqis to come to grips with what they endured. Saddam's fate is a big part of the process, but only one part. Whether Saddam is sentenced to life in prison or execution is ultimately less important than the need of the Iraqi people to have a full accounting of his crimes. Such a record is critical for their healing.

Much pain lies ahead for Iraqis because so much truth about the horrors under Saddam has yet to be revealed. Let us keep all of them in our prayers.

United Methodist News Service
Donald Sensing is pastor of Trinity United Methodist Church in Franklin, Tenn. He also is a retired Army artillery officer.