WAR CRIMES: COMPARISON OF TWO TRIALS – May 17, 2007

There is no doubt that the trials of Saddam Hussein and Slobodan Milosevic will forever be cited as a landmark of legal history but whether they will ever be considered a bright example of justice being served is a different question altogether. The two trials shared a common goal, that of bringing two of the world’s most ruthless criminals of war to justice but when examined closely it becomes obvious that other than the objective, they do not seem to share many similarities at all.

The first and fundamental difference that can be observed between the two major war crimes trials is an obvious one: Milosevic was tried under international venue while Saddam’s trial took place in a domestic Tribunal.

Although the U.S. had been one of the prime instigators behind the NATO bombings that eventually stopped the war in former Yugoslavia, it was the UN that was entrusted with the responsibility to take Milosevic to court and to set up the proper mechanism, a Tribunal in order to achieve this. The choice was naturally the only logical one under the circumstances. The UN had been present and active during the entire time of turmoil and therefore possessed the precious insight and understanding of an extremely complicated situation. Furthermore, the UN also had the necessary experience to carry out such an enormous task. Its previous experience included Tribunals set up for both Sierra Leone and Rwanda.

In contrast, the very minute Saddam was captured by U.S. troops and the officials eagerly announced that Saddam would be tried by the Iraqi people because being the victims of his wrath has earned them that right. This position totally ignored the hundreds of Kurds, Kuwaitis and even Americans who lost their lives as a result of Saddam’s crimes. This is in fact the first time in history a member state of the UN has decided to try a country’s leader for war crimes without the participation, or indeed involvement of the UN. A Tribunal set up by a transitional government imposed by the occupation forces of the U.S. could do very little to convince that it has been acting impartially even though strenuous efforts were made in order to create the illusion that Saddam was in the custody of Iraq.

As expected, both trials have been subjected to heavy criticism from the onset. However, the fact that the trial against Milosevic was undertaken by the UN via the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY), which is broadly regarded as an acceptable international Institution made it harder for critics to challenge its authority and hence the trials’ legality. Accusations leveled against the ICYT proclaiming that it was created without a full meeting of the General Assembly, which would ensure its compliance with the UN Charter while plausible failed to influence public opinion dramatically. In contrast, the Supreme Iraqi Criminal Tribunal (SICT), a body created outside the normal Iraqi legal system, possessing powers strictly limited to prosecuting Saddam for crimes committed in a specific period of time did not manage to establish itself in the eyes of the public as a legitimate judicial body with the right to try and punish the dictator in the name of the Iraqi people. The international community was completely absent and the transitional Governing Council bringing the Tribunal to life under the infamous Law number 10 enacted on October 9 2005 failed to convince anyone that it was acting independently and free from any outside political influences.

Moreover, the venue of each trial itself was an important factor, adding to or indeed subtracting credibility from its assignment. Milosevic was tried in the Hague, a neutral, centrally European location. Saddam on the other hand was taken to court in Baghdad, a capital torn by civil war and disorder, far away from the eyes of the International community. The Hague could boast an array of highly respectable, educated and experienced prosecutors such as Carla del Ponti; Baghdad could not. Examining the legal reasoning of the Iraqi judges entrusted with such a complex case, one can not help admiring them for the meticulous and professional work they did in their legal reasoning. Nevertheless, entrusting such an enormous responsibility to people who have no real experience when it comes to major war crimes trials can be viewed risky at the very least. A possible solution to this problem would have been to allow experienced international judges to hear the case along with the local judges, a combination that worked particularly well in the case of a similar Tribunal set up for the Sierra Leone atrocities. This would have given a much needed flair of international involvement, therefore boosting the Tribunal’s credibility.

Legal questions concerning the composition of the two Tribunals aside, both Tribunals seemed unable to cater for error free proceedings. Both the charges brought against Saddam and those against Milosevic were problematic to say the least. Saddam was accused of hideous crimes committed in a period of over three decades, including the murder of political opponents, killing of religious leaders in 1974, gassing of Kurds in Halabja in 1988, the invasion of Kuwait in 1990 and the suppression of an uprising organized by Kurds and Shiites in the early 90’s. The sheer volume of the supporting material understandably made proving the charges beyond reasonable doubt almost impossible. Milosevic was charged not only with war crimes, crimes against humanity and grave breaches of the Geneva Convention among other things. The atrocities he was being accused of spread through three different geographical areas of the former Yugoslavian republic (Bosnia-Herzegovina, Croatia and Kosovo). Instead of holding separate trials it was decided that the single resulting trial should deal with all issues, further complicating things. In both cases, enough time had gone by. Memories and evidence were weak, witnesses were hard to find and the trace was rapidly fading. It would have been, for instance, easier to establish a strong case against Milosevic for the atrocities that took place in Kosovo as this was the most recent incident than to try and assign responsibility for war crimes in Croatia which had taken place more than a decade before the trial even begun.

One of the legal world’s maxims is that “justice must be done but it also should be seen that it is done”. Both trials have failed to pass the test this fundamental maxim poses. Their approach was distinctly different: one has opted for secrecy the other went overboard in its effort to ensure the world sees justice being done. The result however was roughly the same: an ineffective process.

When Milosevic’s trial begun in 2002, Richard May, the original presiding judge appeared to be overly cautious to demonstrate that all due care was taken to ensure the high profile defendant’s rights were respected. A highly acclaimed academic and experienced barrister in the United Kingdom, Mr. May stated that it was as much Mr. Milosevic’s right to opt to defend himself as it was to have a counsel. Nevertheless, allowing Milosevic to conduct his own defense complicated this difficult trial even more. Due to Milosevic’s ill health the process inevitably slowed down. Milosevic was allowed to occupy hours of the court’s time with endless Hollywood-style rhetoric speeches, to personally attack witnesses and to make comments and statements that would have led any ordinary defense counsel to be held for contempt of court. Appearing alone and defenseless in a stern courtroom with the designated attorneys acting as merely amici curiae tactfully out of sight, Milosevic brilliantly managed to use the courtroom as a political platform out of which he argued his case beyond the scope of a strictly criminal trial, implicating leaders and directly pointing a finger towards the West, urging them to own up to their own part of the blame. And all this he did in public.

Viewing the way Milosevic wisely took advantage of the relative freedom he was given to conduct his own defense, the Tribunal trying Saddam became all too aware of just how dangerous this affair could become. The last thing anyone involved wanted was for Saddam to be given a stand from which he could address the world. As a result, Saddam’s trial was conducted in a hurry and in as much secrecy as they could get away with. Audio added to the images initially broadcast was scarce and subjected to censorship. The judges offered no satisfactory comment on the pre-trial motions put forward by Saddam’s defense questioning the Tribunal’s impartiality, namely complaints regarding Ra’uf Abdel-Rhaman who was the presiding judge, the credibility of witnesses and the objectivity of the judges, undermining that way the entire process. Moreover, the defense team only had two weeks to respond to the November 5th, 2006, verdict condemning Saddam to death.

On December 31 2006 the images of the formerly dreaded Iraqi leader being taunted by his executioners before being led to his death sneaked into our homes and television sets. Saddam’s execution triggered a flood of academic debate and highlights perhaps the most fundamental difference between the two trials: the imposition of the death penalty.

As Saddam was charged with an array of offenses, ranging from genocide to grave breeches of the Geneva Convention, it was never clear whether he was being charged under domestic or international law. The Tribunal itself was an anomaly but nevertheless born within the domestic legal system under Government mandate. In this system however, those crimes had never actually been incorporated into the Iraqi Penal Code. It was only the infamous Law Number 10 which laid the foundation for the creation of the SICT which offered a detailed description of what constituted these crimes in its article 12. Nevertheless no specific penalty is assigned, as the norm would be. The power to determine the sentence is simply delegated to the Tribunal’s judges creating more legal chaos. Whether in favor or against the imposition of the death penalty in general, the academic community has been highly critical of the sentencing process in Saddam’s trial. Issues that came under scrutiny included whether the delegation which in effect turned the judges into legislators is legal and whether the judges even possessed the authority to impose the death penalty. One argument goes that since under Iraqi law the death penalty exists and is enforced for the offenses of murder and since Saddam’s trial was undertaken by the Iraqi authorities, it would not make much sense to assign a prison sentence for crimes of this magnitude. This position seems to be rejected both by public and academic opinion and the policy followed at respective international venues.

While in general opinions about the death penalty vary widely, it is the prevailing juristic opinion that the death penalty is not appropriate when it comes to sentencing defendants for crimes against humanity. The argument here is that capital punishment is per se inhuman and degrading. Just one look at precedents, statutes and decisions of international war crimes courts should point out the obvious: the death penalty is not permitted in any of the cases. Article 77 of the International Criminal Court excludes the death penalty altogether and the general understanding is that judges presiding over such Tribunals have an obligation to follow the precedents set by other relevant courts. The ICTY, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone all specifically reject the capital punishment as an option. In fact Saddam’s execution was the first one since the Military Tribunal in Nuremberg over sixty years ago.

There is no question about it. Both Saddam Hussein and Slobodan Milosevic were guilty of horrendous crimes and they were rightly brought to justice. The two most important trials of the century though were deeply flawed and the taste that they have left us with was more bitter than sweet. One of the prosecutors at Nuremberg, Justice Jackson once suggested that accountability for such atrocities should be resting with the individual, victor or vanquished. The West should take a very hard look upon its own share of responsibility whether that is turning a blind eye or actively supporting a potentially destructive regime if that suits the political needs du jour. Now more than ever it is the time to promote international cooperation and devise an acceptable mechanism in order to successfully resolve similar matters in the future. No nation should stand alone and no country should be more equal than others. The International Criminal Court initiative agreed upon in 1999 in Rome by no less than 120 nations was a positive step towards creating a universally acceptable authority over such crimes. The U.S. was one of the few nations that subsequently refused to ratify the Treaty. However, as times become more and more complicated, it should become clear that justice should not belong to one nation alone. The only way to prevent another Hitler or Saddam from committing similar offences is to liberate peace operations from politics and to promote cooperation among the nations that constitute humanity itself.

Faye Karavasili

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Author of the article holds LL.B. and LL.M. degrees in law from the University of Sussex, United Kingdom. She is an attorney practicing in Thessaloniki, Greece, and in Brussels, Belgium. She specializes in European Union law and criminal litigation.

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