By Mark Leon Goldberg
The American Prospect
Web Exclusive: 12.10.04
Monday marks the one-year anniversary of Saddam Hussein’s capture. The day after the capture, December 14, 2003, the Coalition Provisional Authoritx’s chief, Paul Bremer exclaimed, “We got him!? The phrase was reprinted in headlines throughout the world. But now that we got him, a surprising dilemma has surfaced: Do we want him convicted? On one charge, at least, doing so might have lasting repercussions for the United States down the road.
Long before troops from the U.S. Armx’s 4th Infantry Division rooted Hussein out of his “spider hole? in Tikrit, though, plans were already well under way to set up a tribunal to prosecute him and his Baath Party co-conspirators for crimes committed during their brutal 36-year reign. Initially, Pentagon lawyers and civilian legal experts borrowed heavily from the statutes of the International Criminal Court (ICC), and the war-crimes tribunals for the former Yugoslavia, Rwanda, and Sierra Leone to piece together a draft statute for the Iraqi Special Tribunal to try Hussein and his cohorts.
In its original inception, the draft that the Pentagon provided the Iraqi Governing Council included war crimes, genocide, and crimes against humanity as punishable offenses. Purposefully left out of the draft, and excluded from the jurisdictions of these existing tribunals, was the crime of aggression. In customary international law, aggression is generally understood as the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state when not in self-defense or without the United Nations Security Council invoking Article VII of the UN Charter (which authorizes the use of force to maintain global peace and security).
Though the crime of aggression played a central role in the Nuremberg trials for Nazi leaders, it has been a touchy subject for the United States since the end of the Cold War. For better (think Kosovo) or worse (Iraq), the United States is more likely than any other country to apply armed force in contravention of the United Nations. For that reason, the United States has conscientiously sought to avoid making aggression a more clearly defined war crime. In the late 1990s, Americans dispatched by President Clinton to negotiate the statute of ICC, for example, ran into some trouble when their European counterparts insisted on including aggression in the ICC?s charter. To save the entire deliberations, both sides agreed to punt on the issue and negotiate a definition in 2009.
The Iraqi Special Tribunal however, is a collaborative process between the United States and Iraq in which an ostensibly sovereign Iraq has final say over what to do with its war criminals. When presented with the draft statute, Salem Chalabi, then the president of the tribunal, insisted that the final version include a catchall provision for crimes recognized by Iraqi national law. This is not uncommon in international criminal law; the statute of the Special Court for Sierra Leone contains a similar provision.
It turned out to be a fateful decision. Because what the Pentagon lawyers apparently didn’t know at the time is that Iraq has had a law on the books since the 1950s that prohibits aggressive war. As it’s written, the law proscribes the “pursuit of policies” that may lead to war against a fellow Arab country. Now, because he invaded Kuwait, it appears that Hussein will be the first person since Nuremberg to be tried for the crime of aggression
This course was affirmed in October when the Iraqi judges and magistrates who will try cases before the Iraqi Special Tribunal met under the same roof for the first time. Michael Scharf, director of the Frederick K. Cox International Law Center at the Case Western Reserve University School of Law, attended the meeting, which for security concerns was held in secret in London. At the meeting, Scharf told me, a consensus was reached that the Iraqi judges would try Hussein for the crime of aggression.
As aggression has not been applied as a war crime since Nuremberg, the only available models for prosecution or defense strategy stem from those proceedings. At the London conference, Scharf lectured the Iraqi judges on Hussein’s possible defense strategy. Scharf expects that Hussein may use a tu quoque (?you also?) defense in which the conduct of the accused is defended by turning the critique back against the accuser. In practice, this amounts to a “two wrongs obscure what it means to be right? line of reasoning.
As Scharf explained to the judges, this defense was effective for certain Nazis on trial. The Nazi naval commander Karl Doenitz, for example, was able to convince the Nuremberg tribunal that he could not be convicted of waging unrestricted submarine warfare because U.S. Admiral Chester Nimitz had done the same thing in the Pacific theater — and therefore the law outlawing such acts was unclear and unenforceable. Similarly, Scharf told me, “Hussein may argue that the debate over the legality of the U.S. invasion of Iraq indicates that there is no international agreement on the definition of aggressive war,” a conclusion that could exonerate Hussein for invading Kuwait in 1990.
Hussein will almost certainly be found guilty for crimes against humanity. But according to Mark Vlasic, a law professor and former prosecution lawyer at the Yugoslav tribunal, the genocide and aggression charges lack great precedent and will take center stage at the Iraqi Special Tribunal. Indeed, the judges? rule on aggression will set an extremely important precedent in international law — precisely what the United States and other powers have been seeking to avoid for decades.
Some close observers of the Iraqi Special Tribunal, such as Lieutenant Colonel Michael Newton, a law professor at West Point, consider the inclusion of aggression as proof that this is an Iraqi-driven process, with Americans playing only minor roles. To others, though, the fact that aggression is on the table looks more like a gaffe; it would be mighty embarrassing if Iraqi judges acquit Hussein for his aggressive war against Kuwait precisely because, by invading Iraq, the United States further obscured the definition of aggressive war.
Either way, this is a rather awkward situation for the United States. On the one hand, conventional wisdom would have it that the United States wants to see Hussein tried and convicted for all of his crimes. But insofar as U.S. prudential interests are inherently hostile to establishing case law on aggression, the authors of the Bush doctrine of preemptive war may not be overly disappointed if Hussein beats this particular rap on the grounds that the crime is not adequately defined to establish criminal liability — or, better yet, if he never faces the charge at all.
Mark Leon Goldberg is a Prospect writing fellow.