Amir Taheri, Arab News Staff

PARIS, 12 December 2003 — After months of soul-searching it now seems certain that the Iraq Governing Council is prepared to put the fallen Baathist regime on trial. The decision is important because it ends the debate over who should hold the trials and where. The council seems confident enough that the Iraqis can handle the task themselves. No need for a court outside Iraq with foreign judges.

The proposed tribunal will sit in Baghdad with only Iraqi judges to try Saddam and his associates on a range of charges from corruption to crimes against humanity.

Although long overdue, the decision, taken by the Iraq Governing Council, has drawn criticism from the European Union and the United Nations. Their beef is that the tribunal would exclude the UN and ignore internationally accepted judicial norms and practices. The Governing Council should note the criticism but do what it thinks right.

The UN and the EU still refuse to recognize the Governing Council as a legitimate authority. Both are reluctant to acknowledge that the toppling of Saddam’s regime was an act of liberation for the Iraqi people. Thus neither could claim moral authority in telling the Iraqis what to do.

There is no reason why the Iraqis should trust the UN or the EU which did nothing to curb Saddam’s criminal activities.

Having said all that, the Governing Council should make sure that the tribunal conforms to the highest standards of justice.

To start with the tribunal must limit its scope to the former regime’s most senior officials, including Saddam.

On paper, the Saddamite regime boasted a wide base.

The Baath Party had more than one million members in three categories. Millions more were linked with it through trade unions, professional associations, and youth organizations. In despotic regimes such as Saddam’s it is impossible to live anything resembling a normal life without being sullied by the party in power.

Closer focus on the inner circle of the Saddamite regime, however, would reveal the narrowness of its decision-making apparatus. Saddam trusted no one, except, perhaps, his second son Qussay. He never informed anyone of major decisions, such as invading Iran in 1980 and annexing Kuwait in 1990, in advance.

His was more of a one-man-show than Stalin’s in the USSR.

The Governing Council would do well to narrow the scope of the tribunal to the trial of no more than a dozen or so senior figures, including Saddam. Their trial would, in fact, be the trial of the whole Baathist regime and its criminal record that spans 35 years.

Saddam, however, had a nasty habit. He obliged some of his principal aides to personally murder a real or imagined opponent, often in front of video cameras. His rationale was that a man who commits murder for the leader would be less likely to betray him. Those who have committed murder in that way should be referred to ordinary courts and tried as common criminals. My estimate is that fewer than 100 individuals may fall into this category.

Iraq will also have to deal with mid-ranking officials who helped keep the Baath machine in operation. These may number around 3,000 and could be dealt with through a special body, modeled on the post-apartheid South African “truth and reconciliation” commission.

Iraq does not need endless trials in which thousands of people are paraded in front of judges for months if not years.

For the rest, the council should prepare a general amnesty covering political crimes committed before the liberation. This would make it possible to bring non-political charges against individuals who might have been involved in other crimes, such as embezzlement, torture, rape, kidnapping, confiscation of private property, and racketeering.

The work of the special tribunal and the “truth and reconciliation” commission should take place in public. The tribunal should allow the leaders of the former regime the option of choosing defense lawyers, including from among European jurists. The tribunal should also invite testimony by foreign citizens, including the families of tens of thousands of Iranians who died in Saddam’s chemical attack, and hundreds of Kuwaitis who were murdered by Saddam’s henchmen in cold blood.

There is no reason why the UN, the EU and other interested foreign organizations should not send observers to the tribunal while the international media is allowed to cover the proceedings on the basis of clear rules. Whether or not the proceedings should be telecast live is still being debated. Some Iraqis believe that live telecasts could remind the nation of the show trials organized by Abdul-Karim Qassem, the first post-monarchy dictator of Iraq.

Telecasting the proceedings live will show the Iraqis, and the world at large, the true nature of one of the nastiest regimes in contemporary history. Others, however, insist that live telecasts would have an educational impact, both for the Iraqis themselves and the international public at large. There are still people, especially in the West, who refuse to believe that Saddam headed one of the nastiest regimes in human history.

Another issue debated in Iraq is whether or not to get the tribunal started before an elected government is in place. Some argue that the tribunal may be presented as an instrument of the occupying powers. But that claim could be countered by the fact that the tribunal will have only Iraqi judges.

Despite the obvious difficulties involved, it is best to start the tribunal as soon as possible. In an electoral atmosphere, the issue could become a partisan one, with some demanding a “sea of blood” to avenge the crimes of Baath while others preach limitless forgiveness. Such a debate could divide the people at a time it needs to remain united in a delicate period of transition. Holding the tribunal now would enable the interim government that is to be installed by the middle of next year to focus its attention on the future rather than the past.