Amir Taheri, Arab News Staff

PARIS, 17 December 2003 — When the Nazi leaders were captured by allied troops at the end of the World War II, Winston Churchill knew what had to be done.

“Hang the dogs,” he told his generals in Germany. But that was not to be.

Soon, Churchill was persuaded, partly by President Harry S. Truman, that it was better to try the Nazis and let the world learn about their crimes. That led to the Nuremberg trials which, in hindsight, could be regarded as the legal, prolongation of the World War II. Churchill, an amateur historian, might have realized the importance of a trial in shaping the narrative of a great European tragedy.

The Nuremberg trials were conducted in accordance with the best traditions of Anglo-Saxon law plus a great deal of innovation. The Nazis received as fair a hearing as they might have expected. And, in the end, only a few of them were sentenced to be hanged.

Nevertheless, the Nuremberg trials provided a limited narrative of the great tragedy. The mass murder of millions of Jews, gypsies and other “sub-humans”, the wholesale executions of democrats, socialists and communists, and the burning and looting of more than a dozen European countries conquered by the Nazis were not revealed in their full horror. Because the concept of crimes against humanity was still in its infancy, the Nazi leaders were treated as war prisoners, a status that bestowed on them a measure of dignity that they did not deserve.

The arrest of Saddam Hussein, the deposed Iraqi tyrant, last week, has put Nuremberg back into the news.

Some voices, mainly in those European countries that opposed the liberation of Iraq, have already denounced the idea of a Nuremberg style trial for the fallen leader. They have warned against subjecting Saddam Hussein to what they call “the victor’s justice.”

That position, as in many other cases, is based on a hatred of the United States and/or George W. Bush and has little to do with the issue of how best to deal with Saddam.

It is important not to allow that hatred to turn the issue of justice for Saddam into a fresh excuse for global polemics that have nothing to do with Iraq.

Attempts at transforming Saddam from a mass murderer into a victim are not limited to so-called “liberal” circles in Europe. The remnants of bankrupt pan-Arabism are also beating their chests about the supposedly “humiliating treatment” of Saddam by the GIs who found him in his hole.

As always the claim is that any trial of Saddam either by the Iraqis or by a military tribunal controlled by the US-led coalition would lead to “an explosion of the “Arab street” or a “clash of civilizations” between Islam and the West.

The truth, however, is that very few nostalgics of pan-Arabism, and even fewer Muslims, might regard Saddam, known to his people as “The Vampire”, as a representative either of Arab culture or of Islam.

The first thing to do is to establish Saddam’s status.

I think the Americans, once again, shot themselves in the foot when they declared Saddam to be a prisoner of war, a statement which they later tried to retract.

Should Saddam be regarded as a war prisoner? The best considered answer is: no.

Technically, the state of war came to an end when the Iraqi generals signed the instrument of surrender in Mosul on 28 April.

After that, Saddam, already in hiding, was a fugitive. Any involvement he may have had in subsequent attacks against the coalition, and Iraqi civilian targets, would count as acts not of war but of terrorism.

But even then, supposing we do treat Saddam as a prisoner of the recent war, could one ignore his record of rule in Iraq? The charges that might be brought against Saddam in the context of the recent war would amount to nothing when compared to his record that dates back to 1959 when he was involved in a plot to kill the then ruler of Iraq, Col. Abdul-Karim Kassem.

Any jurist would know that the balance of argument is in favor of having Saddam tried by those who suffered most from him, that is to say the people of Iraq.

And, yet, some self-styled Western democrats, and Arab nationalists, motivated, as already noted, by anti-Americanism, are campaigning to prevent Saddam’s trial in Iraq.

The same people never raised their voice when Saddam was gassing the Iraqis, burning their villages, and plundering their national treasure. They now demand for Saddam the justice they never demanded for the people of Iraq when he was in power.

Judging by their pronouncement, most of them don’t even think that Saddam should be tried because they believe that his overthrow was illegal in the first place.

Others, like the United Nations’ Secretary-General Kofi Annan and French Foreign Minister Dominique de Villepin, have an even more bizarre position. On the one hand they are calling for an immediate transfer of sovereignty to the Iraqis while, on the other hand, they claim that Iraq is not competent to try its fallen leader.

Those who still regret Saddam’s demise are suggesting two alternatives to his trial by Iraqis in Iraq.

The first is the International Criminal Court (ICC) which began work at The Hague last year.

But the ICC is not the proper authority to try Saddam, for two reasons. The first is that the ICC, has no retroactive jurisdiction, and only can try crimes committed since 1 July 2002, the date it came into being. And we know that Saddam committed most of his crimes, including the worst, long before that date.

The second reason why Saddam’s case cannot be referred to ICC is that the new court’s own rules. Under them a case could be tried there only if the courts of the nation directly concerned refuse to do so. In other words the ICC could try Saddam if Iraq did not.

But even then there is a further complication: Iraq is not a member of the ICC. Thus there is no legal mechanism for any Iraqi authority to hand Saddam over to the ICC.

The second option that Saddam’s apologists suggest is his trial by an international tribunal, like those set up for ex-Yugoslavia and Rwanda. Mention is often made of the case of Slobodan Milosevic, the Serbian ex-dictator tried by a special tribunal at The Hague.

Here, too, the argument holds no water. Milosevic is tried by a UN tribunal because Serbia did not want to try him. Also, the charges brought against him related to his crimes against Bosnians, Croats and Kosovars, not the Serbian people. Although Iran and Kuwait can bring legitimate charges against Saddam, the ex-tyrant’s prime victims were the peoples of Iraq.

In any case, setting up a special tribunal would require the approval of The United Nations’ Security Council.

But how could Russia, China and France, veto-holding powers, that still refuse to extend full recognition to the Iraq Governing Council, vote to set up a tribunal to try a man whom, technically speaking, they still regard as Iraq’s de jure president?

Helped by their allies, the people of Iraq could and should organize a proper trial for Saddam. They should ignore the views of those refused to help them liberate themselves from one of the most murderous regimes in modern history.

The debate that has just begun over what to do with Saddam is the continuation of the political and diplomatic battles that started almost two years ago when the idea of liberating Iraq was seriously raised in Washington.

The same characters who did not wish to see Saddam overthrown are now trying to get him out of Iraq, give him a tribune from which he can attack the US, and make sure that he lives a long life in a Dutch prison-villa where he could play backgammon with Milosevic.