An Unused American Tactic: Trying Saddam for War Crimes
But arresting him, setting up a tribunal would be difficult
KUWAIT CITY — Amid worldwide debate over the effectiveness of bombing as a means to pressure Saddam Hussein, experts say the US and its allies are overlooking a weapon of unlimited power that could help turn the tide against the Iraqi leader.
International law specialists and human rights activists say the US could deliver a blow far more damaging to the Iraqi leader than any bomb, short of a direct hit on Saddam's Baghdad residence du jour.
These experts advocate convening a special international tribunal to prosecute the Iraqi leader for alleged war crimes, crimes against humanity, and genocide.
Given Saddam's notoriety it is surprising to many analysts that there has been virtually no recent discussion of attempting to punish the Iraqi leader for his alleged major violations of international law during the past decade.
The issue arises as the Clinton administration faces growing criticism of its anticipated military assault on Iraq and concerns that widespread American and British bombing might result in heavy Iraqi civilian casualties.
International organizations, including the United Nations, claim they have gathered substantial evidence of Iraqi use of chemical weapons in the 1980s and a systematic campaign to eradicate Iraq's Kurdish population. Here in Kuwait, which endured seven months of atrocities following the 1990 Iraqi invasion, the idea of seeing Saddam stand trial is greeted with great enthusiasm.
"If they catch Saddam Hussein and they actually get rid of him, I will feel very happy," says Dawood Al-Oraier, a Kuwait refinery worker whose sister died under mysterious circumstances during the Iraqi occupation.
Former President George Bush once compared Saddam to Hitler. But his administration never took the next step to set up the 1990s equivalent of a Nuremberg-type tribunal.
President Clinton's secretary of state, Madeleine Albright, has expressed interest in moving against Saddam in the international legal arena, but she has yet to take any public action.
Some analysts say any push to indict and convict Saddam would face opposition from United Nations Security Council members Russia and China. And even the US might balk at the idea out of fear of setting a precedent that could leave American peacekeeping forces vulnerable to politically-motivated charges of war crimes.
International law experts applaud Mr. Clinton for taking a firm stand against the proliferation of weapons of mass destruction during the current crisis with Iraq. But they also say that when a world leader actually uses those weapons, the international community has an obligation under long-established treaties to investigate and punish that criminal conduct.
"After World War II we said, 'Never again,' " says Diane Orentlicher, a war crimes expert and law professor at American University in Washington. "There are certain crimes that can't be countenanced, and if we do not condemn them, we have,in effect, condoned them."
Analysts say it remains unclear to what extent the Clinton administration has pushed for an international investigation of Saddam. But they suggest the same Security Council members who now oppose military action against Iraq are likely to object to a tribunal.
"There is some question of how sincere the US proposal was, but it illustrates the problem where a quiet veto in the Security Council is able to prevent an issue from going forward," says William Pace, executive director of the World Federalist Movement, an international peace group based in New York.
"Up until now any talk about holding Saddam Hussein accountable for [war] crimes has all fallen victim to geopolitics," says Ms. Orentlicher. "There hasn't been the kind of convergence of geopolitical forces that create the groundswell of support for these kinds of efforts."
Part of the reason some nations might be reluctant to press for a criminal investigation of Saddam is that a wide-ranging probe could uncover embarrassing details of close cooperation of certain countries - including the US, Russia, and France - at the same time Iraq was using chemical weapons, developing long-range missiles with chemical warheads, and researching and producing biological weapons.
For example, during the Reagan administration the US provided extensive satellite-generated military intelligence reflecting Iranian troop movements during a critical phase of the Iran-Iraq war in 1987 and 1988. Iraq reportedly used that information to help direct its chemical weapons attacks, actions Washington chose to largely ignore at the time. Washington's big concern in the late 1980s was that Iran might defeat Iraq and the entire oil-rich Gulf would suddenly face a looming Islamic threat from Tehran.
Critics of the tribunal approach say even if Saddam were convicted in absentia there would be almost no chance of arresting him. If US bombs can't find him, how would international bounty hunters, they ask?
They also say in some cases involving weapons of mass destruction relying on the law is not an acceptable alternative to swift, decisive military action. To get bogged down in courtroom battles might further endanger global security, these analysts say. "Nuremberg was not a substitute for D-day," says Ken Anderson, a Washington-based human rights activist and American University law professor who investigated alleged genocide waged against Iraqi Kurds.
In recent years special tribunals were set up to prosecute war crimes in the he former Yugoslavia and Rwanda.
In addition to those two special cases, efforts are under way to create an international criminal court that would have jurisdiction to prosecute future instances of genocide and war crimes. Details and groundwork for the court are set to be hammered out in June and July.