Options for Trying Saddam Hussein for International Crimes

Options for Trying Saddam Hussein for International Crimes

Order Code RS21705
Updated April 7, 2004
CRS Report for Congress
Received through the CRS Web
Options for Trying Saddam Hussein for
International Crimes
Jennifer K. Elsea
Legislative Attorney
American Law Division
Summary
While U.S. courts do not appear to have jurisdiction under U.S. law for most of the
crimes alleged to have been committed by Saddam Hussein, several options are
available for prosecuting him for crimes against humanity, genocide, and war crimes.
Precedents include national courts and national and international military tribunals
similar to those used in the aftermath of World War II, an international ad hoc tribunal
similar to those set up by the U.N. to adjudicate atrocities in the former Yugoslavia and
Rwanda, and “hybrid” tribunals — which combine national and international elements.
The Bush Administration supports prosecution by a special Iraqi court. Under the
Geneva Conventions, if the United States were to turn Hussein over to the Iraqi interim
government or another detaining power, it may remain responsible for assuring that the
receiving power observe the safeguards in the Conventions.
The December 13, 2003 capture of former Iraqi President Saddam Hussein brings
a new sense of urgency to questions regarding his criminal responsibility for past
atrocities — where can he be tried and for which crimes?1 An answer to these questions
depends on the authority and legitimacy of the chosen venue and the scope of its
jurisdiction under international law. This report discusses the options and examines the
application of the Geneva Conventions to war crimes trials.
Background
The Coalition Provisional Authority (CPA)2 delegated authority to the Iraqi
Governing Council (IGC) to create a special tribunal to try Saddam Hussein and other
1 These issues were explored in greater depth by the Senate in April, 2003. See Prosecuting Iraqi
War Crimes: A Consideration of the Different Forum Options: Hearing Before the Senate Comm.
on Governmental Affairs, 108th Cong. (2003) [hereinafter Hearings].
2 See CRS Report RL31339, Iraq: U.S. Regime Change Efforts and Post-Saddam Governance.
Congressional Research Service ˜ The Library of Congress

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Iraqis accused of atrocities and war crimes.3 On December 10, 2003, the IGC established
the Iraqi Special Tribunal for Crimes Against Humanity (“IST”), which will have
jurisdiction to try Iraqi nationals or residents for certain crimes committed between July
17, 1968 and May 1, 2003.4 Article 48 of the interim constitution, adopted March 8,
2004, confirms the exclusive jurisdiction of the IST to try such crimes, notwithstanding
another provision that proscribes “special or exceptional courts.” The IST is an
independent entity whose judges and prosecutors are appointed by the IGC.(or,
presumably, its successor) (IST Stat. arts. 1(a) and 5(c).) The Tribunals will consist of
panels of five judges for trials and nine judges for the Appeals Chamber. (Id. art. 4.)
There will also be up to twenty Tribunal Investigative Judges with the power to issue
subpoenas, arrest warrants, and indictments of suspects. (Id. art. 7.) The rules for the IST
contemplate the participation of international judges and prosecutors primarily in an
advisory capacity (id. arts. 6(b), 7(n) and 8(j)), although the IGC, “if it deems necessary,
can appoint non-Iraqi judges who have experience in the crimes encompassed in th[e]
statute, and who shall be persons of high moral character, impartiality and integrity.” (Id.
art. 4(d).) The Bush Administration has not officially agreed to hand over any former
regime members to the IGC for trial, but has reportedly dispatched a team of experts from
the Justice Department to assist in the collection and evaluation of evidence.5
Some observers believe the Iraqi Special Court will lack legitimacy because the IGC,
whose members are appointed by the Coalition Provisional Authority (CPA), may be
regarded by some as a U.S. surrogate rather than a sovereign government,6 or because they
believe the Iraqi judiciary to be incapable of convening a court that will be regarded as
3 See Coalition Provisional Authority Order Number 48, Doc. CPA/ORD/9 Dec 2003/48,
available at [http://www.cpa-iraq.org/regulations][hereinafter “CPA Order 48"] (citing authority
of Ambassador Bremer as Administrator of the CPA “and under the laws and usages of war, and
consistent with relevant U.N. Security Council resolutions. . . .”). CPA Order 48 authorizes the
IGC to promulgate a statute, elements of crimes to be tried, and rules of procedure, all in
coordination with the CPA. The CPA Administrator reserves the authority to alter these
documents “if required in the interests of security”). Id. § 1(6). In case of conflict between CPA
regulations and a ruling or judgment of the IST, the CPA promulgation will prevail. Id. § 2(3).
The order expires on the establishment of a new government. Id. § 3. It is unclear whether the
U.S. government will retain authority allocated to the CPA after the planned transfer of
sovereignty on June, 30, 2004. See generally CRS Report RL31339.
4 See The Statute of the Iraqi Special Tribunal (2003)[hereinafter “IST Stat.”], available at
[http://www.cpa-iraq.org/audio/20031210_Dec10_Special_Tribunal.htm]. The crimes include
genocide, crimes against humanity, and war crimes, as well as violations of certain Iraqi laws,
including manipulation of the judiciary, the wastage of national resources and the squandering
of public assets, abuse of power, and the “pursuit of policies that may lead to the threat of war
or the use of the armed forces of Iraq against an Arab country.” Id. art. 14.
5 Adam Entous, US steps up plans for tribunal on Iraq war crimes, REUTERS, Apr. 6, 2004.
6 The U.N. Security Council (UNSC) has determined that the Iraqi Governing Council and its
ministers are the “principal bodies of the Iraqi interim administration,” which “embodies the
sovereignty of the State of Iraq during the transitional period.” UNSC Res. 1511 para. 4, U.N.
Doc. S/Res/1511 (2003). However, the interim government was not elected by the people of Iraq
in accordance with their UNSC-recognized right to govern themselves. See id. Furthermore, the
UNSC “underscores . . . the temporary nature of the exercise by the Coalition Provisional
Authority (Authority) of the specific responsibilities, authorities, and obligations under
applicable international law recognized and set forth in resolution 1483 (2003).” Id. para. 1.

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fair and impartial with regard to the crimes of the prior regime.7 Accordingly, some
advocate the establishment of a court with an international composition, possibly under
the auspices of the United Nations. The newly created International Criminal Court (ICC)
is not a likely venue because its jurisdiction is limited to crimes committed after July 1,
2002, and because Iraq is not a party.8
War Crimes Tribunals: History and Development
Prior to the twentieth century, war crimes were generally tried, if tried at all, by
belligerent States in their own national courts or special military tribunals. After World
War I, the Allies appointed a 15-member commission to inquire into the legal liability of
those responsible for the war and the numerous breaches of the law of war that it
occasioned. It recommended the establishment of an international military tribunal to
prosecute those accused of war crimes and crimes against humanity, including Kaiser
Wilhelm. The United States objected to trying the Kaiser because it wished to avoid a
precedent that would allow the trial of heads of state for sovereign acts. After Germany
refused to comply with the locally unpopular provision of the peace treaty requiring it to
turn over accused war criminals to the Allied forces for trial, a compromise was reached
in which Germany agreed to prosecute those persons in its national courts.9 Of 901 cases
referred to the German Supreme Court for trial at Leipzig, only 13 were convicted.10
Because German nationalism appeared to have hindered the earnest prosecution of war
criminals, the results were largely seen as a failure.11
International Military Tribunals. Precedent from the Second World War could
provide a model for the United States and its coalition partners to establish a joint military
tribunal to prosecute war crimes and possibly crimes against humanity committed by
Saddam Hussein and his officers. After World War II, the Allies applied lessons learned
at Leipzig and formed special international tribunals for the European and Asian theaters.
The United States, France, Great Britain and the Soviet Union together established the
International Military Tribunal (IMT) at Nuremberg for the trial of major war criminals.12
The International Military Tribunal for the Far East (IMTFE) in Tokyo was established
by a Special Proclamation of General Douglas MacArthur as the Supreme Commander
7 See, e.g., Douglas W. Cassel, Jr., What Kind of Trial Should Saddam Have?, CHI. DAILY L.
BULL., Dec. 24, 2003, at 5 (2003); Hearings, supra note 1, at 66 (Response of Ambassador David
J. Scheffer)(noting that the Geneva Conventions may constrain the ability of the interim
government to amend Iraqi penal laws).
8 The ICC could prosecute crimes committed in Iraq by Iraqis after July 1, 2002, only if Iraq
consents or if the UNSC refers a case to the ICC. See CRS Report RL31495, U.S. Policy
Regarding the International Criminal Court. Because of the United States’ opposition to the ICC
and its power to veto either eventuality, trial at the ICC for these crimes is unlikely.
9 See id. at 46.
10 See id. at 49.
11 See id. at 51-52.
12 See Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis Powers and Charter of the International Military Tribunal, 1945, 82 U.N.T.S. 279
[hereinafter “London Charter”].

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in the Far East for the Allied Powers.13 In Europe, many national military tribunals were
established to try the less high-profile war crimes and crimes against humanity.
The jurisdiction of the Nuremberg Tribunal was based on universally applicable
international law regulating armed conflict, and its authority was based on the combined
sovereignty of the Allies and Germany’s unconditional surrender.14 While crimes against
humanity were defined in the London Charter to include peacetime violations,15 the
tribunal exercised jurisdiction over crimes committed by the Nazi regime against civilians
only where those crimes were connected to the planning, preparation, initiation, or waging
of an aggressive war.16 Thus, while the Nuremberg Tribunal provides precedent for
holding individuals responsible for violations of international law, it does not provide a
basis for the Coalition nations to assert jurisdiction over crimes against humanity
committed on Iraqi territory that were not connected to an armed conflict. However,
American military tribunals in Europe asserted broader jurisdiction over crimes against
humanity, severing the need for any connection with war crimes in all but one relevant
case.17
Ad Hoc International Courts. The U.N. Security Council (UNSC), acting under
its Chapter VII authority of the U.N. Charter, could establish an ad hoc criminal court
similar to the International Criminal Tribunal for the former Yugoslavia (ICTY) or the
International Criminal Tribunal for Rwanda (ICTR) established in the 1990s.18 The UNSC
has adopted numerous resolutions with respect to the situation in Iraq and Kuwait since
Iraq’s invasion of its neighbor in 1990, and remains actively seized of the matter. UNSC
Resolution 1483 affirmed the need for accountability for the crimes committed by
Saddam Hussein’s regime, but did not prescribe a venue. A new resolution creating an
international court for Iraq would require the support (or at least acquiescence) of the five
permanent members of the UNSC, including the United States. Support for a new ad hoc
tribunal may not be forthcoming because of the lengthy and costly nature of the
procedures for the ICTY and the ICTR, and the lack of consensus on the death penalty.19
Hybrid Tribunals. Another option for trying Iraqis accused of international crimes
might be to create a hybrid tribunal similar to the Special Court for Sierra Leone. This
13 Charter of the International Military Tribunal for the Far East, 1946, T.I.A.S. No. 1589.
14 See Matthew Lippman, Crimes Against Humanity, 17 B.C. THIRD WORLD L.J. 171, 238 (1997).
15 See London Charter art. 6(c) (defining crimes against humanity to include “murder,
extermination, enslavement, deportation, and other inhumane acts committed against any civilian
population, before or during the war; or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or
not in violation of the domestic law of the country where perpetrated”).
16 See Lippman, supra note 14, at 192-93 (noting that crimes committed against German Jews and
others prior to 1939 were not cognizable under the London Charter).
17 See id. at 219-20. British military tribunals also asserted jurisdiction over genocide despite the
absence of any nexus to the crime, explicitly invoking universal jurisdiction. Id. at 239.
18 See CRS Report RL30864, Yugoslavia War Crimes Tribunal: Current Issues for Congress.
19 See Dianne Orentlicher, Venues for Prosecuting Saddam Hussein: The Legal Framework, Am.
Soc’y Int’l L. Insight No. 124, available at [http://www.asil.org/insights/insigh124.htm].

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court is the product of an agreement between the United Nations and the government of
Sierra Leone. Similar hybrid tribunals that were created by U.N. administering authorities
are operating in East Timor20 and Kosovo,21 and the United Nations has agreed to
participate in a hybrid tribunal in Cambodia to punish perpetrators of genocide. The
procedures and jurisdiction of hybrid tribunals are set by agreement between the host
government and the United Nations, and a hybrid tribunal for Iraq could be tailored to the
particular circumstances in Iraq. However, because the IGC has indicated it wishes to
reserve its prerogative to allow the death penalty, it may be difficult to gain the support
of U.N. members who are opposed to the death penalty.
The Geneva Conventions and War Crimes Tribunals
Saddam Hussein and other Iraqis detained by coalition forces are protected by the
1949 Geneva Conventions.22 The protections vary according to the status of the
individual detained, and include provisions for the trial and punishment of detainees,
particularly with respect to grave breaches of the Conventions. As High Contracting
Parties to the Conventions and as Detaining Powers within their meaning, the coalition
governments are obligated to “search for persons alleged to have committed, or to have
ordered to be committed, . . . grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts.” (GPW art. 129.) Grave breaches include “wilful
killing, torture or inhuman treatment, including biological experiments, wilfully causing
great suffering or serious injury to body or health, compelling a prisoner of war to serve
in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of
fair and regular trial “ in connection with an armed conflict. (GPW art. 130.)
The Detaining Power also has the option to “hand such persons over for trial to
another High Contracting Party concerned, provided such High Contracting Party has
20 Security Council Resolution 1272 (1999) authorized the United Nations Transitional
Administration of East Timor (UNTAET), which administered the courts there until Timor Leste
achieved statehood in 2002. Special panels of one of the district courts, comprised of two
international judges and one East Timorese judge, have exclusive jurisdiction over genocide, war
crimes, crimes against humanity, and other serious offences. UNTAET Regulation 2000/15, Doc.
No. UNTAET/REG/2000/15 (2000). UNTAET also established an independent Commission for
Reception, Truth and Reconciliation to investigate human rights violations.
21 U.N. Security Council Resolution 1244 created the U.N. Interim Administration Mission in
Kosovo (UNMIK) with authority to administer an interim justice system as part of its nation-
building mandate. The interim courts handle atrocity cases of less severity than those tried at the
ICTY, which lacks the capacity to try all such cases. See Laura A. Dickinson, The Relationship
Between Hybrid Courts and International Courts: The Case of Kosovo, 37 NEW ENG. L. REV.
1059 (2003). International prosecutors and judges have been appointed in some cases due to
concern that local officials did not act impartially in cases of crimes against minorities. See
Organization for Security and Cooperation in Europe, Report 9 — On the Administration Of
Justice 6 (2002) available at [http://www.osce.org/kosovo/documents/reports/justice/
Report9_eng.pdf].
22 Of primary importance are the Third and Fourth Geneva Conventions of 1949. (Third) Geneva
Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316 [hereinafter “GPW”];
(Fourth) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6
U.S.T. 3516 [hereinafter “GC”].

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made out a prima facie case.” (GPW art. 129.) However, if the accused is a prisoner of
war (POW), he may only be transferred “after the Detaining Power has satisfied itself of
the willingness and ability of such transferee Power to apply the Convention.” (GPW art.
12.) If the transferee Power “fails to carry out the provisions of the Convention in any
important respect, the Power by whom the prisoners of war were transferred shall . . . take
effective measures to correct the situation or shall request the return of the prisoners of
war.” (Id.) Thus, if Iraqi POWs are turned over to the Iraqi interim government, coalition
forces may remain responsible for ensuring that they are treated in accordance with the
Conventions, including that any trials adhere to the same procedures applied by the
Detaining Power to its own military personnel and otherwise comply with the safeguards
of the GPW, including death penalty provisions. (GPW art. 102.)
The requirements are similar for civilian “Protected Persons” (“PP”) within the
meaning of the Fourth Geneva Convention (“GC”). Like POWs, PPs may only be
transferred to another Party who will observe the requirements of the Conventions, except
that a PP may be repatriated to his own country after hostilities have ceased. (GC art. 45.)
The GC also contains a number of procedural safeguards for PPs accused of crimes. They
may be sentenced by the Occupying Power only after a “regular trial.” (GC art. 71.)
There is an obligation to try persons accused of grave breaches (enumerated in GC art.
147), or hand them over to another High Contracting Party with the ability to pursue a
prosecution in accordance with the protections of the Conventions. (Id.) Thus, the United
States could try Saddam Hussein and others accused of war crimes in federal court or by
military court-martial (with respect to POWs) for grave breaches of the Geneva
Conventions. The War Crimes Act of 199623 provides federal court jurisdiction to try war
crimes perpetrated by or against U.S. nationals. For other international crimes not related
to any armed conflict, under the theory of “universal jurisdiction,”24 any country that can
exercise personal jurisdiction over the alleged perpetrator may do so, at least where such
jurisdiction would be reasonable and the applicable domestic laws provide jurisdiction.
The Genocide Convention Implementation Act of 198725 would allow prosecution in U.S.
federal courts of genocidal acts only if they were committed by a U.S. national or within
the United States. U.S. federal courts are not now empowered to try non-U.S. nationals
for crimes against humanity committed overseas, unless the conduct amounts to torture.26
Thus, in order to try Saddam in federal court for his alleged genocide or crimes against
humanity against the Iraqi people, new legislation would be required.27
23 P.L. 104-192, 110 Stat. 2104, 18 U.S.C. § 2441.
24 The “universality principle” defines a category of crimes that are so egregious as to be the
object of universal concern, regardless of the situs of the offense and the nationalities of the
offenders or victims. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES § 404 (1986).
25 P.L. 100-606, 102 Stat. 3045, 18 U.S.C. §§ 1091-93.
26 P.L. 103-236 § 506, 108 Stat. 463, 18 U.S.C. §§ 2340 -2340B.
27 Because these crimes may be covered under the theory of universal jurisdiction, such
legislation would not necessarily be invalid as an ex post facto criminal prohibition, though
defense counsel could be expected to raise such a defense.