What to do with Saddam if we catch him?

This story in the Financial Times asks the question "what are we to do with Saddam if we catch him alive?"

The US government's decision will tell us whether any wisdom has been gleaned from the army's experience more than half a century ago. It has a number of options.

First, it could shoot him. This was General George Patton's choice for dealing with captured Nazis: line them up, tell them what they did and pull the trigger. Was there any question of their guilt? One look inside a concentration camp was enough to know. Why dignify such behaviour with trials? The drawback is that this option contradicts the principles of democracy which the Bush administration says its invasion is intended to preserve.

Second, it could try him before an international court. The charges against Mr Hussein would include violations across several borders, which would justify his trial before an international tribunal similar to Nuremberg. Like Nuremberg, however, such a court would be vulnerable to charges of "victor's justice" - guided not by due process but by a desire for revenge.

Nuremberg's detractors were quick to point out that Russia's crimes were as reprehensible as Germany's. How did Stalin's regime qualify to sit on the tribunal and judge Germany? And did transgressions by the British and US, such as the bombing of Dresden, not throw doubt on their ability to judge a defeated enemy fairly? For all they achieved, the Nuremberg trials remain compromised by these questions.

Third, it could turn him over to his own people. This is unlikely. If compromised by Mr Hussein's forces, such a court might vindicate him and find the US guilty of an illegal invasion. At the end of the first world war, the US turned German prisoners over to the German government for trial. A handful were tried, the rest set free. The US would not risk a repeat of that fiasco.

Fourth, it could try him before a military tribunal. This is the most likely scenario. It has precedent. Between November 1945 and August 1948 nearly 2,000 of Hitler's henchmen - administrators of concentration camps where the "final solution" was implemented - were tried by such a tribunal at Dachau, 65 miles south of Nuremberg, in one of the largest yet least known series of war trials in history.

Tribunals, however, face tricky procedural issues: how far down the chain of command would guilt extend? What rights would the accused be granted in preparing their own defence? What charges might be brought, on what kind of evidence? This panoply of legal challenges has plagued such efforts in the past.

In my mind, the best option is probably the much-reviled International Criminal Court. It would provide open proceedings that the world can see - you know, they way things are done in a free society and all that - and the Bush administration's contempt for it would be a strong defense against charges that it's just a puppet of the American government. Naturally, I don't expect this to happen.

Obviously, things will be much easier for Team Bush if Saddam and his inner circle are considerate enough to be casualties of combat. No one will bother noticing a military tribunal for lower-ranking functionaries, at least as long as we don't get too zealous about it. I'll say this: The longer this invasion takes, the less likely Team Bush is to be in any way magnanimous in victory.

Posted by Charles Kuffner on March 25, 2003 to Iraq attack | TrackBack