While task forces hunted him throughout Iraq, a debate was carried on for months whether it would be more advantageous for the United States to take Saddam Hussein live or dead.
When Americans succeeded in locating his two sons, Uday and Qusay, in the north of the country and killed them in battle after a day of intense gunfire, it was thought that the Reis too would follow the same fate. Instead, on Sunday, December 14, he was captured alive, hiding in a sort of well in a farmhouse along the banks of the Tigris, and taken to a secret spot to be questioned by the CIA. Saddam’s arrest involves both benefits and disadvantages for the coalition. It was no doubt an advantage that he did not die heroically in battle, as that would have turned him from cruel tyrant to martyr for the Arab cause, a symbol of Islamic resistance against the new crusaders.

He would have thus continued to do harm for many years to come. Another advantage was being able to televise his ruffled image throughout the whole world, with a shock of hair and an unkempt beard, typical of an old tramp, thus contributing to demolish his myth among millions of Arabs, lead by Palestinians, who obstinately consider him a champion of their cause.
Influential voices were raised, especially in the Vatican, to criticize the public humiliation inflicted on him by broadcasting the pictures of the medical examination and toilet forced upon him after his capture. But these ‘regular kind-hearted’ people did not stop to consider how far this method could speed up the solution of the Iraqi crisis: in a world such as the Middle-Eastern one that recognizes only relations based on strength and power and has no pity on the defeated, the sight of the former autocrat ferreted out of a rat hole and examined for possible lice was probably more effective than numberless military operations in convincing the Iraqis that a dark era of their history had really come to a close, encouraging them to cooperate with the new regime. Possible disadvantages instead concern the future, especially the treatment that will bet suit the defeated dictator. No doubt Saddam will be tried, as he is a criminal, who can be reasonably compared to Hitler and Stalin, considering his direct or indirect responsibility in the death of millions of people.

The problem is who must try him, within what time limits, with what guarantees and especially under which law: according to a penal code that foresees death penalty, as the new Iraqi authorities would like and as president Bush too seems to wish, or under a system that excludes it, as requested by the UN Secretary General, Kofi Annan, and as Europeans, Japanese and almost all traditional American allies would also prefer? If Saddam is sentenced to life imprisonment, the decision must be made where to detain him so that he is not freed by a coup de main and he is effectively prevented from further active participation in politics.
Whatever the course the trial will take, the Reis will in fact be an awkward prisoner to the end of his days, just as Hitler would have been if he had not been killed in his bunker, just as Mussolini would have been if he had not been shot by communist partisans in Dongo or, more modestly, like the Romanian despot, Nicalae Ceausescu, if he had not been massacred by rebels. But before theorising a high security prison for the future, where Saddam can also be protected from Kurd or Shiite revenge in the aftermath, we need to solve the puzzle of the trial.
The first theory, based on a sort of Middle-Eastern Nuremberg with a tribunal of victors to judge the defeated despot and his accomplices (a good part of Iraqi key persons are now in the hands of the allies and it is highly probable that even the few who are on the run will soon be caught in the net), was discarded almost instantly as a trial of this sort would in fact stink of neo-colonialism, thus rousing the Arab world’s indignant reaction and consolidating the myth of Saddam the “new Saladin”, instead of demolishing it. Not even the solution to present the Reis to the new international tribunal established under the aegis of the United Nations for crimes against humanity can be applied, as it could not be formally authorized to judge crimes committed before its foundation and because neither the United States nor Iraq have recognized it. Other similar solutions that have been studied, such as special tribunals that judged war crimes committed in Ruanda and in the Republic of Sierra Leone or the AJA International court of justice, which is right now trying the Yugoslav dictator Slobodan Milosevic, present technical, political and legal drawbacks that are hard to overcome. Since, in a case such as this, justice must be done and it must also be felt, the best solution hence seems that the trial against Saddam should take place in Iraq, before an Iraqi tribunal, with some form of international supervision to guarantee the accused party’s rights are respected.

This is what the Iraqi interim governing council, which will be in office till next July 1, requests, and it is certainly what the population’s silent majority, anxious to turn a new leaf, wants. Thanks to a strange coincidence (but could it even be foresight?), just a few days before the tyrant’s arrest, the Council appointed a court to judge the crimes committed by the defeated regime. On principal, it also specified where the tribunal should meet, and the spot chosen was the Clock Tower, an octagonal building just over a kilometre’s distance from the former presidential palace. This is where Saddam collected gifts he received from throughout the world. However, this court’s possible composition gives rise to some perplexity. Iraqi magistrates will comprise those who worked under Saddam and those who were persecuted by him. Neither one nor the other can hence be entirely impartial. Into the bargain nobody has much experience in an issue such as this, which clearly involves international law and human rights.
Hence many are convinced that, to avoid the trial degenerating or taking a turn that is unacceptable to international public opinion, a supervising role should be performed by certain eminent and irreproachable foreign magistrates, who can even be appointed by the Iraqis themselves. Considering the complexity of the charges and the need to collect, in a short time, legally valid evidence against an impressive number of crimes, we hope they will also resort to international investigators and officers who have the necessary experience. In fact it has been found that only rarely did Saddam, with his well known cunning, sign provisions that could today be the object of a trial. Hence responsibilities that are historically and politically perfectly clear could be hard to prove from a legal viewpoint. We must probably rule out the possibility that the case could be prepared for trial in a few weeks, as some members of the interim government council hope, so as to close in time for the transfer of power to Iraqis scheduled for July 1, even with the conviction and public hanging of the accused.
A further complication is that Saddam did not only commit crimes against his people, within Iraqi boundaries, but also against the peoples of neighbouring countries, counting Iran, the victim of a war of aggression that numbered millions of dead, the invasion and plunder of Kuwait in 1991 and Israel, targeted both by Iraqi Scuds during the first gulf war and by the rich prizes the Reis offered families of Palestinian suicide bombers. Italy too has aired the intention to act as aggrieved party claiming damages, if it succeeds in proving Saddam’s responsibility in the Nassirya attack. The former Israeli prime minister, Shimon Peres, in particular, states that the trial must not only be an event conducted within Iraq, but also an occasion to universally stress the values of justice. As an example he mentions the trial against Adolf Eichmann, the Nazi key person who was sentenced to death in 1962 in Israel after being kidnapped in Argentina and publicly tried before the international press. But all comparisons made with acts of justice performed by the Jewish nation risk not being over palatable to Muslim world.
Anyhow, those who mean to charge Saddam will not stop at demanding his conviction. They will also claim for damages. If, besides the 750.000 USD cash found in his hideout, the immense sums misappropriated by him from the Iraqi treasury in the course of the years could be traced, some claims could even be partly met, despite being only symbolic sums when compared to the damages inflicted. It is instead inconceivable that nations who were victims of the Reis’ aggressions can retaliate against the new Iraqi regime, if we consider that the Americans even took the trouble to obtain European governments’ release of part of the former debts. The charges against Saddam are virtually endless, if we consider that personal cases too could be brought up at a trial.
Anyhow, at the end they must all be summarized in the following five files.
First. During his twenty-four years’ dictatorship, he ordered the illegal imprisonment, torture, rape and often disappearance of about 300.000 dissidents, most of whose relations who have survived, are ready to act as the aggrieved party claiming damages or at least to bear witness against him. The many mass graves found by coalition forces are also proof of the atrocities committed.
Second. Saddam systematically persecuted the races or tribal groups that could in some way attack his power or outshine the Sunnite minority that supported him. In particular we can lay the following at his door. The 1988 Anfal campaign against the Kurds, when one-hundred thousand civilians were exterminated with chemical weapons, four thousand villages were razed to the ground and one million individuals were deported. Ethnic cleansing targeted at tribes of Iranian origin in the north of the country, which counted another 50.000 victims. The cold-blooded massacre of 30.000 Kurds and Shiites, who tried to rebel against his authority after the first gulf war. Abandoned by the allies, they were the target of the Republican guard’s fire. The unreasonable persecution of the so-called “Marsh Arabs”, the inhabitants of regions between the Tigris and the Euphrates, to the north of Al-Basrah. Baath thugs even poisoned their water to punish them for refusing to follow Baghdad’s instructions.
Third. The invasion of Kuwait and the murders, abuse of power and plundering that followed, besides the disappearance of over 600 deported Kuwaiti citizens was documented after the liberation and will hence offer prosecutors quite solid grounds.
Fourth. The 1980 Iraqi attack against Iran and the eight years’ conflict that followed witnessed an almost unceasing flow of war crimes ranging from the use of chemical weapons to the shooting of thousands of prisoners. It will also be useful to recall these events in courts in order to involve the regime of Teheran, which considered Saddam an even worse enemy than the “Great American Satan”, in the Iraqi reconstruction. But European nations too could find these recollections embarrassing as they supported Saddam against the Ayatollah at the time by supplying part of his weapons and probably even forbidden weapons under the counter. In this case everyone is in the same boat, both the Americans who fought against the Reis and French and Germans who wanted to leave him in his place.
Fifth. The long war fought by Saddam against the Jewish state, especially after the famous Israeli raid that destroyed his plants in Osirak, where the Iraqi atomic bomb was to be created. There is no doubt whatsoever that, in this case too, the dictator followed a criminal conduct.
Besides, Israel is already preparing a detailed file on the despot’s involvement with Palestinian terrorist organizations. However the point is politically much more delicate, since Iraqi judges could fear to appear in the eyes of the Arab world as “allies of the Zionists”. We can be sure of one thing: notwithstanding who will be finally chosen to conduct the trial, the utmost will be done to give it the highest degree of publicity.
Evidence of Saddam’s crimes will in fact be useful both to strengthen Anglo-American topics in favour of a war that is today extremely contested and to facilitate the duties of the new Iraqi rulers, who are busy counteracting the approval the overthrown Reis still enjoys among certain population categories. Considering its international impact, even as a deterrent to future aspiring tyrants, the trial against Saddam could really become the trial of the century. This is probably why many ‘antagonist’ lawyers seeking publicity have offered to act as defending counsel, convinced they can also cause much annoyance to the prosecutors, following Milosevic’s line of action.
Someone will finally be appointed, unless Saddam means to act as his own advocate or refuses to recognize the court’s legality. If we wish the trial to have a political and educational function, without being a mere show, we must ensure it is exemplary from every viewpoint, in other words it must also show our legal civilization and system’s superiority to people who, only too often still believe in Sharia. Traslated by Interpres