It wasn’t me: Former Iraqi President Saddam Hussein responds to a list of charges against him in a Baghdad courtroom in 2004. Photo by Karen Ballard-Pool/Getty Images

MEMORANDUM

TO: Ibrahim al-Jafaari, Prime Minister of Iraq

FROM: M. Cherif Bassiouni

RE: Prosecuting Saddam Hussein

As you know all too well, the Iraqi people suffered profoundly under the rule of Saddam Hussein. He and his Baath regime cronies are responsible for the deaths of as many as half a million Iraqis and a vast array of human rights violations. In crushing the insurgencies in the Kurdish north, the regime used chemical weapons that may have killed as many as 5,000 innocent civilians. In the south, tens of thousands of Shia and civilians who inhabit the marshlands on the border of Iran were killed. Two wars of aggression, against Iran and Kuwait, produced thousands of victims in these two countries and the deaths of an estimated 1 million Iraqis. The victims and their surviving families and relatives expect justice, and history has to record these atrocities.

Trying the perpetrators, establishing a historical record, and responding to the needs of victims are essential tasks for a new Iraq. Unaddressed wrongs in any society do not disappear. They linger in the limbo of collective memory and, in time, lead to revenge. The Shia community in Iraq has been restrained thus far in the face of violence and provocations by the mainly Sunni insurgents. But your government is adamant that prosecutions must proceed and that punishments must be severe. If the process of dispensing justice stumbles, a wave of revenge killings could follow.

Unfortunately, the trials of Saddam and his associates are in serious danger of appearing illegitimate to the Iraqi population and the broader Arab and Muslim worlds. The Iraqi Special Tribunal (IST), which will try Saddam and other high regime officials, has serious legal, political, and public relations defects. A trial that could be one of the most important in Arab history now may be seen as little more than an American show trial and an exercise in victor’s justice. Worse, Saddam may be able to turn the tribunal into a spectacle and generate sympathy in Iraq and the Muslim world. It is useful to remember how Nazi leader Hermann Göring stole the show at Nuremberg for two days and how former Yugoslav President Slobodan Milosevic has managed to drag out his case for nearly two years at the International Criminal Tribunal for the Former Yugoslavia. There is still time to prevent these outcomes, but you must move quickly.

Don’t Rush the Trial for Political Reasons: During the last several months, a split has emerged between the United States and your government on the timetable and strategy for prosecuting Saddam. The Americans prefer to try certain mid-level regime officials to build a broad case against Saddam. Your government, on the other hand, is eager to start the trial based on a few specific and well-documented instances of abuse. Your strategy makes more sense. A narrower focus might help prevent Saddam from turning the trial into a political stage. But don’t rush the trial hoping that it will take the wind out of the insurgency. It won’t—and haste might lead to critical mistakes. You still have work to do before the gavel comes down.

Erase the American Footprint: There is no denying that the IST is an American creation. The now defunct Coalition Provisional Authority established the tribunal in consultation with the U.S.-appointed Iraqi Governing Council. Its statute allows the appointment of foreign judges to the tribunal and mandates the presence of international observers. No foreign judges have yet been appointed, but the possibility is being seriously considered. The possibility itself is an insult to Iraqis. Even in Europe, which is increasingly bound together legally and culturally, it would be unacceptable to have, for example, a French judge on the bench for a German criminal trial.

The tribunal’s statute was drafted in English and modeled on the American adversarial legal system. The U.S. government provided $75 million and dispatched teams of prosecutors and investigators to help the tribunal prepare for the trials of senior regime officials. These American officials are dedicated, but they know little about Iraq’s legal traditions. The tribunal’s provenance and the presence of American personnel have fostered the view that it serves U.S. rather than Iraqi interests.

A large segment of the public in Iraq and the broader Arab world suspects that the tribunal is an attempt by the United States to divert attention from its own abuses in Iraq (and at the Abu Ghraib prison, in particular) and to justify the invasion by focusing on Saddam’s crimes. Many Muslims wonder why there is a tribunal for Saddam but not one for the Israeli leaders they consider responsible for ongoing abuses of the Palestinians.

Lost in this atmosphere of suspicion is the reality that Iraqi judges and prosecutors have gradually taken ownership of the process in the face of mortal danger. The assassination in March of an investigative judge working on the tribunal made clear the risks that Iraqi officials run by being involved in the process.