A Letter to Donald Rumsfeld
8/19/2003 - Social Political - Article Ref: HR0308-2066
Number of comments: 9
Opinion Summary: Agree:5  Disagree:1  Neutral:3
By: Kenneth Roth
Human Rights Watch* -

Dear Mr. Secretary: 
We are writing to you to express our concern following reports that you and other senior administration officials are discussing whether it might be preferable for United States forces to kill Saddam Hussein rather than capture him and make him stand trial. 

We recognize that there may be circumstances of armed confrontation with U.S. forces in which the former Iraqi president is killed. However, it should be the clear preferred policy of the United States to take Saddam Hussein into custody and to make him available to face charges of war crimes, crimes against humanity, and genocide before a competent, independent and impartial tribunal. We strongly urge you to state this publicly, at the earliest opportunity, and to instruct U.S. forces to carry out this policy to the extent possible. 

We acknowledge that bringing Saddam Hussein and other high officials in his government to justice for war crimes, genocide, and crimes against humanity will invariably be a highly complex and politically charged process. It is nonetheless an essential step for several reasons. 

First, it is necessary to address the deep and widespread demand of Iraqis for accountability by their former leaders. On March 26, President Bush said that "the day of Iraq's liberation will also be a day of justice." That justice should take place in a forum that is competent, fair, impartial and independent, and seen as such in Iraq and beyond. Summary "justice" will not do. 

Second, as previous efforts such as Bosnia have shown, it is crucial to establish the primacy of the rule of law as a first step in reconstructing a society as traumatized by tyranny and war as that of Iraq. In this context, a policy that prefers to eliminate Saddam Hussein rather than compel him to face his victims and the evidence of his many crimes will severely test all other efforts to reestablish the rule of law in Iraq. Among other things, it will likely be read as a green light for Iraqis to take "justice" into their own hands-not only against officials of the former government but against anyone they perceive as having wronged them. 

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Third, bringing Saddam Hussein before a competent and impartial court of law is without doubt the best way to convey to people outside Iraq, in the region and in the world, the horror of his systematic criminality. 

In addition, any U.S. decision to prioritize killing Saddam Hussein as an alternative to taking him into custody may well violate U.S. obligations under international law. First, under the Geneva Conventions, even if Saddam Hussein is considered an enemy combatant in circumstances governed by the rules of war, any offer of surrender that he might make must be respected. Second, under the Fourth Geneva Convention, which governs situations of belligerent occupation, unless U.S. forces are facing hostilities they must exercise their responsibilities for public order and law enforcement in a manner that complies with international human rights law standards. In such instances, policing rather than armed conflict standards apply, and U.S. forces must use lethal force only when necessary to avert an imminent threat to the life of themselves or others. 

President Bush and other high officials have spoken often about the need for justice in Iraq. A policy that now looks for ways to avoid justice will badly undermine U.S. interests in Iraq and in the Middle East. To address Iraq's need for justice and to comply with U.S. obligations under international law, you should make clear that U.S. forces in Iraq will make every effort to bring Saddam Hussein to account in person.

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