WASHINGTON - The trials of Saddam Hussein and other Iraqi leaders could produce embarrassing reminders of past American support for his government and of the West's failure to punish him despite mounting evidence of Iraqi atrocities.
Lawyers familiar with war crimes trials say attorneys for Hussein and his aides might try to introduce damaging evidence against Western leaders as a pressure tactic against their accusers or to shift responsibility away from the dictator's actions.
The tactic is unlikely to work in his favor, they said, because Hussein's defense team would have a hard time persuading a tribunal that such evidence is relevant in judging whether he was responsible for war crimes, genocide or human rights abuses, the charges likely to be leveled against him.
The prospect that he will try to implicate other nations presents a powerful reason for the United States not to appear to be orchestrating the trial, said Diane Orentlicher, an international justice specialist at American University's Washington
College of Law.
Nevertheless, the prospect that he will try to implicate other nations presents a powerful reason for the United States not to appear to be orchestrating the trial, said Diane Orentlicher, an international justice specialist at American University's Washington
College of Law.
"It underscores the importance that this not be seen as an American stage-managed process," Orentlicher said. "It's in the interests of both Iraqis and the United States to invite international participation."
The public record is replete with instances of high-ranking American policy-makers adopting a soft line toward Hussein, viewing him as the lesser of evils they were confronting at the time.
The United States provided battlefield intelligence to Iraq during Hussein's war against Iran during the 1980s, joining with Arab states in seeking to curb the spread of Iran's brand of Islamic fundamentalism and its perceived ambition to dominate the oil-rich Persian Gulf region.
In 1988, Reagan administration officials found persuasive evidence that Hussein had used poison gas against Kurds in the village of Halabja, in northern Iraq, and joined with allies in seeking a United Nations inspection. Hussein refused to allow inspectors in. That same year, the United Nations found that Iraq had used poison gas in the final throes of its war against Iran.
But the Reagan administration resisted an effort by some in Congress, led by Sen. Claiborne Pell, a Rhode Island Democrat, to impose sanctions on Iraq, preferring to use diplomacy in a bid to halt Hussein's use of chemical weapons.
The Reagan administration and its successor under President George Bush granted billions of dollars in credits to Iraq, enabling it to buy U.S. agricultural products, while Hussein simultaneously expanded his weapons arsenal and tried to develop nuclear weapons.
A 1990 Human Rights Watch report quoted a senior State Department official as describing the Iraqi government as "possibly the worst violator of human rights anywhere in the world today."
And as Hussein made threatening moves against Kuwait in 1990, Bush's ambassador to Baghdad, April Glaspie, failed to warn him that he would face serious punishment if he invaded his neighbor, which Iraq soon did. After the Persian Gulf war in 1991, the United States stood by as Hussein brutally crushed uprisings by Kurds and Shiite Muslims.
Other countries might not be exempt from possible Hussein efforts to spread blame. France helped Iraq build a nuclear facility that was bombed by Israel in 1981, and Russia sold Iraq weapons that were paid for with help from Saudi Arabia and other wealthy Persian Gulf states. Nations might also be exposed as having allowed illicit weapons to slip through their customs controls to Iraq.
Hussein could try to dredge up some of this history during his trial, in an argument that the West was somehow complicit in his actions.
Whether tribunal judges would allow such information into evidence will depend on how narrowly they define what is relevant to the charges.
Salem Chalabi, a Baghdad-based legal adviser to the Iraqi Governing Council, said he and others involved in preparing rules for the tribunals want to keep the trials narrowly focused "on the crimes in question."
Former CIA Director R. James Woolsey, a practiced litigator, said such a tactic by Hussein would be "a real reach for relevancy" and doubted that it would seriously embarrass the U.S. government.
"Was it inconsistent to have worked with Stalin during World War II and then to oppose him during the Cold War? So what? That's statecraft," he said.
But legal strategy might not be Hussein's intent, said Ruth Wedgwood, a professor of international law at the Johns
Hopkins University. "It can't help him legally. It can only help his design concept for his historical role, provide exculpatory fiction for the Baathists or play on the theme of betrayal," she said.
Orentlicher said the Bush administration, aware that such a tactic might be in store, "ought to be prepared to say, 'We made mistakes in the past, but this is legally irrelevant.'"
The Bush administration took a step toward such an admission in September, when Secretary of State Colin L. Powell visited Halabja and spoke to several hundred Kurdish families.
"I cannot tell you that the world should have acted sooner. You know that," Powell said. "What I can tell you is that what happened here in 1988 is never going to happen again."
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