Secretary of State Antony Blinken on March 23rd issued a press release declaring that Russian President Vladimir Putin was responsible for war crimes committed by his troops in their invasion of Ukraine. On this week’s episode of Now & Then, “War Crimes & War Codes,” Heather Cox Richardson and Joanne Freeman reflected on historical attempts to define the rules of war, from the Civil War-era Lieber Code to the long quest to ratify the Geneva Conventions. Another effort to hold war criminals to account came following the Gulf War in 1991, when Congress debated methods of trying Iraqi President Saddam Hussein for his brutality against both Kurds and Kuwaitis.

Saddam Hussein seized power in Iraq as a military figure in the Socialist Ba’ath Party. In 1969, shortly after the Party gained control of the country, Hussein showed a glimpse of things to come when he ordered the public hangings of 17 alleged spies for Israel in Baghdad’s downtown.  

A Sunni Muslim and an ethnic Arab, Hussein purged thousands of Shi’ites and ethnic Kurds as he became a dictator over the next two decades. In 1988, during the waning days of the eight-year Iran-Iraq War, Hussein launched a particularly vicious campaign against the nation’s Kurdish population, some of whom had sided with Iran. Hussein ordered his cousin—the notorious chemical weapons expert Ali Hassan al-Majid—to use nerve agents and mustard gas against civilians. An estimated 100,000 Kurds lost their lives. 5,000 civilians died in a single day, March 16th, 1988, during a mustard gas attack on the city of Halabja

In August 1990, less than two years after the end of the concentrated massacres of Kurds, Hussein invaded Kuwait, where his soldiers engaged in widespread torture. The United States ultimately intervened, expelling Hussein from the country in the early 1991 Operation Desert Storm

Even before Desert Storm, President George H.W. Bush made it clear that he believed Hussein was a war criminal. At an October 1990 Dallas fundraiser for failed gubernatorial candidate Clayton Williams, Bush recounted the “horrible tales” he heard during a White House meeting with the deposed Emir of Kuwait the previous month. “Hitler revisited,” Bush labeled the “ghastly atrocities,” which he said included babies being ripped from incubators and anti-Iraqi youth pamphleteers being shot in front of their parents. “But remember, when Hitler’s war ended, there were the Nuremberg trials.”

When American military involvement in Iraq and Kuwait ended in late February 1991, however, Hussein remained in power and out of the grasp of international courts. President Bush made clear that U.S. forces would not be used to topple the dictator. 

On April 9th, 1991, the Senate Foreign Relations Committee convened to discuss how best to condemn Hussein’s actions. The Committee’s chair, Rhode Island Democratic Senator Claiborne Pell, gave an opening statement that invoked his own father, Herbert Pell. The elder Pell served as Minister to Portugal and Minister to Hungary before and during World War II and became a leading—and largely unheeded—advocate for protecting Europe’s Jewish population. After the War, he was a founding representative of the U.N. War Crimes Commission. 

Claiborne quoted his father’s explanation of why he became so involved in prosecuting Nazi war crimes: “I am thinking of my unborn grandchildren, and I’ll see myself damned, in the most literal and theological sense of the word, I’ll leave no stone unturned that might save them for a third war. I do not ask to revenge dead innocents, but I intend to protect those that are to come.” 

The first witness before the Committee was author and Holocaust survivor Elie Wiesel, who had won the Nobel Peace Prize in 1986 for his outspoken anti-war advocacy. Wiesel had waded into the halls of Congress several times, including having a tense 1985 confrontation with President Reagan during his Congressional Gold Medal ceremony; in his acceptance remarks, Wiesel urged the President to forgo a wreath-laying trip to Bitburg, a German military cemetery. In 1989, Wiesel had also accompanied Pell to a rapidly thawing Moscow, where Wiesel had argued to a shocked Russian public that Stalin’s acts were war crimes. 

Wiesel told the Committee—in words echoing Pell’s father’s statement of purpose—why he continued to fight so actively against war atrocities: “I want my son’s children to remember that at the end of the 20th century members of the U.S. Senate have declared for all to hear that the answer to war is not war, but justice and compassion, not complacency and forgetfulness.” 

The activist also criticized what he saw as years of inaction by politicians over the use of chemical gas on the Kurds, a passivity that he suggested spurred Hussein’s eventual invasion of Kuwait. “We have seen the pictures, we have got the reports, and there was no protest,” he said of the initial global reaction. “Not a single head of state of a major power has protested. That pains me. That gave Saddam Hussein a kind of blank approval saying he can go on.”

Wiesel also reflected on his own attendance at the 1961 trial of Holocaust organizer Adolf Eichmann in Tel Aviv and the 1987 trial of Nazi death camp “butcher” Klaus Barbie in Lyon, France. “All the time I was wondering what can we do to these people? They are beyond punishment, even if sentenced to death isn’t it disproportionate? Then I realized the punishment that we can mete out, the only one, is memory. The killer does not want his murders to be remembered; and we say, ‘we shall remember them’ and our grandchildren will remember them. Memory thus becomes a shield.” 

The practical political considerations of how to make the memory of Hussein’s crimes into a shield fell primarily to a junior member of the Committee, Republican Kentucky Senator Mitch McConnell. At the height of Desert Storm in late January, the legislator had introduced a bill pressing the Bush administration to create a tribunal for an eventual capture and trial of Hussein. In the March lead-up to the hearing—as the dust was still settling from combat—McConnell visited Saudi Arabia and Kuwait. 

“I happened to sit next to a young Air Force photographer who had been busy at work taking photographs of bodies in the Kuwait morgue and photographs of victims who survived that period, clearly for the purpose of documenting war crimes,” McConnell recounted from his trip. “The question becomes, toward what end?”

Conservative icon William F. Buckley agreed. Buckley wrote an article called “There Ought to Be a Hangin’” in the April 15th, 1991 edition of his National Review. Buckley envisioned a televised arena execution for the dictator: “Saddam Hussein is led to the noose, which is placed over his head. The last sound he hears is the boos from the Iraqis and Kuwaitis who surround him in the huge stadium.” 

Buckley believed that Kuwait could deliver Hussein to judgment. “There is no reason that occurs to us as dispositive why the Kuwaitis should not offer a no-questions-asked reward of, say, $10 million, for Saddam alive, and proceed to try him. They can easily raise the money from the television rights.” 

International diplomats, however, found the cavalier attitudes expressed by McConnell and Buckley unrealistic. “There is no way to do it,” George Aldrich, a judge at the U.S.-Iran Claims Tribunal in the Hague, Netherlands, told USA Today in February 1991. “It will take a lot of creating—not only the court, but procedures.”

By the end of April, even State Department hands were arguing that symbolically trying Hussein would be ill-advised. Secretary of State James Baker poured cold water on a plan by the European Community (EC) to try Hussein during a meeting of EC foreign ministers in Luxembourg, arguing that he backed the plan “morally” and “legally” but doubted the practicality of a tribunal. 

Assistant Secretary of State John Bolton even suggested to the Washington Post that such a move could bolster Hussein’s popularity in Iraq: “Unless Saddam Hussein is physically in custody the risks of a trial in absentia are such that it might preserve him in power, which is not our objective.”

The possibility of a tribunal lingered, however, as 1991 progressed and evidence of Hussein’s continued brutal suppression of a post-Gulf War Kurdish uprising emerged. 

In May, California Democratic Representative Tom Lantos, the only Holocaust survivor to ever serve in the House, wrote an op-ed in The Christian Science Monitor pleading for a trial, even if Saddam was absent. “We may not succeed in dislodging Saddam or his subordinates from power in Iraq, and we may not bring them before an international tribunal to stand trial for war crimes, but it is vital that we try,” Lantos argued. “The deterrent value could be significant, even if we fail.”  

At the American Bar Association national conference in early August 1991, famed lawyers held a mock war crimes trial for Hussein. Defense attorney (and to-be O.J. Simpson defender) F. Lee Bailey and Senate Ethics Committee Counsel (and to-be lawyer for President Clinton during the Lewinsky affair) Bob Bennett play-defended Hussein, arguing that Iraq’s invasion of Kuwait was no worse than the recent U.S. invasions of Grenada and Panama. 

Former State Department legal advisor Roberts Owen and defense attorney David Boies argued for Hussein’s conviction. “There has never been a clearer case for prosecution and conviction,” Boies said. 

In the end, the lawyers, wary of creating international tensions, failed to reach a verdict—a metaphor of sorts for the larger queasiness surrounding trying Hussein. 

Hussein’s trial and hanging would come fifteen years after the 1991 reckoning. By that time, however, another wrenching conflict between the United States and Iraq had brought to the world further acts of heartbreaking violence, from Shock and Awe, to Abu Ghraib, to suicide bombings.  

As political leaders continue to grapple with how to condemn Putin’s invasion, the difficulty of finding a just punishment for Saddam Hussein serves as a reminder for the tough road ahead. 

For more on the late-1980s reaction to Saddam Hussein’s chemical attacks on Kurds, read Joost Hiltermann’s 2007 A Poisonous Affair America, Iraq, and the Gassing of Halabja. For a critical look at the U.S. government’s relationship to Hussein, read Patrick and Alexander Cockburn’s 2002 Saddam Hussein: An American Obsession.

And head to the Twitter account of author and Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.

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