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After his sons funeral, Jawad Kadhim `Ali described the
struggle between the desire for basic revenge and waiting for a justice
system:
Even I have a gun, like everyone else now. But I have
locked it away, and I dont tell my family that I have it. If they find out
that I have this gun, they will take it and use it to kill the Ba`th Party
members that used to live here, because we know they were responsible for
Mustafas death. My son [Basim] will kill them, but then what? He will be
arrested too? That is not the way. We are waiting for the British to arrest
these people. Why dont they arrest them? Everyone knows who they are. But I
am afraid that if they are not arrested, if they are still here, or, God
forbid, in power again, then we cannot stop the families from attacking them.
Even I could not control myself. I have lived my life and I have buried my son
I want justice.45
A transparent and fair judicial process can help lay the
foundation of respect for the rule of law in Iraq. A survey of the residents
of three major cities in southern Iraq conducted two months after the fall of
Saddam Hussein, indicated that the overwhelming majority98 percentsought
justice and accountability. However, nearly half of this group wanted to apply
the principle of an eye for an eye. Fifteen percent, for instance, listed
execution, torture, hanging, and revenge killing as appropriate modes of
justice.46
Such notions of revenge violate international human rights law and pose serious
challenges to developing a fair and credible process for accountability for human
rights abuses in Iraq.
To the Iraqi Transitional Government
- Ensure that there are full and fair investigations into
the former governments 1999 campaign against Shi`a Muslims in the Basra
area, which included summary executions, disappearances, arbitrary
detentions, and torture, in connection with the uprising following the
assassination of Grand Ayatollah Muhammad Sadiq al-Sadr (the al-Sadr
intifada), including:
- The role of `Ali Hassan al-Majid, then Commander of the
Southern Sector;
- The role of Mahdi al-Dulaimi, an army officer who
reportedly headed the General Security Directorate in Basra at the time;
and
- The roles of the Basra and Umm al-Ma`arik Ba`th Party
leadership and members.
- Ensure that those most responsible for the atrocities are
prosecuted before a fair, effective, and politically independent
tribunal. The best method for assuring such trials would be for Iraq and the United Nations to establish a mixed national/international tribunal that would
apply internationally accepted fair trial standards, and benefit from
international expertise in the investigation and prosecution of genocide,
war crimes, and crimes against humanity. At the very least, the following
reforms to the Iraqi Special Tribunal should be made:
- The Iraqi Transitional Government should abolish the
death penalty, an inherently cruel and inhumane punishment;
- The Iraqi Transitional Government should exercise the
option provided in the Iraqi Special Tribunal statute for the appointment
of non-Iraqi judges who have experience trying cases of genocide, war
crimes, and/or crimes against humanity, and who are persons of high moral
character, impartiality and integrity; these judges should be recommended
by the United Nations;
- The Iraqi Transitional Government should revise the
tribunals statute, and the rules of procedure and evidence to ensure
that fair trial protections are guaranteed; a mechanism must be
created to ensure that these protections are implemented in practice;
- The statute should be amended to permit the appointment
to the Tribunal of non-Iraqi prosecutors and investigative judges with
experience prosecuting and/or investigating genocide, war crimes, and/or
crimes against humanity, and with high moral character, impartiality and
integrity; these prosecutors and investigative judges should be
recommended by the United Nations; and
- The Iraqi Transitional Government and its successor need
to ensure that the Iraqi Special Tribunal is independent of political
influence.
- Establish a Commission for Missing Persons that initially
engages international as well as Iraqi expertise and administration. The
Commission should establish a system for protecting and preserving mass
graves, create protocols for exhumations of gravesites, and set and oversee
implementation of priorities for exhumations of mass gravesites that
balance the needs of families to identify victims alongside the
evidentiary needs of criminal proceedings against the alleged
perpetrators.
- Appoint a body of Iraqi and international experts to
recommend standards and best practices for the handling of confiscated
documents of the former government, including for the following purposes:
1) establishing a chain of custody in order to assure authenticity; 2)
facilitating the archiving of documents in a manner that addresses both
the evidentiary needs of criminal judicial proceedings against former high
officials, as well as the humanitarian needs of victims' families of the
former government to resolve the fate of missing loved ones; and 3)
working with Iraqi nongovernmental organizations and political parties to
secure, to the extent possible, the return to a national archive of
originals of state documents currently in their possession.
To the United States and other coalition member
governments
- Ensure that officials of the Iraqi Special Tribunal and
the Iraqi criminal courts have access to all confiscated documents to
determine whether they represent potential evidence in criminal
investigations and proceedings.
To the international donor community
- Ensure that resources are made available for key forensic
and documentary evidence preservation priorities, including for
documentation, humanitarian, and truth-telling purposes separate from any
trials for serious past crimes.
[45] Human Rights Watch interview, May 8, 2003, Basra, Tanuma neighborhood.
[46] Physicians for Human Rights, Southern Iraq: Reports
of Human Rights Abuses and Views on Justice, Reconstruction and Government, September 18, 2003, pp.6-7.
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