A tribunal composed of Iraqi jurists selected by the United States would not have the capacity to adjudicate the staggering scope of crimes by the Iraqi government, including genocide, crimes against humanity, and war crimes.
Iraq's Revolutionary Courts, State Security Courts, and Special Provisional Courts have been instruments of repression rather than impartial judicial institutions, Human Rights Watch said. The Iraqi state has also interfered with other civil and criminal courts.
Meanwhile, scholars, lawyers, and jurists in the Iraqi exile community should not be expected to shoulder the burden of handling a high volume of politically charged prosecutions, Human Rights Watch said.
"After decades of Ba'ath Party rule, the Iraqi judiciary has been deeply compromised," said Richard Dicker, director of the International Justice Program at Human Rights Watch. "The Iraqis should certainly be involved in this process, but the country's justice system just doesn't have the capacity to handle a series of highly complicated trials. The local solution proposed by the U.S. government would be a mistake."
Dicker said the United States should support a tribunal composed of international jurists, or a "mixed" tribunal composed of local and international legal experts.
Human Rights Watch estimates that in the 1988 Anfal campaign, more than 100,000 Kurds, mostly men and boys, were trucked to remote sites and executed. Since the late 1970s, as many as 290,000 people were "disappeared" in Iraq. Between 1977 and 1987, some 4,500-5,000 Kurdish villages were systematically destroyed and their inhabitants forced to live in "resettlement camps."
Iraq's ethnic and religious composition may also complicate the establishment of local tribunals. For example, a judicial panel composed of victims of the Ba'ath regime, such as Kurds or Shi'ites, could not be considered impartial.
Reforming the current courts and training judges for an Iraqi-led tribunal would take considerable time, Dicker said.
"The U.S. government can't solve this problem by offering some technical assistance to the Iraqi judicial system," said Dicker. "That system needs to be rebuilt from the ground up."
To read more on the war in Iraq, please see: http://www.hrw.org/campaigns/iraq/