For years, Human Rights Watch has advocated accountability for the Iraqi leadership regarding its role in the genocidal 1988 "Anfal" campaign in which we estimate more than 100,000 Kurds, mostly men and boys, were trucked to remote sites and executed.
The U.S. Should Not Hand Over All Trials To An Iraqi Tribunal.
We believe it is critical that any tribunal created to adjudicate these and other serious past human rights and humanitarian law crimes be widely seen as impartial, fair and independent. With or without international assistance, Iraqi courts or a specially constituted tribunal would be an inappropriate venue to try those most responsible for past human rights and humanitarian law crimes.
Because many of these crimes were committed against the Iraqi people, it would normally be preferable to give the Iraqis ownership over the accountability process. But there are only two potential sources of jurists from which an Iraqi-led tribunal could draw, and neither is promising.
First, jurists could be drawn from the Iraqi opposition in exile, or from communities that have historically been repressed by the Ba'ath Party, such as the Kurds and Shi'a. While there may be qualified judges and prosecutors, particularly among the exile community, neither they nor judges and prosecutors from repressed groups would appear impartial in judging Ba'ath Party crimes. What is more, trials conducted under the auspices of an interim government selected by the United States would widely be seen as U.S.-controlled trials. They will not have credibility with many Iraqis and with most people in the Arab world. They are less likely to receive financial and logistical support from U.S. allies in Europe and elsewhere. In addition, they will have no authority to compel cooperation from other countries - an important practical concern if suspects flee Iraq.
A second potential source of jurists is the existing Iraqi justice system. Yet, over decades of Ba'ath rule, that system has been deeply compromised. The Revolutionary Court, State Security Court, and Special Provisional Court, in particular, have been instruments of repression. The state also interfered with the remaining civil and criminal courts. While it may be possible to identify individual jurists who have remained untainted by over thirty years of Ba'ath Party Rule, their numbers and preparedness remain unclear. Thus, even after vetting and re-training, it could be difficult to select qualified judges and prosecutors for these complex and politically charged trials. Because of the extensive state controls that have existed, and because of divisive Ba'ath Party ethnic targeting, we are concerned that trials in Iraqi courts or before judges who served under the Ba'ath Party also would not appear impartial or fair in adjudicating crimes committed by persons associated with the Ba'ath Party.
In terms of fairness, the trials would need to adhere to international standards of due process. Due to the erosion of an independent Iraqi judiciary, reforming the current courts could take considerable time. Training judges for an Iraqi tribunal to adhere to such standards would also take time. These same concerns about the appearance of partiality and time required for retraining also apply to other staff.
Even if some form of an international tribunal were established for Iraq, such a tribunal would likely only hear cases involving those most responsible for the worst crimes, leaving a sizeable number of cases to a reformed Iraqi judiciary to adjudicate. It would be better to concentrate on rebuilding the Iraqi judiciary to have the capacity to handle such cases rather than stretching its capacity to handle the most sensitive cases involving the worst crimes.
Trials of past crimes before a U.S. military commission should also be rejected, due to the perception of "victor's justice" that would arise, calling into question both such a tribunal's impartiality and independence.
An International Tribunal Should Be Created.
By far the best option would be to create an international tribunal to prosecute past crimes. Such a tribunal could be impartial, fair and independent. If constituted by the U.N. Security Council, it would undoubtedly have the greatest appearance of legitimacy. Because of the important experience gained by the international community over the last ten years, the Security Council could establish an international tribunal for Iraq fairly quickly. Such a tribunal could be smaller in scale than the current ad hoc tribunals and might be located in Iraq.
We believe a "mixed" national-international tribunal would be a second-best alternative. Due to our concerns with the state of the Iraqi judiciary (discussed above), we have some concerns with this mechanism, although it would be preferable to an Iraqi tribunal. For both an international or "mixed" tribunal, consideration should be given to selecting both judges and staff from Arab countries.
While this letter addresses trials of those most responsible for the worst past crimes, we recognize that for the Iraqi people to truly come to grips with the legacy of abuse perpetrated against them, other institutions will be needed, such as the Iraqi courts and a truth and reconciliation commission.
The United States and its coalition partners have a responsibility to help build a strong and independent judiciary for Iraq. In the meantime, we urge you to work towards the establishment either of an international ad hoc tribunal authorized by the Security Council, or, if that is not possible, a mixed national-international court, created either by the Security Council or an agreement between the U.N. and an interim Iraqi authority.
We hope our concerns can be taken into account in planning for post-conflict justice in Iraq.
| Richard Dicker
International Justice Program
| Hanny Megally
Middle East and North Africa Division
Cc: Donald Rumsfeld, Secretary of Defense
Condoleezza Rice, National Security Advisor