Saddam Hussein and his henchmen have been responsible for murdering or "disappearing" some 225,000 Iraqis. Now that his dictatorship is crumbling, what is the best way to bring to justice the surviving members of his government who are responsible for these atrocities? The Bush administration has proposed an "Iraqi-led" tribunal. It sounds wonderful in theory: Why not entrust the Iraqi people with pursuing the crimes committed against them?
The Bush administration has proposed an "Iraqi-led" tribunal. It sounds wonderful in theory: Why not entrust the Iraqi people with pursuing the crimes committed against them?
In practice, though, Washington proposes to handpick the Iraqis from among its closest exile and opposition friends. This threatens to aggravate political tensions and undermine the rule of law. Only an internationally-led tribunal will have the independence, credibility, and legitimacy needed to see justice done.
At stake are not Iraq's alleged crimes against U.S. forces, such as executing prisoners of war or attacking troops while pretending to surrender. If the Pentagon can provide evidence of these crimes, no one would quarrel with its right to prosecute the perpetrators on its own.
But these offences pale in comparison with the atrocities that Saddam Hussein and his government committed against the Iraqi people: the so-called Anfal genocide of 1988 in which some 100,000 Kurdish men and boys were rounded up and executed, and entire Kurdish villages assaulted with chemical weapons; the suppression of the 1991 uprisings in the largely Kurdish north and Shia south; and the suppression of the Marsh Arabs in the mid-1990s.
In an ideal world, one would hand the prosecution of these atrocities to Iraqi judges and prosecutors. But there are only two potential sources of Iraqi jurists, and neither is promising. The first, judges and prosecutors who populated Saddam Hussein's brutal and arbitrary justice system, is hardly a source of independent, fair-minded professionals. The second comprises Iraqi jurists in exile, as well as Iraqis from communities historically repressed by the Baath Party who remained in the country. It will be an uphill battle for these people to show they are not so consumed by hatred of the former dictatorship they won't simply assume the guilt of the accused. Moreover, Washington's designees would likely be seen as puppets of Washington, rather than independent dispensers of justice.
A more prudent route would be to find an internationally-led justice process, modeled after the international tribunals set up for Rwanda and former Yugoslavia, perhaps in streamlined form. To facilitate Iraqi involvement, one could emulate the special court for Sierra Leone, which is dominated by international judges but has significant involvement of local jurists. To decide on which format, and to begin preserving and assembling evidence, the United Nations could establish an international commission of inquiry.
An internationally-run court is far more likely than an Iraqi-led tribunal to be seen as a step toward the rule of law rather than a continuation of arbitrary violence. This is essential in a country where, after decades of brutal dictatorship, there is an enormous temptation to summary score-settling. So why does the Bush administration press for a tribunal led by hand-picked Iraqis?
First, Washington wants to control the scope of the inquiry to prevent examination of U.S. conduct in Iraq. The Pentagon seems to have gone to great pains to avoid civilian casualties in most cases, but certain of its actions have been controversial under the laws of war, such as the use of cluster bombs, the targeting of civilian morale, and the way in which it has used lethal force in urban areas. The last thing the Pentagon wants is for an independent tribunal to examine its behaviour.
Second, the Bush administration wants to apply the death penalty in Iraq. Most democracies have abolished capital punishment, and international tribunals don't permit it. But Washington doesn't want to be denied the option.
Finally, and perhaps most important, the Bush administration and the Pentagon detest international justice. Their ideological antipathy toward the International Criminal Court (out of fear that it might focus on an American) has led to its presumptive dislike of any international tribunal.
None of these reasons speak to the needs of the Iraqi people, who deserve a fair accounting of the many cruelties they have endured, a credible process for bringing those responsible to justice, and a positive precedent for building the rule of law in their lawless state. An internationally-led judicial process is the Iraqi people's best bet for a more lawful and just future.
