Any justice system that addresses the responsibility of former Iraqi leaders for serious crimes must be impartial, fair and independent, and must be widely perceived as such. Only the UN Security Council has the authority and legitimacy to establish such a court, whether an international tribunal or a mixed international and Iraqi court.
Proponents of the war inside and outside US president George W. Bush's administration have cited documentation of the atrocities as ample justification for toppling the Baath government. "The day of Iraq's liberation will also be a day of justice," Bush declared. But now it looks like justice for the perpetrators of the worst crimes - never very high on the administration's agenda - may be traded away for information about the elusive weapons of mass destruction or the whereabouts of Saddam Hussein.
This, anyway, was the implication of US Defense Secretary Donald Rumsfeld's recent affirmation that Washington is considering plea-bargaining talks with those former Iraqi officials now in US custody who were featured in the deck of cards distributed by the Anglo-American coalition.
Equally disturbing is the fact that the UN Security Council has so far taken no steps to establish an impartial and independent venue for trying those Iraqis suspected of crimes against humanity, genocide and war crimes. And the US occupation authorities have still not developed a comprehensive policy to secure the mass gravesites and preserve evidence necessary for identifying victims and initiating prosecutions of those responsible for the killings.
The UN Security Council should appoint a commission of experts, as it did a decade ago for the former Yugoslavia. This commission would assess the available evidence on war crimes and crimes against humanity committed by Iraqi officials, and serve as a repository for evidence now being uncovered. It would also recommend to the Security Council the most appropriate forum to administer justice for atrocities we know have been committed - whether an ad-hoc international criminal tribunal as in the case of the former Yugoslavia, a mixed international-national tribunal as in Sierra Leone or another mechanism.
Establishing such a commission, and possibly an international tribunal, would not affect the ability of the US-led coalition to use military tribunals to deal with Iraqis suspected of war crimes and other violations of international humanitarian law in the current conflict. This is permissible under the laws of war. Nor would it contradict the edict earlier this month of the US civilian administrator, Paul Bremer, creating a new central criminal court composed of 10 Iraqi judges to deal with "particularly egregious criminals" and irregular forces carrying out attacks against US and British forces. However, US military tribunals would have no jurisdiction over past crimes in Iraq.
Former Iraqi officials considered responsible for ordering and carrying out crimes against humanity, genocide and war crimes should be tried by a tribunal with a composition and mandate appropriate to the enormity of the crimes and the complexity of the task. American officials have said this should be an "Iraqi-led process," but there are several reasons why this responsibility should not be handed over to an Iraqi judicial system presently in disarray.
For one thing, it would be difficult today to find Iraqi jurists who have not been compromised by participating in a court system that was part of the Baath apparatus of repression; or, conversely, who were not linked with opponents of the previous regime, and who hail from communities that suffered under it. Second, trials conducted by judges appointed directly or indirectly by the US civil administration would be widely viewed in Iraq as serving American interests, if not operating under US control.
Any justice system that addresses the responsibility of former Iraqi leaders for serious crimes must be impartial, fair and independent, and must be widely perceived as such. Only the UN Security Council has the authority and legitimacy to establish such a court, whether an international tribunal or a mixed international and Iraqi court.
Washington's disinterest in such a course has several probable causes. One is the Bush administration's well-advertised aversion to any mechanism that might validate the concept of international justice, and a parallel desire to limit the scope of any inquiry that might scrutinize US actions in Iraq. Second, international tribunals don't permit the use of the death penalty, which the Bush administration favors. Finally, the US presumably wants to retain maximum discretion in its dealings with captured Iraqi leaders, and not have its hands tied by commitments to deliver key individuals to an international tribunal.
Unfortunately, the US seems more interested in questions of justice and accountability for past crimes mainly to the extent that these can be used to vilify the old Iraqi regime and justify its military intervention. It is far less interested in seeking justice for the victims and survivors of Saddam Hussein's tyranny.