The capture of Saddam Hussein underscores the pressing need for a credible and legitimate tribunal where the former Iraqi president and other former high-level officials can be held accountable for the atrocities committed under their rule.
On Dec. 10, just days before Saddam’s capture, the Iraqi
Governing Council made public a law establishing a domestic tribunal to try war crimes and crimes against humanity. The statute has a number of positive features, but regrettably it lacks essential elements to ensure that the planned trials of former government and Baath Party officials are fair and effective. The Governing Council should consider amending the law to address these flaws.
The statute was drafted by a judicial commission set up by the council, working with advisers from the US-led Coalition Provisional Authority. Unfortunately, this process was not conducted in a transparent manner. The drafters did not consult widely among persons knowledgeable about international war crimes tribunals in the former Yugoslavia, Sierra Leone, or elsewhere, and they declined to issue a draft statute for public comment before issuing it in final form. The most serious flaw in the statute is the insistence that only Iraqis serve as judges, prosecutors and investigating judges. The desire that Iraqis “own” this process is understandable and there are positive reasons for them to play a major role. But successfully prosecuting and convicting perpetrators of crimes against humanity is an extremely complex undertaking. Iraq’s justice system, where no trial has lasted for more than a few days, does not have that experience. The Iraqi judicial system, moreover, has been isolated for decades from important developments in international jurisprudence regarding crimes against humanity.
Iraqi leaders have asserted that “miles” of incriminating documents and hundreds of mass graves will make these prosecutions a simple matter. But establishing a political indictment of the former government is different from establishing a durable criminal indictment that can withstand the scrutiny of a trial run in accordance with international fair trial standards. Specific killings must be tied, by a chain of convincing evidence, to orders given by a particular commander.
What will be needed is a prosecutorial strategy that draws on earlier efforts in The Hague not just what to do but also what not to do. The point is not to emulate every feature of the tribunals of Rwanda and the former Yugoslavia but to learn from them. Marginalizing the international component will make this extremely difficult, if not impossible. A reportedly last-minute alteration in the law does allow for the possibility of recruiting non-Iraqi justices. The Iraqi authorities should take steps to make sure this international dimension is in fact built into the process from the start.
Elsewhere the law mandates the appointment of international experts to serve as advisers to the jurists, prosecutors and investigating judges who would make up the operative structure of the tribunal. Again, this recognizes the problem but does not address it.
Given the animus of the Bush administration to anything smacking of “international” justice, the lack of support from that quarter is unfortunate, though not surprising. But it is the Governing Council that has been most insistent that an Iraqi-led mechanism must in fact be solely Iraqi.
One reason for this appears to be an abiding distrust of the United Nations. Many Iraqis blame the world body for failing to address the crimes of Saddam Hussein’s regime while it was still in power. In this they are confusing the UN as an institution with the policies of the member states who determine politically what the organization can and cannot do chief among them the permanent members of the Security Council.
While these Iraqi grievances are real, the blame is somewhat misplaced. Many members of the Governing Council have much experience in dealing with the international community and the UN, and they should take the lead in demystifying the issue. UN areas of competence in this domain are considerable given the role the organization has played in numerous post-conflict situations.
The dismal failure of the UN Security Council to establish a special international criminal tribunal on Iraq over the past many years should not now become a reason to keep the tribunal-in-formation from being the best it can be.
A second Iraqi motivation is a fear that an international tribunal would somehow be too “lenient.” In particular, there is Iraqi concern to preserve the sanction of the death penalty for the worst offenders, something that finds no precedent in the international tribunals of the 1990s. The task here is to persuade Iraqis of the solid reasons for the unmistakable de-legitimization of capital punishment worldwide, and that there are solid advantages in terms of credibility and legitimization with a tribunal possessing a significant international dimension that outweigh the possible political satisfactions of condemning certain ex-leaders to death.
A third reason, already noted, is the widespread notion that the evident criminality of the former Baath regime makes issues of a competent tribunal secondary, given that the verdict, in their minds, is a foregone conclusion. To continue to confuse political indictment with criminal prosecution will be to taint any proceedings against former Iraqi leaders. Such a development also risks compromising the future of the rule of law in Iraq and setting back the accomplishments to date in ensuring an international stake in seeing the worst offenders held to account.
