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V. The Need for Accountability and Justice

After his son’s funeral, Jawad Kadhim `Ali described the struggle between the desire for basic revenge and waiting for a justice system: 

Even I have a gun, like everyone else now.  But I have locked it away, and I don’t tell my family that I have it.  If they find out that I have this gun, they will take it and use it to kill the Ba`th Party members that used to live here, because we know they were responsible for Mustafa’s death.  My son [Basim] will kill them, but then what? He will be arrested too? That is not the way.  We are waiting for the British to arrest these people.  Why don’t they arrest them? Everyone knows who they are.  But I am afraid that if they are not arrested, if they are still here, or, God forbid, in power again, then we cannot stop the families from attacking them.  Even I could not control myself. I have lived my life and I have buried my son … I want justice.45

A transparent and fair judicial process can help lay the foundation of respect for the rule of law in Iraq.  A survey of the residents of three major cities in southern Iraq conducted two months after the fall of Saddam Hussein, indicated that the overwhelming majority—98 percent—sought justice and accountability.  However, nearly half of this group wanted to apply the principle of “an eye for an eye.” Fifteen percent, for instance, listed execution, torture, hanging, and revenge killing as appropriate modes of justice.46   Such notions of revenge violate international human rights law and pose serious challenges to developing a fair and credible process for accountability for human rights abuses in Iraq.


To the Iraqi Transitional Government

  • Ensure that there are full and fair investigations into the former government’s 1999 campaign against Shi`a Muslims in the Basra area, which included summary executions, disappearances, arbitrary detentions, and torture, in connection with the uprising following the assassination of Grand Ayatollah Muhammad Sadiq al-Sadr (the “al-Sadr intifada”), including:
    • The role of `Ali Hassan al-Majid, then Commander of the Southern Sector;
    • The role of Mahdi al-Dulaimi, an army officer who reportedly headed the General Security Directorate in Basra at the time; and
    • The roles of the Basra and Umm al-Ma`arik Ba`th Party leadership and members.
  • Ensure that those most responsible for the atrocities are prosecuted before a fair, effective, and politically independent tribunal.  The best method for assuring such trials would be for Iraq and the United Nations to establish a mixed national/international tribunal that would apply internationally accepted fair trial standards, and benefit from international expertise in the investigation and prosecution of genocide, war crimes, and crimes against humanity.  At the very least, the following reforms to the Iraqi Special Tribunal should be made:
    • The Iraqi Transitional Government should abolish the death penalty, an inherently cruel and inhumane punishment; 
    • The Iraqi Transitional Government should exercise the option provided in the Iraqi Special Tribunal statute for the appointment of non-Iraqi judges who have experience trying cases of genocide, war crimes, and/or crimes against humanity, and who are persons of high moral character, impartiality and integrity; these judges should be recommended by the United Nations;
    • The Iraqi Transitional Government should revise the tribunal’s statute, and the rules of procedure and evidence to ensure that fair trial protections are guaranteed; a mechanism must be created to ensure that these protections are implemented in practice;
    • The statute should be amended to permit the appointment to the Tribunal of non-Iraqi prosecutors and investigative judges with experience prosecuting and/or investigating genocide, war crimes, and/or crimes against humanity, and with high moral character, impartiality and integrity; these prosecutors and investigative judges should be recommended by the United Nations; and
    • The Iraqi Transitional Government and its successor need to ensure that the Iraqi Special Tribunal is independent of political influence. 
  • Establish a Commission for Missing Persons that initially engages international as well as Iraqi expertise and administration. The Commission should establish a system for protecting and preserving mass graves, create protocols for exhumations of gravesites, and set and oversee implementation of priorities for exhumations of mass gravesites that balance the needs of families to identify victims alongside the evidentiary needs of criminal proceedings against the alleged perpetrators.
  • Appoint a body of Iraqi and international experts to recommend standards and best practices for the handling of confiscated documents of the former government, including for the following purposes: 1) establishing a chain of custody in order to assure authenticity; 2) facilitating the archiving of documents in a manner that addresses both the evidentiary needs of criminal judicial proceedings against former high officials, as well as the humanitarian needs of victims' families of the former government to resolve the fate of missing loved ones; and 3) working with Iraqi nongovernmental organizations and political parties to secure, to the extent possible, the return to a national archive of originals of state documents currently in their possession.

To the United States and other coalition member governments

  • Ensure that officials of the Iraqi Special Tribunal and the Iraqi criminal courts have access to all confiscated documents to determine whether they represent potential evidence in criminal investigations and proceedings.

To the international donor community

  • Ensure that resources are made available for key forensic and documentary evidence preservation priorities, including for documentation, humanitarian, and truth-telling purposes separate from any trials for serious past crimes.

[45] Human Rights Watch interview, May 8, 2003, Basra, Tanuma neighborhood.

[46] Physicians for Human Rights, “Southern Iraq:  Reports of Human Rights Abuses and Views on Justice, Reconstruction and Government,” September 18, 2003, pp.6-7.

<<previous  |  index  |  next>>February 2005