The Iraqi Governing Council (IGC), with the blessing of the Bush administration, announced on December 10, 2003 its plan to establish a national tribunal to prosecute members of Saddam Hussein’s regime. Only days later, Saddam himself was captured by U.S. forces, sharply focusing attention on his potential trial. The Iraqi Special Tribunal (IST) will carry the combined weight of Iraqi, regional and international expectations. In order to withstand the scrutiny of the Iraqi people and the international community, trials need to be seen to be fair, impartial, independent and legitimate. Iraq’s health minister, Khudayr Abbas, noted that an internationally recognized fair trial is necessary if Iraqis want to prove that “the new Iraq is different from Saddam’s Iraq.”1
Trials can leave a detailed, definitive record of the massive abuses of Saddam’s regime and give victims the chance to have their suffering publicly validated and acknowledged. The tribunal can also contribute to the development and consolidation of democratic norms by demonstrating to Iraqis how a fair and impartial justice system operates. Regionally, the trials can showcase the rule of law and provide a model for other peoples who may one day hope to bring their own leaders to justice. To those leaders, such trials will be a wake-up call, much as the public executions of Nicoli Ceacescu and his wife were. At the international level, the trials will contribute to the strength of the emerging regime against impunity and to the further development of international criminal law.
Despite the high stakes, the IGC and the Bush administration have created a court with grave flaws. In critical areas such as jurisdiction and the qualification of personnel, the draft of the statute did not heed the lessons learned from the three currently operating international criminal tribunals: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). The IST also will not be able to take advantage of the experience and expertise of those who have worked for any of the courts, because the involvement of the international community has been relegated to the status of advisers and observers. Relying almost exclusively on domestic resources is not a viable strategy, given the state of the Iraqi judiciary, and will cast the shadow of victors’ and victims’ justice over the court. The successful prosecution of Saddam and his top associates is too important to be risked on a flawed transitional justice vehicle. In order to protect the integrity and efficacy of the Iraqi Special Tribunal, key changes need to be made to the statute.
THE STATUTE OF THE IST
The new Iraqi tribunal, seated in Baghdad at the former Gift Museum, will prosecute the international crimes of genocide, crimes against humanity and war crimes.2 The definitions are included in full detail and are virtually identical to those in the statute of the International Criminal Court. It also covers violations of Iraqi law, namely the attempt to manipulate the judiciary, the wastage of national resources and squandering of public assets and funds, and policies that may lead to the threat of war or the use of the armed forces against an Arab country.3 The rules of procedure will be based on the 1968 Iraqi criminal code. The tribunal has a vast jurisdictional scope. “Any Iraqi national or resident” can be tried. The statute covers crimes committed over the entire 35-year period of Baath party control, July 1968 through May 1, 2003. It encompasses crimes committed in Iraq or elsewhere, specifically mentioning the wars against Iran and Kuwait. There will be at least one five judge trial chamber, and a nine-judge appeals chamber. Salem Chalabi was named as head of the tribunal on April 20, 2004; he is a London-based lawyer and the nephew of IGC member Ahmed Chalabi.
Nearly all the tribunal’s personnel must be Iraqi nationals; the staff of the administration department is not covered by this requirement. Membership in the Baath party disqualifies an individual from working for the tribunal. There are very limited roles for international personnel to play. The Governing Council can appoint non-Iraqi judges if it deems it necessary. Chambers, the investigating judges and the prosecutor’s office are required to appoint non-Iraqi nationals to act as advisers or observers, but the administration department has no such requirement. Although defendants can choose their own lawyers, they must have an Iraqi lead counsel.
THE STATUTE’S FLAWS
The IST statute relies heavily on the language used in the statutes of the other three functioning criminal courts – the ICTY, ICTR and SCSL.4 However, it is the differences between the statutes that reveal flaws that will hamper the effective functioning and the legitimacy of the IST. This section compares six significant divergences: personal and temporal jurisdiction, the qualifications of key court personnel, the penalties to be imposed, the role of the international community and the seat of the court.
Jurisdiction
Compared to the other tribunals, the IST’s personal jurisdiction is oddly circumscribed. In the statutes of the ICTY, ICTR and SCSL, the language covers crimes committed by any individual, regardless of nationality, on the territory of the specified state, but the Iraqi tribunal reverses this formula. The IST covers crimes committed by Iraqis, including crimes committed outside the territory of Iraq, but not crimes committed by outsiders on Iraqi soil.
Presumably this language was chosen because it ensures that members of the coalition cannot be tried by the IST. This will only add weight to the criticism that this tribunal is an instrument of victors’ justice.
Simultaneously, with respect to Iraqis, the IST’s jurisdiction is far more sweeping than that of any of the other three tribunals. Any Iraqi, from Saddam to a foot soldier, can be prosecuted for the crimes covered by the statute. Al-Din offered this example: “[T]ake the artillery soldier whose officer gave him chemical weapons to fire. The soldier didn’t know they were chemical weapons, but the officer knew.
In that case, we would charge the officer. But if we have evidence that the soldier knew, we would charge him with the crime, too.”5 In contrast, the ICTY and ICTR exercise jurisdiction over “persons responsible for serious violations,” and the SCSL can prosecute those who bear “the greatest responsibility.” The SCSL uses a narrower formula precisely because of “lessons learned” from the ICTY/ICTR: overly broad jurisdiction allowed for the prosecution of too many cases, which increased both the cost and lifespan of the ad hoc tribunals and wasted resources on the prosecution of so-called “small fish” such as Dusan Tadic. Given the widespread use of chemical weapons by the Iraqi army during the eight-year Iran-Iraq War, al-Din’s interpretation of the statute’s personal jurisdiction will drown the court in “small fish” trials. The IST’s temporal jurisdiction is likewise far longer than that of any of the other tribunals, covering crimes over a 35-year period.
The sweeping personal and temporal jurisdiction of the tribunal threaten to overwhelm it. IGC members said they hoped to finish 400 trials in four years; Salem Chalabi envisages 200 to 300 cases.6 Either number represents a crushing case load, going far beyond what any previous transitional-justice court has attempted. The ICTY indicted over 120 individuals, the ICTR indicted 76, and the SCSL to date has indicted 13. The large number of indictees at the ad hoc tribunals eventually led the Security Council to amend their statutes to create additional trial chambers and to provide for ad-litem judges, but even with these changes both tribunals will operate for at least a decade. Since 1995, the ICTR has completed cases against 11 accused with another nine persons at the appeals stage, meaning nearly a third of its indictees are still awaiting trial.7 The ICTY has completed cases against 30 accused, and another 16 persons are at the appeals stage; although only 22 per cent of its indictees are awaiting trial, another 18 percent remain at large.8 Partly as a response to these experiences, the SCSL was given a three-year mandate and a tightly circumscribed jurisdiction. It may be able to finish its work on schedule, but it will at most hold four trials (assuming no other indictments are forthcoming.)9
The United Nations believes that one lesson from the ad hoc tribunals is that trying crowds of people is costly, cumbersome and raises serious due process issues.10 The ICTY, whose case load most closely approximates the estimates for the IST, has an annual budget of $100 million and will likely operate through 2008 to finish its case load, a total of 13 years of trials and appeals. Clearly, efforts by the IST to try hundreds of individuals will place enormous strains on its cost and life span.
More important, the tribunal’s legitimacy and efficacy could be seriously undermined by attempts to handle too many cases. In order to try 400 persons in four years, one ICG member estimates the IST will run ten trial chambers.11 This means that each trial chamber would need to hear four cases a year, a completely unrealistic scenario. The trial chambers at the ad hoc tribunals hear no more than two cases simultaneously. Even the Furundzija case at the ICTY, which required a mere ten trial days, lasted from June to November 1998. It is not unusual for cases to require 100 or more trial days. Another concern is the number of judges required to seat multiple chambers; if indeed there are ten chambers, 59 judges would be required. For reasons detailed below, the IST will be hard-pressed to find 14 Iraqi judges qualified to handle complex mass atrocity cases, let alone several dozen. Overly quick proceedings and/or those presided over by inexperienced judges risk compromising due process and becoming little more than political show trials.
Qualifications of Personnel
The IST statute does not set high enough standards for the qualifications of key court personnel and in some cases fails to establish any standard at all. Judges and investigative judges are required to be of “high moral character, impartiality and integrity who possess the qualifications required for appointment to the highest judicial offices,” and “due account shall be taken of the experience of the judges in criminal-law and trial procedures.” Judges and investigative judges do not need to have any experience in international law, including international humanitarian and human-rights law, as is included in the “due account” language of the ICTY, ICTR, and SCSL. The statute does not state that trial judges shall not accept or seek instructions from any government or any other source, a stipulation present in the other statutes.
There are no standards for the selection of prosecutors or the chief prosecutor.12 The other three tribunals require the chief prosecutor to possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases. The other courts have found that proceedings run more smoothly with experienced, competent judges and prosecutors.
Penalties
The IST will likely employ the death penalty, whereas the other tribunals forbid its use. According to Article 24, “the penalties that shall be imposed . . . shall be those prescribed by Iraqi law,” which allows the death penalty for a wide range of political and criminal offenses.13 Paul Bremer suspended the death penalty during the U.S. occupation, but once sovereignty is returned to an Iraqi government, it can be reinstated. IGC officials have stated publicly that the death penalty would be available for those being tried at the IST. This will damage the court’s legitimacy with important outside actors, such as the United Nations and the EU. Kofi Annan stated that the United Nations would not support bringing Saddam before a tribunal with the death penalty, and many European states also oppose capital punishment.14 This could make it very difficult for the IST to receive outside funds except from the United States, a factor that would inevitably tarnish the court’s integrity.
International Involvement
The degree of international involvement is an issue that has bedeviled recent efforts to prosecute international human-rights crimes. Victims need to see justice being done and to have a sense of ownership of the process. On the other hand, there are legitimate fears about security and the state of the justice system in countries emerging from mass-atrocity situations. From Chile to Indonesia to Rwanda to Guatemala, national courts have proven unable to try those responsible for mass atrocities or incapable of holding trials that meet the minimum standards for due process and impartiality. This is not surprising, as the judicial system is often one of the first casualties of dictatorship or war.
Both the ICTY and ICTR are fully international tribunals, mandated by the Security Council, staffed by internationals and paid for out of the U.N. budget. Neither tribunal operates in-country; the war was still ongoing when the ICTY was created, and Rwanda was deemed too insecure in the aftermath of the genocide. But the victims found the two courts remote from the killing fields, and this lessened the courts’ impact on the very societies they were representing. Even some of those who testified before the ICTR did not find out until much later what happened to the accused, thanks to poor media coverage and inadequate outreach efforts. The architects of the SCSL made important changes based on the criticisms of its predecessors. In an effort to make justice accessible and meaningful to all Sierra Leoneans, the SCSL sits in Freetown. The presence of what at the time was the largest U.N. peacekeeping force in operation lessened concerns about safety and stability. Should the security situation require it, the court can locate to a third country. The SCSL also incorporates a large degree of local participation – 50 percent of the court’s staff is Sierra Leonean, and the government made several key personnel appointments.
Iraqis have been adamant that criminal prosecutions of Saddam’s regime be Iraqi owned. Suggestions that international involvement would be beneficial have provoked defenses of Iraqi sovereignty, charges of disrespect for Iraqi jurists, and an insistence that Iraqis are capable of going it alone. Justice Minister Abdul Rahman al-Chalabi declared that “the presence of foreign judges will undermine (Iraqi) sovereignty and would undercut the value of the Iraqi judiciary.”15
Recent studies suggest Iraq’s justice system is in no condition to shoulder the weight of international criminal prosecutions without substantial international assistance. Saddam’s rule degraded and compromised the judiciary. After an examination of the state of the Iraqi judiciary in August, the United Nations concluded that it was “not capable of rendering fair and effective justice for violations of international humanitarian law and other serious criminal offenses involving the prior regime.”16 A joint UNDP/World Bank needs assessment stated that under Saddam “the judicial systems (sic) was manipulated and corrupted to serve political goals. Key legal actors, including public prosecutors and defenders, were marginalized . . . . Legal education suffered along with the rest of higher education and needs to be modernized.” The report considered training programs on “international human-rights standards, developments in international criminal law, and modern approaches to basic legal skills and civil rights” to be an immediate need.17 A judicial review committee dismissed 25 percent of Iraq’s judges for corruption, incompetence or membership in the Baath party.18
A U.S. Department of Justice assessment team went to Iraq in May 2003; their report was marked sensitive and not publicly released, although its results were reported to be in line with the U.N. studies.19 A U.S. JAG officer who escorted one of the DOJ teams around Iraq for two weeks described the shattered physical state of Iraq’s judicial infrastructure: “For the most part, all courthouse facilities need major repairs due to years of neglect and the looting that took place after the fall of the regime . . . . Most have no phones, no computers, no copiers and limited furniture. Many lost all legal and administrative records in the looting.”20 Rebuilding the human and physical resources of the Iraqi judicial system is a prerequisite for holding trials that can withstand international and domestic scrutiny, but this process will take years.
Iraqi judges and lawyers have little experience with the burgeoning and complicated field of international criminal law. The past decade has seen an impressive body of rules, procedures, definitions and precedents developed, but even Paul Bremer admitted that under Saddam, Iraqis were prevented “from learning the latest information in such vital areas as health, law and science.”21 Patricia Wald, a former U.S. judge who sat on the ICTY, voiced the concerns of many: “Obviously, you need informed and impartial judges. Even if you do find Iraqi judges who aren’t tainted in any way, I think the lack of exposure of the whole system for decades to what was happening in the outside world could be a real problem.”22
Internet access was severely limited during Saddam’s rule; reportedly, only 500 computers had links to the web in regime controlled areas, subject to tight control by government censors.23 It seems unlikely Iraqi judges and lawyers were downloading documents from the ICTY or ICTR. Iraqi lawyers were also cut off from advances in criminal prosecutions; one lamented that they “were prevented from having the international technology for collecting evidence. In fingerprinting . . . we had to use very ancient ways that might not lead to the truth.”24
In particular, there have been enormous strides taken in the prosecution of gender based crimes of violence. The ICTR handed down the first conviction for rape as genocide, and the ad hoc tribunals have established ground-breaking definitions of rape. The other three courts pay special attention to the needs of women and girls, but there are no such provisions in the IST statute. The record of prosecuting gender-based-violence crimes in Iraq is not encouraging. For many such crimes, the accused could receive a reduced sentence by marrying the victim.25 A 1990 law all but granted immunity to men accused of honor killings; the U.N. Commission for Human Rights reported more than 4,000 women murdered in such crimes in Iraq since 1991.26 It is doubtful that a court staffed solely by Iraqis will have the expertise to handle cases in this sensitive and specialized area of international criminal law.
The training and experiences of judges under the Baath regime are also inadequate for the task of presiding over complex and lengthy mass-atrocity trials. According to Iraqi lawyers, the two-year course judges were required to take did not teach legal concepts but instead was an indoctrination into Baathist precepts.27 Most trials in Iraq lasted for a few days, and a court might hear 20 to 30 cases a day.28 Judges have “no concept of case management,” a member of the DOJ team stated flatly, and another expert noted that Iraqi judges lack “the expertise and capability to handle cases involving a massive amount of evidence.”29
Some Iraqis scoff at the notion they cannot handle the trials themselves. Upon finishing a U.S.-sponsored course on international law, the head of the Iraqi Appellate Court, Judge Qasem Ayash, said: “They will bring the accused; they will bring his file. The judge reads it carefully and decides whether he ought to be charged or not. There’s nothing to it. It’s like trying any other criminal case.”30 Veterans of other tribunals say exactly the opposite, that such cases are not like trying domestic murders. A mass-atrocity trial involves multiple incidents committed over a wide territory and time span, scores or hundreds of witnesses, and complicated forensic and documentary evidence. The Krstic case, the only case to result in a genocide conviction at the ICTY thus far, required 98 trial days; a total of 1,093 exhibits and 79 witnesses were placed into evidence.31 Even a relatively uncomplicated trial, such as the Jelisic case, which only took 27 trial days, involved 44 witnesses and 82 exhibits. The longest trial to date at the ICTY, the Blaskic case, lasted 223 trial days over 32 months, and included 159 witnesses and 1,414 exhibits.
The Iraqis have much work to do to prepare for trying these cases. The international crimes of genocide and war crimes were never incorporated into the Iraqi legal code, but they must be before the trials can start. Iraqi criminal codes need to be brought into line with internationally recognized standards for fair trials. For example, confessions extracted under torture are admissible under certain circumstances, and guilt does not need to be established beyond a reasonable doubt.32 The documentary evidence needs to be gathered from the numerous sources it is now scattered between, including the U.S. government, Kurdish groups, individuals and other organizations. There are literally tons of documents to be organized, analyzed and stored, but there is not yet a physical location or a computer database for the information. After a visit to the ICTY by ten Iraqi judges and prosecutors, Salem Chalabi commented, “Seeing the software and the monitors recording testimony in the courtrooms was an extremely powerful message for our judges. It showed them how Iraq is lagging behind.”33 Thousands of witnesses must be located and their statements taken. Given the charges of genocide and crimes against humanity, forensic evidence from the estimated 260 mass graves in Iraq will need to be gathered, analyzed and prepared for trial. One expert points out that there is not a single laboratory in Iraq that can do DNA testing.34 The Iraqis are simply not equipped to undertake these mammoth tasks alone.
Iraqis should also consider the financial costs of mounting a tribunal without international participation. As Michael Scharf writes, “If done right, international justice is extremely expensive.”35 Through 2003, the ICTY has spent close to $695 million, and the ICTR has spent almost $544 million. The SCSL is spending a much more modest $30 million a year, but it is trying fewer than a dozen people, and in any case, its budget is grossly inadequate to the tasks assigned to it. Iraq is in dire financial straits, facing huge reconstruction costs and a staggering foreign debt. Paying for a tribunal “done right” will be burdensome, and if the only significant international support comes from the United States, there will certainly be loud accusations of “victors’ justice.”
The Seat of the Court
Even assuming there are judges and prosecutors up to the task, there are concerns about the safety of those who choose to participate. As ICG member Mahmoud Othman explains, “Security will be a very big issue. We have to realize that there are people who will do everything they can to block these trials.”36 Iraqis who cooperate with the Americans have been targeted, and as violence spiraled in April 2004, even Iraqi security forces declined to confront the insurgents. There have been several devastating suicide attacks this year: 31 people died in a January 18 explosion in Baghdad that targeted Iraqis waiting to enter the CPA compound; 109 people were killed on February 1 in twin bombings at the headquarters of the two main Kurdish parties; 53 people were killed on February 10, many of them lined up to apply for jobs as Iraqi police officers; and the next day 47 people were killed, many of them waiting to apply for jobs with the Iraqi army. A daring daylight raid on February 5 left 25 people dead, 15 of them policemen, and emptied the jail. In all, at least 350 Iraqi police and security personnel have been killed in car bombings since May 2003.37 There has also been a campaign to assassinate Iraqi intellectuals, including lawyers and judges, that has claimed an estimated 500-1,000 lives over the same period.38
It is not surprising that many Iraqis are afraid to cooperate with the United States, and some judges have said they would not join the tribunal for fear of retribution. When seven investigative judges and four prosecutors were named in April 2004 to work on the Saddam case, their identities were withheld “due to security concerns” according to Chalabi.39 Unless the security situation is under control, beginning trials in Baghdad is a very risky gamble.
Unfortunately, the statute does not have a stipulation that would allow the IST or those convicted by it to be removed to another country in the event the security situation in Iraq required it. It is not difficult to imagine circumstances under which such a move would be necessary. The SCSL has faced two serious security threats – a failed coup attempt that reportedly was aimed at preventing the SCSL from beginning its work, and an effort by a high-profile indictee to stir up civil unrest – but it can move to another country if necessary. The trials of Saddam and certain other members of the inner circle will require extraordinary security, and some communities in Iraq may react violently once arrests occur and trials begin. It would have been prudent to provide the IST with the flexibility to relocate in the face of serious domestic instability.
VICTORS’ JUSTICE?
From its very inception, the Iraq tribunal faced charges that it would merely be dispensing victors’ justice. The lack of a genuine international element in its operation will only add fuel to such suspicions, jeopardizing the court’s legitimacy. There is no avoiding the fact that this tribunal will have a hard time shaking the label of an “American court.” Critics are already questioning the legality of passing the law creating the tribunal while Iraq is under U.S. occupation. Protestations that the IST is an Iraqi creation are specious; Paul Bremer did not sign the law, but he gave the Governing Council his permission not to seek his permission. CPA Order #48 delegated the authority to create a tribunal to the IGC, although Bremer “reserve[s] the authority to alter the statute . . . or any elements of crimes or rules of procedure” in the interests of security.40 The Order also explicitly states that the CPA and IGC have “discussed intensively” the proposed statute. Reportedly, the provision allowing non-Iraqi judges was inserted at the last minute at the request of the CPA.41 “We understand the value of having international participation and pointed that out to the Iraqis,” said one State Department official.
Yet there are distinctly American, and not international, fingerprints all over the court. The Bush administration worked closely with the Iraqis on the draft statute, and stressed that it would be “in close touch with the Iraqis all along” the process.42 The U.S.-appointed IGC is responsible for choosing the judges, investigative judges and prosecutors who will serve on the tribunal. In March 2004, the Justice Department sent about 50 investigators, lawyers and prosecutors to Baghdad to the newly created Regime Crimes Advisor’s Office in the CPA to help draw up the indictments against Saddam and others, work out procedural rules for the IST and organize evidence.43 A majority of the most-wanted are in U.S. custody, as are hundreds of thousands of documents seized by the Iraq Survey Group after the regime fell, the files of the now-defunct Indict group (which itself received significant American assistance), and 18 tons of documents brought out of northern Iraq in 1991.44 The United States has organized several workshops for Iraqi judges and lawyers on fair-trial standards and international criminal law and procedures. The United States Institute of Peace organized and funded a short visit to The Hague for 10 Iraqi judges and prosecutors so they could meet with veterans of other war-crimes tribunals.45 Washington has earmarked $75 million to help set up the IST and cover costs of the investigations, even as other potential donors are likely to abstain because the statute provides for the death penalty.
NGOs have complained about the secrecy surrounding the drafting of the statute. Human Rights Watch expressed concern that the statute was issued “without providing any opportunity for transparent consultation or public comment”; although it requested the opportunity to comment on the draft statute, HRW was refused by both the CPA and IGC.46 Finally, the Bush administration’s well-known antipathy to the International Criminal Court makes its support for an almost fully domestic-Iraqi tribunal look suspiciously like a calculated effort to undermine the fledgling ICC. Full international participation could help balance the perception that the IST is under undue American influence.
VICTIMS’ JUSTICE?
Not surprisingly, Saddam’s victims demand revenge. Emotions against the former dictator and his henchmen run high, and most Iraqis want Saddam to be executed, preferably soon. Amar al-Hakim of the SCIRI says: “We want Saddam to get what he deserves. I believe he will be sentenced to hundreds of death sentences at a fair trial because he’s responsible for all the massacres and crimes in Iraq.”47 Yet al-Hakim also recognizes that this court could be seen as a tool of vengeance: “We are concerned never to be accused of seeking revenge by setting up this court.”48
The statute allows for a glaring instance of “victims’ justice”: persons who suffered under Saddam’s rule are not ruled out as judges or prosecutors. Dara Noor al-Din, a leading candidate for a judgeship on the IST, was jailed in the notorious Abu Ghraib prison. Wael Abd al-Latif, another judge whose name has been mentioned in connection with serving on the IST, was tortured while in prison, where he spent a year in solitary confinement. Trials can hardly be fair and impartial if the judge or a member of his/her family was jailed and tortured by the accused.
Trials tainted by personal bias (or the appearance of bias) also risk stirring up trouble with the Sunni community. If there is a rush to judge and execute former regime officials, who are overwhelmingly Sunni, it can only sharpen the Sunnis’ sense of marginalization in a post-Saddam Iraq. The other three international courts have all experienced discontent with their indictments. Many Serbs felt the ICTY unfairly targeted them; Hutus complained about the double standard whereby the ICTR indicted Hutus for mass atrocities but failed to indict the Tutsi-dominated RPF for its abuses; controversy continues to surround the SCSL’s decision to indict the leaders of the pro-government Civilian Defense Forces, which some Sierra Leoneans argue protected them from the depredations of the rebels. The SCSL was forced to cut off CDF leader Sam Hinga Norman’s communication privileges for two weeks after he was overheard on the phone planning civil unrest. The other party to the call was subsequently arrested by the government.
Even with international participation, tribunals are open to charges of bias. Without it, the proceedings can easily be used as evidence of a vendetta against a particular community. International involvement could provide a new and fragile regime in Iraq with the opportunity to deflect blame for potentially unpopular court decisions to outsiders. Ethnoreligious tensions are already high in Iraq, and the IST must take care to avoid playing into them.
TRYING SADDAM
The most important case the tribunal could try would, of course, be that of Saddam Hussein. Saddam clearly could be charged with crimes under all four major articles of the statute; prosecutors will not lack for indictment counts against him, given the sweeping 35-year scope of the statute. There could be two separate genocide cases alone, one for the Anfal campaign against the Kurds and the other for the destruction of the southern marshes. But proving genocide is very difficult; only one genocide conviction has been handed down at the Yugoslav tribunal.49 Thus the prosecution of Saddam on genocide charges is of enormous importance because it will contribute to the further development of international criminal law; it cannot afford to be mishandled by inexperienced Iraqi judges and prosecutors. A genocide case ideally will leave a definitive, impartial record of what happened for Iraqis, especially those who still support Saddam, and for the international community. But if the trial is rushed so that Saddam can be executed as soon as possible, such a record will not be created.
Salem Chalabi says that Saddam may face charges on only a dozen specific incidents.50 In addition to the genocide charges, other incidents frequently mentioned include the bombing of Halabja, the suppression of the 1991 uprisings, the invasions of Iran and Kuwait, the occupation of Kuwait, the massacre of the men of the Barzani clan in 1983, and the deaths of Ayatollah Muhammad Bakir al-Sadr and his sister, Bint al-Huda. Observed a senior Iraqi judge: “Even if we stick to a few main charges, it is still a lot to cope with.
Kurds, Shias and other communities who suffered under Saddam want to have their cases aired properly in court. Many people will want to give evidence.”51 Yet the IST also needs to keep the Saddam case manageable. Prosecutors will need to be sensitive to the competing needs of various groups within Iraq to see justice done for the specific crime committed against them. A representative set of crimes should be prosecuted so that no group feels its suffering has been slighted, and the magnitude of the regime’s crimes is laid bare.
The timing of the trial is also critical to its fairness and legitimacy. The Iraqis publicly called for Saddam to be the first person tried by the tribunal, and some members of the IGC stated the trial could start by June 2004.52 IGC member Mowaffak Rubaie spoke for many when he stated, “We can’t delay this (Saddam’s trial). It’s an integral part of national reconciliation. We can’t begin the process of reconciliation until we show the people that the man at the top, who was responsible for unspeakable terror, is brought to justice . . . . He must be tried first – and executed first.”53
A quick trial would be a huge mistake. First, as noted above, an indictment against Saddam is likely to be lengthy and cannot be compiled in a few months, especially if two genocide cases are to be mounted. A fast trial will inevitably undermine the verdict’s legitimacy in the international community and even among some Iraqis. Especially if the Iraqis insist on proceeding without international involvement, there is an inevitable learning curve to prosecuting individuals for international crimes. The Iraqis should not risk botching the trial of Saddam simply because of domestic pressure for him to be punished. The ICTY and the SCSL, and many domestic prosecutions involving a criminal conspiracy, have used the prosecution of subordinates to gain evidence against those higher up the chain of command whose individual criminal responsibility is the most difficult to prove. The Iraq tribunal should not begin with the top of the pyramid, but build up the strongest possible case against Saddam on the top counts of the indictment (genocide) by trying his subordinates first.
RECOMMENDATIONS
The IST must be able to mount credible, fair, impartial and independent trials that meet international standards. In order to ensure the efficacy of the court, its statute needs to be amended.
* International personnel should be required, not simply as advisers and observers, but as judges, prosecutors and staff. Iraqis understandably demand the right to sit in judgment of their own leaders. But Iraqi ownership of the tribunal need not come at the cost of international involvement. The Iraqis (and the Bush administration) would do well to consider the blueprint of the hybrid SCSL. This model provides a wide measure of local participation while still drawing on the substantial international expertise available. The SCSL looked to other African countries for judges and personnel, and Iraq could do the same in its region. Not only could the Iraqis benefit from on-the-job training in fair, impartial criminal prosecutions; so could other Arab nationals.
* Qualifications for key court personnel should be tightened. In the overall composition of the chambers, due account should be taken of judges’ experience with international law, including international humanitarian and human-rights law, and criminal law. The chief prosecutor should have extensive experience in the investigation and prosecution of criminal cases. Due consideration of experience in handling sexual-violence crimes should be taken in the appointment of prosecutors and investigative judges.
* Persons who were imprisoned or tortured under the regime, or who had family members who were imprisoned, tortured or murdered, should not be eligible for appointment as judges or prosecutors.
* The tribunal’s jurisdictional scope should be circumscribed. It should concentrate its efforts on those “most responsible” for the mass atrocities committed in Iraq. This formulation allows the court to try the architects of the violence as well as to reach down into the lower echelons to try those who participated in especially egregious actions, but protects it from being overwhelmed by cases.
* To deal with those who would not fit under the IST’s narrower jurisdiction, a Truth and Reconciliation commission should be established.54 Because a TRC could begin its operations more quickly than the IST will be able to commence trials, the relationship between the IST and the TRC should be explicitly negotiated so that all parties concerned understand how the two institutions work. Specifically, issues should include whether or not testimony from the TRC can be used by the IST for prosecution. Sierra Leone ran its transitional-justice institutions simultaneously and ran into trouble because of the vague relationship between them.
* The tribunal should rule out the death penalty. Its use will undermine the court’s legitimacy abroad, and, if used frequently, it could feed the desire for vengeance. Assuming a greater degree of international involvement is permitted, abandoning the death penalty would also help Iraq pay for the tribunal. Donations from the United Nations and the EU will not be forthcoming as long as the death penalty is available.
* The tribunal should develop and make public a plan for witness protection and the security of the court’s personnel. This could reassure those who wish to cooperate that they are not risking their lives or those of their family. If judges, prosecutors or witnesses are intimidated or assassinated, the court could find itself unable to complete its work. A psychosocial program should also be put in place to offer victims (and court personnel) support and counseling; this unit should include trauma experts who are trained in handling sexual-violence cases.
* The statute should be amended to provide for the relocation of the tribunal if security conditions require such a move.
The Iraq tribunal is an opportunity for Iraqis to build a society on the rule of law, establish a democratic culture, and compile an unimpeachable record of the horrors of Saddam’s regime. Its operation can demonstrate to Iraqis what a fair, impartial justice system looks like after three decades without one. Iraqis must bring in the international community as full partners if this tribunal is successfully to undertake the enormous responsibilities before it.
1 Peter Slevin, “Iraqi Governing Council Says It Wants to Try Hussein,” The Washington Post, December 15, 2003, p. A9.
2 The statute is available at www.cpa.gov.
3 It should be noted that the first two Iraqi crimes are not in the same class of violations as the international crimes. Such violations would be better prosecuted by domestic courts than by a special tribunal.
4 The statutes are available at www.icty.org, www.ictr.org and www.sc-sl.org.
5 Susan Sachs, “Iraq to Create Tribunal to Prosecute Hussein War Crimes,” The New York Times, December 11, 2003, p. A14.
6 In December 2003, Chalabi put the number at 300, but in April 2004 he stated he believed the number of cases would be closer to 200. See Rajiv Chandrasekaran, “Rights Court Run by Iraqis Is Approved by Council,” The Washington Post, December 10, 2003, p. A1; and Marlise Simons, “Iraqis Meet With Warcrimes Trial Experts,” The New York Times, April 7, 2004. Chalabi admitted that the United States is pressuring the Iraqis to limit the number of cases to 20–50, fearing that too many trials would alienate the Sunnis. See Rory McCarthy, “Two-Year Wait for Saddam Trial,” Guardian UK, February 16, 2004, p. 2; and Simons, “Iraqis Meet With War-crimes Experts.”
7 See www.ictr.org. Twenty-three people are on trial, 22 await trial, and 10 remain at large.
8 See www.icty.org. Twenty-six persons are at the pre-trial stage and 20 are at large.
9 Thanks to joinder motions, members of the RUF, AFRC and CDFs will be tried together, and the final trial would be of Charles Taylor if he is turned over to the SCSL.
10 Interview with Office of Legal Affairs personnel, United Nations, New York, May 2003.
11 Chandrasekaran, “Rights Court Run by Iraqis Is Approved by Council.”
12 Yet when it comes to the non-Iraqi advisers/observers required under the IST statute, it is preferable that the persons have experience as a judge or prosecutor in their home country or have experience in international war-crime trials or tribunals.
13 See Iraq: The Death Penalty, Executions, and “Prison Cleansing” (New York: Human Rights Watch, March 2003).
14 Edith Lederer, “U.S. Briefs Security Council on Iraqi War-crimes Tribunal,” Associated Press, December 18, 2003.
15 Sarah El Deeb, “Official: Iraqi Judges Should Try Saddam,” Associated Press, December 19, 2003.
16 Slevin, “Iraqi Governing Council Says It Wants To Try Hussein.”
17 Joint Needs Assessment with the World Bank (New York: United Nations Development Program, October 2003), pp.47–50.
18 Briefing to U.N. Security Council by Emyr Jones Parry (UK) on February 25, 2004; through mid-July, 160 of Iraq’s 686 judges had been dismissed, according to David Blair, “New Iraqi Council To Set Up War-crimes Tribunal,” Daily Telegraph (London), July 16, 2003.
19 Jim Edwards, “From the Ground Up,” New Jersey Law Review, Vol. 174, No. 3, p. 2; and Chandrasekaran, “Rights Court Run by Iraqis Is Approved by Council.”
20 Frank J. McGovern, “Rebuilding a Shattered System: American Lawyers are Helping to Restore and Reshape the Legal Structure of Iraq,” The Pennsylvania Lawyer, September/October 2003, p. 35.
21 Coalition Provisional Authority, Press Release: Fulbright Scholarship Program Begins Anew in Iraq, October 21, 2003.
22 Vanessa Blum, “Crafting Justice in Iraq,” Legal Times, December 22, 2003.
23 U.S. State Department, 2002 Country Reports on Human Rights Practices, Iraq.
24 Evan Osnos, “Iraq’s Bind: Revenge or Justice?” Chicago Tribune, December 22, 2003.
25 Climate of Fear: Sexual Violence and Abduction of Women and Girls in Baghdad, New York: Human Rights Watch, July 2003.
26 U.N. Commission on Human Rights, Integration of the Human Rights of Women and the Gender Perspective (E/CN.4/2002/83), January 31, 2002, para. 23.
27 McGovern, “Rebuilding a Shattered System,” p. 35.
28 Scheherezade Faramarzi, “Iraqi Judges Get Trained for War Crimes,” Associated Press, January 4, 2004.
29 Edwards, “From the Ground Up”; and M. Cherif Bassiouni, “Ace in the Hole,” Chicago Tribune, December 21, 2003, p. 1.
30 Faramarzi, “Iraqi Judges Get Trained for War Crimes.”
31 See the case information sheets at www.icty.org.
32 Estimates are that 30 percent of criminal convictions in Iraq were the result of confessions extracted under torture. Edwards, “From the Ground Up.”
33 Simons, “Iraqis Meet With War-crimes Trial Experts.”
34 Osnos, “Iraq’s Bind: Revenge or Justice.”
35 Michael P. Scharf, “The Tools for Enforcing International Criminal Justice in the New Millennium,” DePaul Law Review, Vol. 49, No. 925, Summer 2000, p. 933.
36 Chandrasekaran, “Rights Court Run by Iraqis Is Approved by Council.”
37 Ariana Eunjung Cha, “Two Car Bombs Kill at Least 75 in Central Iraq,” The Washington Post, February 11, 2004, p. A1.
38 Jeffrey Gettleman, “Assassinations Tear Into Iraq’s Educated Class,” The New York Times, February 7, 2004, p. A1.
39 Bassam Mroue, “Identities Kept Secret in Saddam’s Trial,” Associated Press, April 21, 2004.
40 Coalition Provisional Authority Order No. 48, Delegation of Authority Regarding an Iraqi Special Tribunal, December 10, 2003, section 1.
41 Chandrasekaran, “Rights Court Run by Iraqis Is Approved by Council”; and Slevin, “Iraqi Governing Council Says It Wants To Try Hussein.”
42 U.S. Department of State Daily Briefing, December 15, 2003.
43 Neil A. Lewis and David Johnston, “U.S. team Is Sent to Develop Case in Hussein Trial,” The New York Times, March 7, 2004.
44 Ibid.
45 Simons, “Iraqis Meet With War-crimes Trial Experts.”
46 Human Rights Watch memorandum, The Statute of the Iraqi Special Tribunal, December 2003.
47 Reuters AlertNet, “Saddam’s Arrest to Sharpen Debate on Iraq Tribunal,” December 14, 2003, online at http://www.alertnet.org.
48 Chandrasekaran, “Rights Court Run by Iraqis Is Approved by Council.”
49 Radislav Krstic was convicted on genocide charges for his role in the Srebernica massacre. The ICTY has set the bar for proving genocide so high many fear Slobodan Milosevic will be acquitted on those counts of his indictment.
50 Rajiv Chandrasekaran, “Iraqi Planners Hope to Start Trial by Spring,” The Washington Post, December 16, 2003, p. A1.
51 Philip Sherwell and Damien McElroy, “Saddam on the Rack,” Sunday Telegraph (London), December 21, 2003, p. 14.
52 For example, see Noor al-Din’s statement in Sachs, “Iraq to Create Tribunal to Prosecute Hussein War Crimes.”
53 Chandrasekaran, “Iraqi Planners Hope to Start Trial by Spring.” A week later Rubaie told the Sunday Telegraph (London) that the best estimate for how long it will take to convict Saddam is five years, according to Sherwell and McElroy, “Saddam on the Rack.”
54 The Transitional Justice Working Group of the State Department-sponsored Future of Iraq project offers a detailed blueprint for a TRC, including draft legislation to create it. Transitional Justice in Post-Saddam Iraq: The Road to Re-establishing Rule of Law and Restoring Civil Society, March 2003, online at www.jagcnet.army.mil.
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