ICTJ in the News

December 10, 2003

Iraq to form war crimes court, but critics assail lack of experience

Chicago Tribune

By Evan Osnos

BAGHDAD-In a closely watched step toward confronting Iraq's darkest chapters, the Iraqi Governing Council is poised to announce the creation this week of a war crimes tribunal to bring charges against former members of Saddam Hussein's leadership.

But already the court is drawing criticism from international justice experts, who charge it is hastily designed and ill-equipped to conduct complex war crimes cases.

As proposed, the court would be operated entirely by Iraqi judges and lawyers, with broad powers to try individuals for everything from mass executions to wasting the nation's resources. Unlike UN-sponsored tribunals established to account for atrocities in Rwanda and the former Yugoslavia, the Iraqi court would not include active participation by the United Nations or foreign jurists who specialize in the mechanics of war crimes courts.

Iraqi and U.S. officials involved in drafting the plan say the departure from those precedents reflects deep feelings among Iraqis that they themselves must control the process of reconciling 35 years of injustices committed by and against their compatriots.

The Associated Press reported Tuesday that the Iraqi Governing Council approved the plan behind closed doors and was preparing to formally establish the court on Wednesday.

The Bush administration has trumpeted the tribunal plan as a measure of Iraqi independence and progress. Ordinarily, the tribunal plan, which was drafted in close cooperation with Bush administration lawyers, would require the signature of Paul Bremer, the American administrator for Iraq. But Bremer is expected to temporarily hand legislative authority to the Governing Council so that it can formally establish the court.

"This is not for the rest of the world to do. This court is for Iraqis and it must be from Iraqis," said Mahmoud Othman, a member of the Governing Council.

But critics worry that the Iraqi legal community--weakened by more than three decades of show trials, summary executions and political interference in the judiciary--lacks the experience to tackle complex war crimes cases.

"This will be the first effort at justice in a postconflict society that has avoided international involvement and engagement, and I think that's a mistake" said Richard Dicker, head of the international justice program at New York-based Human Rights Watch.

"That's not to say that there aren't many very capable Iraqi judges or lawyers," Dicker said. "But with the complexity of crimes-against-humanity trials and genocide trials, you cannot just take a leap of faith with a two-week training course and think that that will address the lack of experience."

While no one involved cites a date for the court to open, the coalition says it has earmarked at least $90 million in start-up funds and is training Iraqis to begin pretrial investigations.

The plan has taken shape over several months, with drafts exchanged privately between Iraqi and U.S. authorities. According to those who have seen it, the plan calls for multiple five-judge panels to preside over cases at various locations yet to be named in Baghdad. The death penalty could be imposed, under the draft plan.

Rights groups charge that the plan has been produced under strict oversight of U.S. officials and that the American imprimatur will undermine its credibility.

"These trials really have global implications. It is the first time in the Middle East that a leader has been held responsible for gross violations of human rights," said Paul van Zyl, director of country programs for the International Center for Transitional Justice. "But in its current formulation, it is almost certainly going to taint them."

Some critics had urged the Iraqi drafters to delay establishing the court until after July 2004, when the U.S. is scheduled to cede authority to an Iraqi-led provisional leadership.

Iraqi political leaders, however, say they are reluctant to wait.

"The people who were victims of those crimes want to see punishment as soon as possible," Othman said. "That's why we are working on it while under occupation. I have always told human-rights organizations that they should be more worried about the victims than the criminals."

Tribune foreign correspondent Christine Spolar contributed to this report.