ICTJ in the News

December 4, 2003

ICTJ Op-Ed: U.S. justice with an Iraqi face?

International Herald Tribune

By Hanny Megally and Paul van Zyl

NEW YORK An Iraqi Special Tribunal, designed to prosecute those responsible for gross violations of human rights under Saddam Hussein, is reportedly due to be established later this week. Human rights organizations and victims of these atrocious crimes have been campaigning for accountability in Iraq for decades, long before it became politically expedient to draw attention to this issue. For them, the establishment of this tribunal should be welcome, but, sadly, it is not. The tribunal typifies much of what is wrong with U.S. policy toward Iraq.

The most important attributes of any judicial process are legitimacy and independence. The tribunal is due to be established by an order passed by the Iraqi Governing Council on behalf of the U.S.-led Coalition Provisional Authority. No one should be under any illusions that the Governing Council, which has no legislative authority or independent access to funding, is the real power behind the tribunal. Any tribunal established on behalf of the Coalition Provisional Authority will not be able to rid itself of the perception - and the fact - that it is an instrument of American power.

The U.S. government has sought to undermine the International Criminal Court, denied foreign nationals detained at Guantanamo Bay their fundamental rights, and has a record of supporting abusive regimes in the Middle East, and therefore, should not be involved in human rights trials in Iraq. If it is, these trials will all too easily be discredited as hypocritical exercises in victor's justice.

It is also not clear whether international humanitarian law authorizes an occupying power to establish such a tribunal. Justice dispensed by an occupying power will therefore be of dubious legality and questionable legitimacy. In contrast, legitimate trials in Iraq could send a powerful signal throughout the Middle East that abusive leaders will be held accountable for their crimes. But this opportunity will be lost if authoritarian regimes are able to portray these trials as yet another example of U.S. interference in the region.

An additional concern relates to the means by which international experts are recruited to help support this tribunal. Separate judicial assessments carried out on behalf of the Coalition Provisional Authority and the United Nations have concluded that the Iraqi judicial system is chronically dysfunctional and that Iraqi judges, prosecutors and investigators will require substantial assistance in handling complex human rights cases, which may require interviewing hundreds of witness, analyzing thousands of documents and conducting sensitive forensic investigations.

The Coalition Provisional Authority will almost certainly manage the recruitment and appointment of international judges, prosecutors and investigators who are needed to provide assistance to their Iraqi counterparts. This will reinforce the perception that the authority is controlling these trials. In fact, it is more than just a perception: The authority has already drafted a document that sets out an investigative and prosecutorial strategy in great detail, including the identification of several people currently in custody who should be prosecuted first.

This is ironic because one of the central rationales offered by the authority for opposing significant international involvement in these trials was the view that they should be "Iraqi-led" and "Iraqi-owned." The proposed tribunal will have little to do with Iraqi ownership or control - it will be nothing more than an Iraqi veneer applied to an American process.

Given the significance of these concerns, what should be done? First, the Coalition Provisional Authority should abandon its plans to establish this tribunal. A more representative Iraqi administration with real legislative authority will be established in mid-2004. It should be this administration's prerogative to establish a human rights tribunal.

In the interim, the Governing Council and the United Nations could appoint an impartial commission of Iraqis and international experts - similar to those appointed in the former Yugoslavia and Rwanda before the establishment of the international tribunals - to consult widely and then advise the new administration on a comprehensive set of policies designed to deal effectively with Iraq's legacy of abuse.

The Governing Council and the United Nations - not the Coalition Provisional Authority - could begin immediately to recruit and train Iraqi judges, prosecutors and investigators. Under the supervision of a joint Governing Council-UN committee, these recruits could undertake preliminary investigations and prepare cases.

The goal of establishing a democratic Iraq based on the rule of law and respect for human rights will be subverted unless a legitimate and comprehensive process to deal with past crimes is established. The success of this endeavor will be compromised if it is controlled, overtly or covertly, by the United States.

Hanny Megally is director of the Middle East and North Africa program and Paul van Zyl is director of country programs at the International Center for Transitional Justice, based in New York.