ICTJ in the News

July 16, 2003

Iraqis Weigh Trials for Regime Leaders

The Boston Globe

By Brian MacQuarrie and Bryan Bender

BAGHDAD - In its first move to confront Iraq's legacy of brutal repression, the new Governing Council has created a judicial panel to establish a legal framework for trying Saddam Hussein and his chief associates for war crimes, according to a major Iraqi political party.

Entifadh Qanbar, spokesman for the Iraqi National Congress, said yesterday that the council wants to try the former dictator if he is captured, or in absentia, as well as the other 55 "most-wanted" leaders of the toppled regime. He said the trials, for crimes against humanity and genocide, would take place in Iraqi courts.

The Hussein regime is accused, among other allegations, of killing 8,000 Kurds in 1983, and in the deaths of an estimated 300,000 Shi'ite Muslims who rebelled after the 1991 Gulf War.

L. Paul Bremer III, the top US administrator in Iraq, appeared to support the Iraqi approach at his weekly news conference yesterday. "It's important for us to let them decide on their procedure," he said.

Bremer added that the Iraqis could conceivably convene a tribunal to try the top members of Hussein's regime, levy criminal charges against lesser offenders, and impose economic sanctions or reprimands against others. "This is now a matter for the Governing Council," he said.

International law specialists and diplomats applauded the step, one of the first formal actions taken by the three-day-old council, but were skeptical that the Iraqi legal system, which was severely corrupted during Hussein's reign, was up to the enormously complex task of gathering evidence, interviewing witnesses, and ensuring due process.

They urged the inclusion of outside investigators, prosecutors, and jurists to ensure the trials are fair and credible, and do not substitute retribution for justice. Some suggested a role for the United Nations.

But Qanbar said the 25-member council will have "sole charge of the issue."

He said the decision to try suspected war criminals in Iraqi courts was suggested by council member Abdul Aziz al-Hakim, a leading Shi'ite cleric who heads the Supreme Council for Islamic Revolution in Iraq. The judicial panel will explore whether the trials can be conducted with the country's existing laws, or whether new legislation is needed.

"These are not normal crimes we are talking about," Qanbar said. Prosecutions will also need to differentiate between "who ordered the executions and who did them," and determine appropriate penalties for differing levels of responsibility. "This is a very complicated issue."

Specialists supported the move to hold the Hussein regime accountable for some of the worst alleged atrocities in recent decades.

"We very much welcome the fact that one of their very first acts has been to focus on justice," said Hanny Megally, Middle East and North Africa director for Human Rights Watch. "It is clearly an important step in recognizing that those responsible for serious crimes, against humanity and genocide, should be held accountable. The Iraqis must be given the chance to bring their own leadership to justice."

The US-backed 25-member council of Iraq's different ethnic, religious, and political factions has been given broad powers to appoint Cabinet ministers and approve the country's 2004 budget as a prelude to drafting a constitution and holding national elections.

Clint Williamson, a judicial adviser to the US Office of Reconstruction and Humanitarian Aid, said in May that "there is a broad consensus that crimes against the Iraqi people be handled by Iraqi justice."

But trying to dispense justice in a country that has been racked by government-ordered torture, chemical attacks on ethnic dissidents, deadly repression of Shi'ites by the Sunni Muslim elite, and the recent discoveries of mass graves will be a daunting and divisive process, legal observers said. They doubt that the Iraqis can do it alone.

Iraq's strong judicial tradition was eroded during Hussein's rule, according to specialists. Many leading jurists were members of the Ba'ath Party, and verdicts were commonly preordained. For nearly 30 years, the judiciary was undermined by a parallel system of revolutionary courts run by Ba'athists.

In addition, Iraq's justice system under Hussein placed more emphasis on extracting confessions, which weakened prosecutors' ability to develop investigative skills necessary to make trials work, according to Iraqi exiles and other legal experts.

"They are unequipped to fulfill the day-to-day functions to prosecute people for ordinary crime," said Paul Van Zyl, director of country studies at the International Center for Transitional Justice in New York. "It is unrealistic that you can prosecute crimes against humanity using the Iraqi criminal justice system."

Many observers believe the prosecutions must be pursued through a court that includes Iraqis and members of the international community. Yet such a hybrid solution also has potential pitfalls, said David Siegel, a professor at the New England School of Law's War Crimes Project.

"The downside of that is that the local population often can be resistant to outsiders," he said. "You have this very fine line between wanting to come in and establish an objective, neutral, adjudicatory body, and yet not appear to be imposing an outside standard or process on a population."

The United Nations, which has its own war crimes tribunal in The Hague currently trying former Yugoslav president Slobodan Milosevic, is eyeing a possible similar role in Iraq. It held a meeting on the topic in Baghdad on June 30.