June 16
IRAQ:
The trials of global justice
>From Rwanda to Iraq, Serbia to Sierra Leone, the search for "transitional
justice" in post-conflict states involves difficult choices. Anthony
Dworkin of the Crimes of War Project maps the current stage of a long-term
process.
"No reason to waste time," said the spokesman for Iraqs new prime
minister, announcing that the first trial of Saddam Hussein would begin
within 2 months. "The position of the government is to speed up the
trial," he added pointedly.
The comments may have served to reassure some Iraqis that their
government, struggling to contain a surge of violence, was at least able
to offer the satisfaction of a public accounting for their former leader's
worst acts of brutality. But they were evidently not welcome to the
supposedly independent investigative judges of the Iraqi Special Tribunal,
the body that will hear the cases against Saddam and his co-defendants.
They rushed out a press release to affirm that there was "no exact
schedule" for Saddam's trial and that the final decision was up to the
judges alone.
This skirmish over the political independence of the court is only one of
the reasons why the Iraqi war-crimes tribunal has been greeted with some
scepticism by many of those generally sympathetic to the cause of
"transitional justice" - the idea that legal accountability for atrocities
committed by an outgoing regime can help to heal divided societies.
Human-rights groups have complained about the tribunals failure to require
proof of guilt beyond a reasonable doubt, and about the fact that Saddam
and other defendants were not given a lawyer before their initial
arraignment. Most significantly, many outsiders are horrified that the
tribunal has the power to impose the death penalty - a fact that has
prevented all European countries as well as the United Nations from
cooperating with any investigation or prosecution.
How worried should we be by these deficiencies? Clearly the Iraqi Special
Tribunal is not a model of the highest standards of international due
process. Yet it should be evident by now, twelve years after the idea of
international justice was revived from decades of neglect to be applied to
the abundant crimes of the Balkan wars, that there are rarely simple
answers in the aftermath of mass atrocity.
The notion that rendering justice for such offences is a legitimate
international concern is here to stay - indeed it is institutionalised in
the International Criminal Court (ICC), now up and running in The Hague.
But the way that justice is applied remains a matter of frequent
compromise and ambiguity.
"Special tribunals": lessons from ex-Yugoslavia, Rwanda and Sierra Leone
A recurrent tension is that between international standards of justice and
local credibility or "ownership" of the proceedings. The first 2 in the
modern wave of war-crimes tribunals - set up to prosecute crimes in the
former Yugoslavia and Rwanda - were based outside the countries concerned
and staffed entirely by international (i.e. non-Yugoslav or Rwandan)
officials. There were good reasons why this should have been so - the
Bosnian war was still continuing, and the Rwandan justice system had been
laid waste by the country's genocide.
However it's now widely accepted that in each case there was a cost.
Whatever the tribunals' achievements in providing justice to victims and
removing the worst offenders from public life, they appear to have had a
limited impact on Serbian and Rwandan opinion. In Rwanda there have been
regular complaints that the most culpable figures tried by the
international tribunal in Arusha, Tanzania can only be sentenced to life
imprisonment, while lower-level killers left to Rwandan courts face death.
In Serbia, it seems that the recent television airing of a videotape
showing the execution by Serbian paramilitaries of Bosnian Muslim
prisoners from Srebrenica may have done more to force acknowledgement of
the crimes committed in Bosnia than several years of testimony in The
Hague.
The lessons of the Rwandan tribunal in particular were by all accounts
instrumental in determining the shape of the war-crimes court set up in
Sierra Leone in 2002 - a so-called "hybrid" body with Sierra Leonean and
international judges sitting together in the country's capital city,
Freetown. The Sierra Leone Special Court represents an attractive model
for transitional justice but with the advantage of comparatively
propitious circumstances: a war that had ended, a government that
supported the idea of accountability, and a judicial system that - though
weak - was able to provide some officials to participate in the court's
operations.
Nevertheless the Special Court has suffered some setbacks - notably in its
inability to gain access to the former Liberian president, Charles Taylor,
who was given asylum in Nigeria when he left power in 2003. Taylor was
offered refuge with the tacit consent of Britain and the United States in
a deal to prevent a bloody battle in the Liberian capital Monrovia between
his supporters and attacking rebels - a reminder that balancing the
objectives of peace and justice is not always as straightforward as some
rights advocates make out.
The ICC: Congo and Darfur
Meanwhile, the landscape of international justice has been transformed by
the ICC, established in July 2002. This permanent court represents a move
away from the ad hoc nature of earlier tribunals created to respond to
individual conflicts: international criminal justice is now an established
part of our global order.
The ICC is built around a vision of international justice as a last
resort. The court is "complementary" to national judicial systems: it
steps in when domestic courts are unable or unwilling to deliver genuine
justice. The first 2 situations it has begun to investigate are the
Democratic Republic of Congo and northern Uganda, operating in both cases
with the endorsement of the respective countrys government. These
investigations are likely in different ways to test the question of how
far the ICCs prosecutor should take political considerations into account.
In Congo, leaders of some groups that undoubtedly committed atrocities
during the countrys cataclysmic war of 1998-2003 are now partners in a
fragile coalition government. In Uganda, a group of non-governmental
organisations have lobbied the court not to take steps that would derail a
possible peace agreement with the Lords Resistance Army.
In a joint statement with some of these groups, the court's chief
prosecutor Luis Moreno Ocampo agreed recently to try to "integrate the
dialogue for peace, the ICC and the processes of traditional justice and
reconciliation." The court's statute gives the prosecutor discretion to
judge when a local wish not to prosecute is based on genuine
considerations of national interest (as opposed to partiality or weakness)
but there is already some muttering among international justice advocates
that Ocampo is tacking too far in a political direction.
Most recently, the ICC has taken on what may be its biggest challenge and
most high-profile investigation, into possible crimes in the Sudanese
region of Darfur. Darfur was referred to the court by the United Nations
Security Council over the protests of the Sudanese government, which is
not likely to cooperate with the investigation.
The Security Council has set in motion a judicial process without taking
any significant steps to halt the conflict, and it remains unclear whether
it will do anything to compel Sudan to allow investigators access to
gather evidence and speak to potential witnesses. Persuading the Sudanese
government to hand over potential defendants will be a bigger challenge
still. However, the example of the Yugoslav tribunal - which after twelve
years of operation is at last gaining custody of prominent suspects with
the help of the Serbian government - shows that international justice can
be a very long game.
Saddams trial, Iraqs options
What then of Saddam Hussein and the other Iraqi "regime criminals"?
Initially it was hoped by some coalition officials that the Iraqi tribunal
would emerge as a hybrid body with international judges and advisors
involved alongside an Iraqi majority. However it has instead taken shape
as a purely Iraqi body, albeit with substantial American advice and
support.
This development apparently reflects the desire of the Iraqis involved to
assert their own authority and competence (indeed there have been recent
suggestions that the countrys government may introduce legislation to
re-establish the legal basis of the tribunal, removing the taint of
occupation that attached to its original statute). Similarly, trials will
be conducted according to some Iraqi - rather than international - rules
of procedure and with the death penalty available in keeping with Iraqi
traditions.
Nevertheless it seems too early to condemn the proceedings. The trend in
international justice has been to favour local solutions wherever
possible, and if the trials turn out to be well-run and fundamentally
impartial they could help establish the principle of the rule of law in
Iraq. Conversely, anything that smacked of a show trial would probably
reinforce the sense of exclusion among Iraqi Sunni Muslims.
The release of video footage showing Saddam being questioned about a
series of executions in 1982 - the incident that will provide the
tribunal's 1st case - suggests that his first appearance as a defendant
may indeed be imminent. Supporters of transitional justice should
recognise the advantages of a tribunal that has credibility with Iraq's
population while looking to see that a reasonable threshold of due process
is met.
Further Links:
International Criminal Court
http://www.icc-cpi.int/php/show.php?id=home&l=EN
Crimes of War Project ---- http://www.crimesofwar.org/
Iraq Special Tribunal ---- http://www.iraq-ist.org
International Center for Transitional Justice http://www.ictj.org/
(source: Open Democracy)
