Institute for War and Peace Reporting | Giving Voice, Driving Change
Council Ponders Tribunal Process
The Iraqi Governing Council has the onerous task of satisfying local and international expectations of its new war crimes trial process.
Human rights organisations estimate that Saddam's regime killed hundreds of thousands of people during its 24-year reign. There are now growing calls for the culprits to be tried, but in setting up a tribunal - plans to do so were announced earlier this month - the Governing Council faces a series of difficult questions.
Its members now have to decide whether to adopt an international system of dispensing justice, or to rely on the Iraqi legal system.
Locals favour the latter because they want Iraqi judges and prosecutors to try suspects, but there's some concern in the West over the country's ability to conduct war crimes trials, as the former regime compromised and corrupted the legal system.
The Governing Council is anxious to please the public, but understands that prosecutions would have to conform to international standards of fairness and transparency, and acknowledges that Iraqi law at present doesn't recognise war crimes.
Iraq is a signatory of international conventions that prohibit a range of conflict-related violations and other serious offences such as torture, rape and false imprisonment. But none of these conventions were ever adopted by the Iraqi judiciary. In addition, a number of legislative amendments put in place by the old regime are inconsistent with international legal standards.
Another problem is that Saddam, in his time, issued many amnesties for some of the more brutal members of his regime, while others often walked free after rigged trials.
If Iraqi law was applied to the proceedings, some offenders could cite the double jeopardy rule, claiming that since they had been acquitted in the past they should not stand trial again.
For all these reasons and more, many human rights organisations and legal authorities have argued that an international tribunal or a United Nations court would be the most effective and credible way of bringing members of the Saddam regime to justice.
Washington, though, has backed Iraqis' preference for their own judiciary to take the lead in trying suspected war criminals. Pierre-Richard Prosper, the State Department's ambassador-at-large for war crimes recently said that he thought locals were "up to the task". The US believes an international war crimes process would take too long, prove too costly, and would be too far removed from the victims.
Within the Governing Council, debate appears to moving towards a compromise solution which would satisfy the expectations of both sides: a hybrid of international and Iraqi legislation, applied by Iraqi courts with advice from foreign experts. This would address the relative inexperience of the country's judges in conducting impartial trials.
This sort of formula is similar to what has been proposed by the leading rights organisation Human Rights Watch. In a September paper on war crimes issues in Iraq, it proposed a joint group of Iraqi and international experts to recommend the most appropriate justice mechanisms for serious past crimes, and suggested that either a mixed Iraqi-international tribunal or an international tribunal could try such cases.
"Courts for these trials could be located in Iraq… be presided over by Iraqi and international judges, and apply the relevant provisions of Iraqi and international law," the paper said.
But there are some within the council who are holding out for an Iraqi war crimes process with no international involvement whatsoever, except perhaps some foreign advisers whose brief would be extremely limited.
They argue that unless the process is a wholly Iraqi affair, the conspiracy theorists of the Arab and Islamic world will put it about that the "occupiers" are trying leaders of a country they invaded, which could undermine the legitimacy of a war crimes tribunal in the eyes of ordinary Iraqis.
Arab radicals and Ba'ath loyalists are likely to oppose any war crime process, and try to undermine it by threatening witnesses and court officials - all the more so if they sense that "victor's justice" is being dispensed.
Council members unhappy about a tribunal with an international dimension also cite the American contention that it would take longer to process cases and prove more costly than an Iraqi court.
They also point out that allowing Western countries, in particular the Europeans, to have some involvement in drafting war crimes legislation could result in the abolition of the death penalty, which many Iraqis would oppose since they would like to see the worst offenders from Saddam's regime executed.
So while the Governing Council appears to be moving towards a compromise between the international and local expectations of a war crime court, it may have to work quite hard to persuade some of its own members, and indeed many ordinary Iraqis, of the merits of the formula.
Hiwa Osman is an IWPR editor/trainer in Baghdad.
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