Justice and the Day After - the Trials

With the Iraqi regime disappearing into thin air, but none of its leaders indicted, there is an urgent need to address the problem of what to do with those responsible for serious violations of humanitarian law when they are finally arrested. In the United States, the power behind the war and - inevitably - the post-war, opinion is divided, with some appearing to favour an international tribunal and others a military court on US soil.

The oldest model of an international court for a special ad hoc tribunal for Iraq would be that of the Nuremberg and Tokyo trials, modified by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Balkans. An ICTI seemed a few weeks ago to be favoured by Ari Fleischer, the White House's spokesman. While Nuremberg and Tokyo were created by the Allies, the ICTY and its Rwandan counterpart, the ICTR, were established by the Security Council. This was a blessed but fugitive moment of unity in the United Nations that has never been seen again.

While miracles cannot be discounted - the United States seeing an ICTI as a way forward to legitimacy at UN level - the likelihood of the Security Council acting is slim these days. The other possibility is to reinforce the current International Criminal Court, but this requires a leap of faith in Washington, which has so far rejected the new global tribunal.

Because the Security Council route is unlikely at present, justice for the people of Iraq may well fall back to national, or mixed, tribunals, established by those who might get hold of persons accused of massive crimes.

National tribunals are of two sorts: those in a relatively neutral forum, as in Belgium, and those where the prosecution appears to be on the same side as the victorious party - whether that victorious party is national, in this case the "Iraqi opposition", whatever this might mean, or international, in this case the United States and United Kingdom.

In all cases, another difficult question arises about the number of Iraqi leaders, Ba'ath party or government officials who might be tried. The number matters, and is an unsolved problem. The ICTY has tended to concentrate on the top leaders, leaving "small" and "medium" fish free from prosecution. Two tribunals were set up for the Rwandan genocide: the international one, which concentrated on the prime movers of the genocide, has been notoriously inefficient; the national one, which had a broader range, has a backlog of several thousand cases.

It is difficult to see how justice can be obtained in Baghdad. A new government might pursue criminal justice on a wide scale, or it might not rally enough legitimacy to pursue justice in any convincing manner. Despite the better efforts of a group within the Iraqi opposition to address this problem in a long paper on "transition", its report has a blind point - the tragic record of the Kurdish leadership during internecine fighting that took some 5,400 lives in northern Iraq in 1994-1996 - sometimes in atrocious circumstances. None of those who committed these atrocities has been brought to justice. Justice for all, and not just for victims of Saddam's regime, is imperative if Iraq is to begin closing the most recent chapter of its tragic history.

Even more problematic would be finding Iraqi judges who would be up to the task in a country where the rule of law has been undermined for half a century.

The US could institute a Guantanamo Bay-like process, or even military courts on US soil or possibly in Iraq, and recent reports have suggested this is now the preferred way forward of the US State Department. As in Guantanamo Bay, many questions would be raised. But a British court has already underlined Guantanamo Bay's violations of international humanitarian law and one hopes that a British presence would deter the United States from a course that is universally perceived as failed justice.

It is possible to conceive of a mixed international tribunal drawn from the countries belonging to "the coalition of the willing". This would lessen, but not entirely do away with, the negative image of victors' justice.

My own preference would be for the United States to reconsider seriously the value of the International Criminal Court. Despite the administration's reservations, this is the best way to vindicate its war in Iraq in the context of "liberating Iraqis from dictatorship". It would open the files of one of the most brutal regimes of the 20th century to the widest audience possible, as presently embodied in the ICC.

If an ICC route is not possible, then a special ad hoc tribunal could be set up on the Yugoslav model for Iraq (or even better, for the Middle East as a whole), if the UN can be so persuaded. Alternatively, the Belgian route, to which should be added other jurisdictions capable of trying those responsible for atrocities, could proceed.

With the case against Saddam Hussein and his aides getting tried in parallel with the case already underway in Belgium, where Israeli Prime Minister Ariel Sharon is accused of war crimes in Beirut's Palestinian camps in 1982, the acute double standards which have plagued the Middle East for a century might start being challenged to see not only that justice is done - but is seen to be done.

Chibli Mallat, EU Jean Monnet chair in European law at Saint Joseph's University in Lebanon, founded Indict in 1996 and brought the case against Ariel Sharon in Belgium in June 2001. (See www.mallat.com) This article is the second in a two-part series.