Models for Justice in Iraq

by Rachel S. Taylor, World Press Review Special Projects Editor, May 8, 2003

On the evening of May 1, U.S. President George W. Bush stood on the deck of the aircraft carrier U.S.S. Abraham Lincoln and told the world: "Major combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country." He continued: "We are pursuing and finding leaders of the old regime, who will be held to account for their crimes."

Today, 18 of Iraq's 55 most wanted-whose faces adorn the now-ubiquitous deck of playing cards-have been taken into U.S. custody, accused of committing crimes against humanity, genocide, and war crimes. Another 2,000 lesser-known Iraqis are being held for crimes committed during the course of the war itself.

Weeks before Bush's speech, on April 10, while fighting was still raging throughout Iraq, Pierre-Richard Prosper, U.S. ambassador-at-large for war crimes issues, appeared before the Senate Committee on Governmental Affairs to put forth his vision for future prosecutions of these detainees. He outlined three categories of alleged Iraqi criminals, proffering that the responsibility to bring individuals from each group to trial would fall on different actors.

Many have criticized Prosper's vision-by arguing that international trials are better than domestic ones, for example, or that U.S. officials should be tried for their own conduct in Iraq. But whatever the debate, one thing remains clear: The models for bringing those accused of crimes to justice are many.

CRIMES COMMITTED AGAINST U.S. NATIONALS
Prosper stated that the United States would try those persons who committed war crimes against its citizens. "For crimes against U.S. personnel, we, the United States, will prosecute," he said. Toward this end, he noted that American troops within Iraq "have been given the additional mission of securing and preserving evidence of war crimes and atrocities they uncover."

The crimes Prosper was referring to are based in international humanitarian law, otherwise known as the laws of war. W. Hays Parks, special assistant to the judge advocate general, has elaborated on some of the crimes that might fall into this category. They include "perfidy," prohibited by Article 37 of Additional Protocol I to the Geneva Conventions. Broadly defined as taking advantage of the enemy's reliance on the laws of war for one's own benefit, perfidy is considered a serious crime because it prevents the enemy from being able to distinguish between civilians, who are not legitimate military targets, and soldiers, who are. During Operation Iraqi Freedom, for example, some Iraqi soldiers allegedly wore civilian clothing while in combat and abused white flags of surrender-pretending to capitulate, only to attack coalition forces.

Other examples of war crimes are laid out in Article 13 of the Third Geneva Convention, which requires the humane treatment and protection of prisoners of war (POWs). In violation of this article, Iraqi forces allegedly executed American POWs, broadcast footage of the dead soldiers on state-run television, and made footage of the prisoners' interrogations public. These actions contradict Article 13's requirement that POWs "be protected, particularly against acts of violence or intimidation and against insults and public curiosity."

Parks, of the judge advocate general's office, indicated that those who committed such crimes would be brought before military courts, civilian courts, or military commissions. On this subject, international humanitarian law mandates what body may try a war criminal, depending on whether the accused is considered a POW. The definition of a POW is put forth in Article 4 of the Third Geneva Convention. Under Article 5 of the Third Geneva Convention, if a dispute arises about whether a person qualifies as a prisoner or war, he is considered one until a competent tribunal determines his status.

a) MILITARY COURTS AND CIVILIAN COURTS
Chapter III of the Third Geneva Convention lays out how penal and disciplinary sanctions against prisoners of war may be pursued. Specifically, Article 84 of the Third Geneva Convention requires that POWs be tried by a military court unless the laws of the detaining power would allow a member of its own armed forces, accused of the same crime, to be tried by a civil court. The principle is based on reciprocity-namely, a country must try its POWs according to the same procedures by which it would try one of its own soldiers. A U.S. law (18 U.S.C. Sec. 2441) allows for prosecutions in U.S. courts for violations of the laws of war "if the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States." Iraqi POWs could thus be tried in either military courts or U.S. civilian courts for violations of the laws of war. Under Article 102 of the Third Geneva Convention, an Iraqi POW tried before a U.S. civilian court would have the same rights as a U.S. citizen, including the right to counsel, to an interpreter, to be notified of the charges against him, and to appeal his verdict.

b) MILITARY COMMISSIONS
If a captured person is not considered a POW, the United States could try him before a military commission (an administrative body rather than a court) under Article 75 of the First Additional Protocol to the Geneva Conventions. (Although the United States has not signed this protocol, it is widely considered to be legally binding as customary international law.) While military commissions are not required to provide as many protections as military courts or civilian courts, the accused would still have the right to be informed of the charges against him, to be presumed innocent until proven guilty, to be allowed to examine witnesses against him, and to refuse to testify against himself.

CRIMES AGAINST NATIONALS OF OTHER COUNTRIES
Ambassador Prosper differentiated between crimes committed against Americans and those committed against nationals of other countries. "For the regime's crimes committed against other countries' nationals, both in the present and in the past, the governments of those nationals may also have a sovereign interest in seeking justice," he said. This would, of course, include crimes committed against non-U.S. coalition forces that participated in Operation Iraqi Freedom. Moreover, Parks has suggested that the government of Kuwait might want to prosecute Iraqis for crimes committed during Iraq's 1990 invasion of Kuwait. Iran could arguably do so as well, for Iraqi crimes committed during the 1980-88 Iran/Iraq war.

Several war crimes have been documented from Iraq's wars with Iran and Kuwait. During the September 1980 invasion of Iran, for example, Iraqi troops used poison gas, indiscriminately attacked civilians, and violated international law on the treatment of prisoners of war, according to the British human-rights nongovernmental organization INDICT. (Iraq is a party to the 1925 Geneva Protocol that outlaws asphyxiating, poisonous, and other gases.) In addition, Iraq's 1990 invasion of Kuwait violated Article 2(4) of the United Nations Charter, and there is evidence that during the hostilities of 1990-91, Iraqi forces tortured, abducted, and executed Kuwaiti nationals, mistreated POWs, and engaged in widespread looting. These, too, constitute war crimes.

CRIMES AGAINST THE IRAQI PEOPLE
Finally, Prosper discussed the punishment of the myriad crimes Saddam Hussein's regime committed against its own people. "For the regime's crimes against Iraqi citizens, we believe that those responsible should be held accountable before an Iraqi-led process, possibly ranging from tribunals to truth and reconciliation commissions," he said. "The international community has an obligation to help the Iraqi people move toward democracy, the rule of law, and legitimate judicial institutions. The United States intends to help to ensure that a strong and credible process is created."

The crimes Saddam Hussein and his regime committed against the Iraqi people have been well documented. During the administration of U.S. President Bill Clinton, then-Ambassador for War Crimes Issues David Scheffer compiled millions of pages of evidence implicating Saddam Hussein and his top associates in various crimes. A group of Kurds seized 18 tons of documents from police stations detailing the campaign of genocide against Kurdish Iraqis during the uprising of 1991; these documents are now in the United States. The U.N. special rapporteur on the situation of human rights in Iraq also has extensively documented grave violations of human rights by the Iraqi government. INDICT has collected evidence against 12 of the regime's top officials, has prepared legal briefs to assist prosecutions, and has collected evidence about several major crimes committed by the regime as a whole. Human Rights Watch has done so as well.

As a general matter, the crimes committed by the Iraqi regime against Iraqis allegedly include genocide, crimes against humanity, and war crimes.

According to Human Rights Watch, since the late 1970s, the Saddam Hussein regime has abducted up to 290,000 persons, many of whom are now believed dead. From 1977 to 1987, the group says, thousands of Kurdish villages were destroyed and their occupants forced to relocate. During the Anfal offensives of 1988, more than 100,000 Kurds, mostly males, were taken away and executed. Saddam Hussein's regime also allegedly used chemical weapons against Kurdish civilians; this led to 3,200 documented deaths in Halabja alone (the actual number is believed to be considerably higher). In addition, since 1991, the Iraqi government is alleged to have forcibly expelled over 120,000 Iraqis from the oil-rich region surrounding Kirkuk. Thousands of Shiite Muslims in southern Iraq were abducted, with many suffering torture while others were executed. According to Human Rights Watch, the Iraqi government expelled half a million Shiites from the country, sending them to Iran; in the process, they arrested 50,000-70,000 men and boys, most of whom have never returned. After an uprising in March 1991, the regime allegedly put down anti-government demonstrations by attacking civilians, forcibly displacing them, and holding summary executions. Throughout Saddam Hussein's reign, the general population was subject to political imprisonment, torture, disappearances, and summary executions as well.

Many people have argued that Iraqi-led and U.S.-supported courts will be perceived as biased in favor of the United States, a form of "victor's justice." After three decades of Baath Party rule, opponents of such courts point out, there is no independent Iraqi judiciary with the authority, independence, or professional ability to conduct trials meeting international due process standards. Indeed, judges and prosecutors would be drawn either from the Iraqi opposition, widely seen as lacking legitimacy, from the existing Iraqi judicial system, whose independence was severely damaged during Saddam Hussein's rule, or from the exile community, which is perceived as biased. Iraqi judges are currently paid US$125 per month, and bribery thus remains quite common.
Ambassador Prosper, in his testimony, did not seem alarmed by these concerns. He reminded the committee of his statement to the Senate Committee on the Judiciary in December 2001, in which he stated his preference for trials by national courts rather than international tribunals. "The international practice should be to support sovereign states seeking justice domestically when it is feasible and would be credible, as we are trying to do in Sierra Leone and Cambodia. International tribunals are not and should not be the courts of first redress, but of last resort. When domestic justice is not possible for egregious war crimes due to a failed state or a dysfunctional judicial system, the international community may through the Security Council or by consent, step in on an ad-hoc basis as in Rwanda and Yugoslavia," he said.

In his April 2003 testimony, Prosper noted that he viewed assistance to national courts as a better means of developing such bodies, stating that Iraq should be permitted to try its own leaders and that it was capable of doing so. He said: "It is our policy to encourage and help states to pursue credible justice rather than abdicating their responsibility of having it taken away….I am aware that there are those who say the Iraqis are not up to the challenge. I have personally met with groups of Iraqi lawyers. I am convinced that there are qualified Iraqi jurists both within and outside of Iraq who are ready and willing to accept the mandate of justice. They have a thirst for this pursuit that should not be denied….Iraqis should lead the efforts to judge those who have committed the greatest crimes against their people."

The issues with which Prosper was grappling are not, of course, unique to Iraq. Indeed, societies transitioning from periods of repression to periods governed by the rule of law have employed a variety of methods-from international tribunals, to mixed international-domestic tribunals, to trials under the theory of universal jurisdiction, to truth commissions, and soon to the International Criminal Court-to bring perpetrators of crimes to justice. While Prosper seems to prefer some models to others, the choices are abundant.

a) INTERNATIONAL TRIBUNALS
Prosper's speech indicated that the Bush administration is opposed to the creation of a wholly international tribunal to try former Iraqi leaders. Such courts include the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda (where Prosper served as a war crimes prosecutor). Both courts were created by the United Nations Security Council under its authority stemming from Chapter VII of the U.N. Charter.

But human-rights groups-including INDICT, Human Rights Watch, and Amnesty International-have supported the creation of an international criminal tribunal for Iraq. The European Parliament has also called for the establishment of such a tribunal. In addition, H. Res. 118, co-sponsored by 57 members of the U.S. House of Representatives, calls for the creation of such a court. Many believe that only an international, U.N.-sponsored tribunal would be seen as impartial and independent-and would have the requisite legal authority to require other states to turn over suspects within their borders.

Purely international tribunals do, however, have shortcomings that might impede the process of justice and reconciliation in Iraq. Perhaps most critically, they do not necessarily impart the rule of law to the country where the crimes took place. Scholars of the International Criminal Tribunal for the Former Yugoslavia, for example, have noted that although an extensive judicial infrastructure has been established in The Hague to prosecute war crimes and crimes against humanity, the domestic courts of the former Yugoslavia have not similarly developed. Such criticisms are made about the International Criminal Tribunal for Rwanda as well.

In any case, it is unlikely that the United States, which has sidestepped the United Nations since the world body failed to vote to authorize the Iraq war, would cede control over trying the top Iraqi leaders to a purely international tribunal (which, notably, would not allow the death penalty, a punishment Prosper has indicated the United States would pursue for some of Iraq's top leaders). Because an international court would have to be created by the U.N. Security Council, it could be vetoed by the United States. As such, it appears unlikely that there will be a purely international tribunal to bring leaders of the Saddam Hussein regime to justice.

b) MIXED TRIBUNALS
Although Prosper does not seem likely to endorse an international tribunal, he has acknowledged that the United States and its allies may provide assistance to an Iraqi-led process. His statements suggest that the Bush administration might favor a mixed tribunal comprised of Iraqi and foreign judges and prosecutors, and as Prosper mentioned, models for such courts include the Special Court for Sierra Leone, which was set up by a treaty between the U.N. and Sierra Leone, and the one likely to be created in Cambodia.

Some have advocated the creation of a mixed Iraqi/Arab court, suggesting that the court's international judges come from Arab countries. This is an attractive option because the legal system in some Arab states is similar to that in Iraq, there would be no language barrier, and because having Arab jurists might ensure that the court would not be perceived as "victor's justice." Prosecutions could be under both international and Iraqi law.
A mixed tribunal could also help reform and develop the Iraqi justice system. Indeed, because of resource constraints, Iraqi domestic courts will ultimately be the ones to try a substantial number of cases against lower-level Iraqi officials. A joint domestic-international tribunal could help bring the rule of law to Iraq, thus having lasting benefits in terms of both stability and democratic development.

c) DOMESTIC TRIALS UNDER UNIVERSAL JURISDICTION LAWS
Individual states could also pursue Iraq's top leaders under the theory of universal jurisdiction. Under international law, states have the legal right-and in some cases the legal obligation-to pursue those who commit genocide, crimes against humanity, and war crimes, regardless of where these crimes took place.

INDICT has attempted to pursue this prosecution track, seeking the indictment of several former Iraqi leaders in national courts around the world. According to the group's Web site, it has "succeeded in preventing members of the Iraqi regime who have committed crimes against humanity from traveling with impunity." It notes: "In August 1998, for example, Izzat Ibrahim al-Douri, a senior member of the regime responsible for planning genocide and other crimes against humanity, fled Vienna, where he had come for medical treatment, following attempts to secure an indictment against him." In late 2002, Saddam's half-brother, Barzan al-Tikriti, was expelled from Switzerland after INDICT filed a complaint with the Swiss authorities that accused him of genocide and torture. INDICT also reports that a case it filed in 2001 against Iraqi Deputy Prime Minister Tariq Aziz prevented him from traveling to Europe.

d) TRUTH COMMISSIONS
Regardless of how top leaders of the Saddam Hussein regime are tried, a truth commission may also be created to make a record of past crimes and promote national reconciliation. This is an attractive option because it is unlikely that any court, regardless of its structure or sponsors, will have sufficient resources to try every member of the regime.

Historically, truth commissions have been developed as part of democratic transitions. They work best where there is a practical need to establish facts about crimes in the immediate past; as has been made clear by the voluminous stories of missing relatives in Iraq, Iraqis are now posing many questions that need to be answered. An Iraqi truth commission could provide the victims a space in which to tell their personal stories and could, at the end, publish a report about its findings. The Iraq Jurists Association (IJA) and other groups have accepted the notion of pardoning the crimes of lower-level Iraqi officials in exchange for testimony about their crimes before a truth commission, a similar program to the one enacted during South Africa's transition from apartheid to democracy. Groups such as the IJA, however, believe that higher-level officials should never be pardoned.

A truth commission would best operate in tandem with legal prosecutions of top-level members of the Saddam Hussein regime. The simultaneous operation of a truth commission and a court could impart respect for the rule of law while recognizing the immense suffering that has occurred and the need for Iraq to look toward its future.

e) THE INTERNATIONAL CRIMINAL COURT
The International Criminal Court (ICC) does not have jurisdiction to hear the majority of cases of crimes committed against the Iraqi people. The court's jurisdiction extends to cases involving genocide, crimes against humanity, and war crimes, but only when such crimes occur within the territory of a state that is participating in the court or by nationals of such a state. In addition, the court has jurisdiction only to hear cases involving crimes that took place after July 1, 2002, the date the court was created. Because most of the crimes committed by Saddam Hussein's regime occurred before July 1, 2002, and because neither the United States nor Iraq is a party to the Rome Statute creating the court, the ICC is not a likely option for prosecutions.

States that are not party to the Rome Statute may nonetheless make a declaration, under the statute's Article 12(3), to allow the ICC to take jurisdiction. The Security Council, under the statute's Article 13(b) may also recognize the ICC's jurisdiction over a matter. Still, the court's jurisdiction would reach back only to July 1, 2002. And it is unlikely the United States would agree to confer jurisdiction on the court, either on its own or through the Security Council, not only because the United States opposes to the ICC but because the United States would likely want all cases against Iraqi leaders-not just those occurring after July 1, 2002-to be heard.

While the United States and other countries may begin to try Iraqis for war crimes committed against non-Iraqis, it appears likely that a process will also soon get under way to try those who committed crimes against the Iraqi people. It remains to be seen, however, what course will be pursued.

If the United States could be persuaded not to use its veto, the U.N. Security Council could pass a resolution creating a Commission of Experts to explore exactly what type of tribunal should be established. This was done with the former Yugoslavia (Resolution 780) and for Rwanda (Resolution 935). The commission could assess the Iraqi criminal justice system to determine the availability of Iraqi lawyers, judges, and prosecutors to serve on a future court. It could also start to gather evidence of genocide, war crimes, and crimes against humanity to be used in later trials. If the Security Council does not pass such a resolution, the General Assembly could do so. In the case of Cambodia, the General Assembly asked the secretary-general to appoint such a Group of Experts (GA Resolution 52/135). At the same time, groups in Iraq should work to preserve evidence of these crimes. Showing Iraqis that the world community is serious about bringing criminals to justice might deter future atrocities.

The options for bringing Iraqi criminals to justice are many. Whether the ultimate decision is to create an international tribunal, a mixed tribunal, prosecutions in domestic courts under the theory of universal jurisdiction, or a truth commission, something must be done. Otherwise, justice will not be served, people may take justice into their own hands, and Iraq will continue to be a country where the rule of law has not yet taken hold.