Transitional Justice Forum

Dissecting the Iraqi Special Tribunal

Posted by Helena Cobban at 09:09 | TrackBack

On September 26, the New York Times carried two Op-ed pieces, respectively by Gary J. Bass and Eric Posner, that argued two very different "cases" about the working of the Iraqi Special Tribunal. Taken together, these articles raise some thought-provoking questions about the role of war-crimes trials in situations of post-conflict political transition.

Iraq's transitional president, Jalal Talabani, has said that the IST will start its first trial of Saddam Hussein, on the first set of charges related to the fairly well-documented 1982 killing of 143 men and boys from the village of Dujail, on October 19. Laith Kubba, a spokesman for transitional PM Ibrahim al-Jaafari, has said that once the court has reached a guilty verdict in the Dujail case, the near-certain sentence of death "should be implemented without further delay."

Bass's main argument, in his piece Try and Try Again (also here), is that the IST should not be so hasty to execute Saddam after just that first trial:

[I]f Mr. Hussein is executed for the Dujail killings, he will never be called to account for the larger atrocities on which he was arraigned in July 2004: killing political rivals, crushing the Shiite uprising in southern Iraq in 1991, invading Kuwait in 1990, and waging the genocidal Anfal campaign against the Kurds in 1988, including gassing Kurdish villagers at Halabja.

(Personally, I would add to that the extremely damaging decision Saddam made in September 1980 to launch a massive unprovoked invasion of Iran. That decision sparked a war between the two countries that left an estimated million "or so" people dead; devastated the infrastructure of both countries;, and provided the context within which the Iraqi regime used chemical weapons against the villagers of Halabja, and against Iranian soldiers and noncombatants; and committed numerous other atrocities.... But "crimes against the peace" as such are not among the elements of the crimes listed in the statute of the IST itself. The IST only gets to try Saddam for the invasion of Kuwait on the basis (IST Statute, Art. 14 (c) of an Iraqi law of 1958 that proscribed " the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country". Iran is not Arab.)

Gary Bass is of course the author of Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, the well-researched 2000 study of the history of attempts to establish post-conflict war-crimes courts from the days of Napoleon through the ICC.

He does recognize in his NYT piece that the Saddam Hussein trial has important political dimensions. Nonethless, he writes,

the Iraqi tribunal would do well not to rush Mr. Hussein to the gallows. A hasty execution would shortchange Mr. Hussein's victims and diminish the benefits of justice. Baathists would be all the more likely to complain about a show trial. Kurds would rightly feel that they were denied their day in court for the Anfal campaign. Shiites in the south would also be deprived of a reckoning.

A thorough series of war crimes trials would not only give the victims more satisfaction but also yield a documentary and testimonial record of the regime's crimes.

He then notes the importance of the documentary record compiled by the Nuremberg Tribunal in Europe, and refers indirectly to the role that record played in educating subsequent generations of Germans to the nature of the vile acts that the Nazis had committed "in their name". He also notes the contrast with Iraq's Turkey, where the failure to prosecute the organizers of the 1915 genocide of the Armenians had led to 90 years of intense Turkish denial about those events.

The other piece in yesterday's NYT, Justice Within Limits (also here) by Eric Posner, does not directly challenge Bass's argument that the trial of Saddam should not be cut short by an execution immediately after his conviction on the Dujail-related charges. But Posner, co-author of the recently published study, The Limits of International Law, focuses much more strongly on the political context within which the IST is pursuing its work; and he warns that even the trial on the Dujail charges raises some very vexing political questions:

The question is, are all the people involved in this event [at Dujail] to be treated as criminals? If so, does this include every soldier or security agent or prison guard who detained people? What about owners of the banks that financed the regime, the factories that produced its weapons? The decisions made in the trial will begin to answer these questions, and the more they suggest expansive liability, the bleaker the outlook for peace will be.

This is not to advocate a blanket amnesty. The question is where the line should be drawn. The answer depends not on law but on politics, on the importance of the members of the old government for the success of the new one. It is unfortunate that this political question must be answered in a legal forum. It is unlikely that the judges have the political acumen that would allow them to draw the line in the right place; indeed, they will most likely resent the suggestion that their decisions should reflect politics in any way...

[T]the judges should resist the Nuremberg-like impulse to advance the international rule of law by asserting expansive theories of liability like complicity and limiting defenses like "just following orders." They should convict Saddam Hussein on the narrowest grounds possible, so that his former supporters do not infer that they will be placed in legal jeopardy as well.

Yes, Saddam Hussein's victims and international lawyers would complain, but Iraq will not enjoy peace unless the Baathists are brought back within the political fold.

I admit that I am not completely neutral on these issues. Some way into conducting my most recent research project-- that looked in three different post-conflict African countries at the effectiveness of widely differing mechanisms of transitional justice in building a stable political order going forward, that is based on the rule of law-- I concluded that the pursuit of war-crimes prosecutions looked like just about the worst thing to do. And for the record, back in December 2003, when Saddam Hussein was captured alive by the US forces in Iraq, I warned in my personal blog Just World News that the questions of who would get to control the process of trying him, and how they would do it, would rapidly become extremely contentious... (See also here and here.)

And so, 21 months on, they have proved to be. Especially now at a time when the entire internal and external legitimacy of the political transition process and constitution-adoption process inside Iraq hangs centrally on whether enough Sunni Arab Iraqis can be brought into these processes, or not. (From this perspective, it seems to me quite idiotic for the present Iraqi transitional government to be "promising" that the first big political event that will happen after the scheduled October 15 referendum on the constitution will be the opening of Saddam Hussein's trial... )

Anyway, the issues that Bass and Posner raise in their articles are important ones. It is great that the NYT's op-ed editors brought them to the US reading public at this time. In particular, far too few of the members of the "liberal" wing of the US elite have any real understanding that post-conflict war-crimes courts always, inevitably, have an overwhelmingly political dimension and an overwhelmingly political function and effect. There is still far too much support for the notion that war-crimes trials, because they exist in that rarefied portion of public space called "criminal justice", are somehow insulated from the demands of politics.

As H.L.A. Hart would have said to that proposition: "Nonsense!" Except I believe he said it a lot more legeantly than that.