Transitional Justice Forum

The Saddam Hussein trial and the transition in Iraq

Posted by Helena Cobban at 16:10 | TrackBack

People researching the background of the Iraqi Special Tribunal (also now known as the Supreme Iraqi Criminal Tribunal) now have a veritable flood of online information sources to draw on.  To this flood have been added, in recent days, Human Rights Watch's October 16 briefing paper The Former Iraqi Government On Trial , and the International Center for Transitional Justice's October 17 briefing paper Creation and First Trials of the Iraqi Supreme Criminal Tribunal.  With Saddam Hussein's trial due to open tomorrow (October 19), no doubt many other NGOs have been eager to get something timely out, as well.

I'll give a quick assessment of each of the new HRW and ICTJ resources later in the present post.  But first, here is the link to the English-language section of the Tribunal's own website; and here is the Arabic-language section.  (Both seem to carry the same content, which looks fairly sparse, though this page laying out the court's procedural steps could be helpful for people unfamiliar with how things work in most civil-law systems.)

And now here is a blog newly launched by the Law School at Case Western Reserve University, called Grotian Moment: The Saddam Hussein Trial Blog.  It is well put together, with two information-packed sidebars and a stellar collection of legal experts listed on its "Expert Panel" (presumably, its authors.)  One nice feature they have is that they've commissioned various legal experts to "argue both sides of the case" regarding various propositions about the IST such as "Does Saddam have the right to self-representation?"; and then they've presented the pro and con arguments made there as blog posts.

Notably, though, for the proposition "Is the IST... a legitimate judicial institution?" two of GM's listed experts produce arguments that are both for the "Yes" case... H'mmm.  But still, definitely a blog worth watching.

One of the resources GM offers (left sidebar; bottom) is a PDF version of a significant new paper by the distinguished Egyptian-American lawyer Cherif Bassiouni.  It's titled Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal.  In it (PDF pp. 9-11) Bassiouni defines the post-conflict justice goals in Iraq in the following terms:

Experiences in various parts of the world since World War II confirm that post-conflict justice in Iraq should not be ignored, and that its goals should include the following:

1. Enhancing social reconciliation and avoiding individual acts of vengeance;

2. Restoring an independent judiciary to Iraq and strengthening the sustainability of a modern legal system in Iraq;

3. Sustaining the democratic future, territorial integrity, and stability of Iraq, and supporting the establishment of a new democratic government based on the principles of the rule of law;

4. Creating a precedent in the Arab world for holding officials responsible for systematic repression and abuse and contributing to the worldwide experience of enforcing international criminal justice through domestic legal processes, to which international prosecutions are complementary;

5. Prosecuting Saddam Hussein and the senior leaders of the Ba’ath regime before a specialized tribunal for violations of international humanitarian law, gross violations of international human rights law (including for crimes committed in the Iraq–Iran War of 1980 to 1988, in the Iraq–Kuwait War of 1990 to 1991, during the occupation of Kuwait, in the regime’s internal conflict waged against the Kurdish independence movement, and during the suppression of the Shi’ā), and for crimes committed by the regime against the Iraqi people in violation of international law and domestic criminal law. Retributive justice in these cases is necessary to reinforce future deterrence and prevention. To accomplish other goals, these prosecutions must have legitimacy and credibility in the eyes of Iraqis and Arabs, and they must be conducted fairly and effectively.

6. Prosecuting less prominent perpetrators of war crimes and torture before one or more chambers of Iraq’s criminal courts to avoid impunity for certain perpetrators;

7. Providing victims of these regime crimes with reparation and other redress remedies... Victim compensation should also provide popular support for prosecutions and become the basis for an oral history recordation and a historic commission described below.

8. Establishing an objective historical record of past political violence in order to educate future generations about such crimes and, generally, to inform such future generations of the perils of undemocratic governance that commit gross violations of fundamental human rights. The sequel to such a historical recordation should be the development of public educational programs at all levels to strengthen the capacity of civil society.

Four post-conflict justice mechanisms should be used to achieve these goals: prosecution of Saddam Hussein and senior leaders of his regime before a specialized tribunal, prosecution of lesser offenders before one or more specialized chambers of the Iraqi criminal courts, a victim compensation scheme, and a historic commission. These mechanisms must be made part of an Iraqi process that enjoys national and international legitimacy and that would also have broad Iraqi popular support.

This is an interesting and significant list, though it does seem to contain a n uneasy mixture of broad political goals and very specifically described procedural remedies. Still, it's always good when legal experts try to define the broader social goals to which whichever judicial process it is they're talking about should seek to aspire.  See, for example, this very well conceived  list that Harvard Law prof Martha Minow produced, of the goals that any nation or society needs to address "after mass violence".  (I don't totally agree with all the items on her list.  But it's a very thoughtful and thought-provoking one.  One of its strongest features is that, in her goal 8, she indirectly admits the possibility that-- as indeed nearly always is is the case-- there are trade-offs between the equal attainment of all of the other goals she lists,; so those goals need to be priorities and, in general, the trade-offs among them  identified and acknowledged.) 

...Anyway, back to the latest HRW and ICTJ reports on the Iraqi Special Tribunal, to give each of them a quick assessment.

HRW got their report out a bit earlier; and being an older and very media-savvy organization they have thus far gotten much more attention for their efforts than has the ICTJ.  The HRW report focuses heavily on due-process issues within the court's own context. As stated in its summary , this report,

identifies deficiencies in the SICT [i.e., the IST] which, if not addressed, could jeopardize fair trial rights and undercut the legitimacy of the proceedings. Areas of particular concern identified here include:

• An inappropriate standard of proof and inadequate protections against self-incrimination;
• Inadequate procedural and substantive steps to ensure an adequate defense;
• Concerns that the SICT may not appear to be impartial and independent.

A further aspect in which Human Rights Watch finds the SICT deficient and is of grave concern is the widespread application of the death penalty without any possibility of clemency, and the requirement to execute a convicted person within 30 days of a final decision.

I was interested in the formulation of the third of those points of "concern".  HRW is concerned that the SICT/IST "may not appear to be impartial and independent"...  But how about whether-- in their best judgment (which they are usually not hesitant to express)-- it actually is impartial and independent, or not?   Further down in the body of the report, they adduce considerable evidence pointing to the IST's lack of independence from political control, grouped under the headings:

• Prejudicial comments by senior public officials and political figures
• Politicization of control of the SICT and susceptibility of judges to dismissal
• The Role of U.S. Advisors

With respect to the third of those three categories, the HRW report comments, "The appearance that the SICT is heavily dependent on the assistance and financial support of the U.S. undermines its perceived impartiality.  It may also make it easier for those who deny the extent of human rights violations under the former regime to dismiss the SICT as an exercise of'“victors’ justice.'”  That whole portion of the report dealing with the court's perceived (and indeed, actual) lack of independence is prefaced by this short explanation:

The independence of a tribunal is essential to a fair trial.  Decision-makers must be free to decide cases before them impartially, on the basis of the facts and in accordance with the law, without interference or pressure from any branch of government or other actors.  The appearance of impartiality is as important as actual impartiality where a trial concerns highly politicized issues.  Human Rights Watch is concerned that the SICT’s perceived and actual independence are not adequately safeguarded.

By the way, from this US Justice Department webpage you can learn that:

The Justice Department also organized and supports the Regime Crimes Liaison Office (RCLO), an independent office of the U.S. Embassy in Baghdad. In May 2004, the President established the RCLO as the lead U.S. government agency for support to the Iraqi Special Tribunal (IST)...

-The Attorney General appointed Gregg Nivala as the Regime Crimes Liaison in March 2005...

-The RCLO consists of approximately 68 personnel, including 53 in Baghdad ... 10 in Washington, D.C.; and five in Doha, Qatar...

-At any given time, the RCLO may also employ as many as 100 contractors in the field. These include anthropologists, archaeologists, pathologists, and other forensic scientists working on the exhumations of mass graves and the preservation of evidence, as well as investigative consultants and international humanitarian law experts.

No small presence, then...

For his part Cherif Bassiouni concluded the paper cited above by writing (PDF p.63) about the US government's ever-present hand in the organization and running of the IST/SICT by writing:

How the nation faces its violent past is, to many, central to the determination of its future and to its domestic and international legitimacy. However, ... popular wisdom [in the Arab world] seems to rebel against a new ex post facto practice, probably because it is viewed as an American idea. More significantly, however, vox populi is that the United States, viewed as the promoter of such trials, is delegitimized because of its own “crimes” in Iraq and in the region exceed those committed by Saddam and his regime. Nowhere in the world is this so strongly felt as it is in the Arab world, and probably nowhere in the world is it as strongly felt as in Iraq.

So... moving right along to the latest ICTJ report .  The purview of this report lies somewhere between HRW's tight focus on procedural issues and Bassiouni's broader look at the political context within which the IST will start its work.

The author(s) of the ICTJ report  quote quite uncritically some conclusions reached by Steven R. Ratner and Jason S. Abrams in a 2001 work, in the following terms:

One study that examined four domestic prosecutions of international crimes concluded that fair and effective trials rested on four fundamental conditions:

1. A workable legal framework;

2. A trained cadre of judges, prosecutors, defenders, and investigators;

3. An adequate infrastructure (including courtroom and detention facilities); and

4. Most important, a culture of respect for the fairness and impartiality of the process and
the rights of the accused.

As the Dujail trial opens [the ICTJ authors continue] each of these conditions will be tested...

TheICTJ authors then list their own additional areas of concern, as follows:

1. Legitimacy. The Tribunal’s legitimacy will depend heavily on perceptions of its independence. It will also depend on the quality and impartiality of proceedings. In essence, the SICT will have to satisfy three different constituencies...  (These are then defined thus: "The first and most important is the Iraqi population... The second is the general public of the wider Middle East... The third is the international community itself... "]

2. Fairness. The CIST [SICT; I guess they got tired or confused along the way here? ~HC]  faces a myriad of questions and concerns about its statute and rules of evidence and procedures. Some arise as a result of lack of clarity or even conflicts in translation, but many relate to real concerns about the ability of the tribunal to apply fair trial standards. The CIST should begin trials by showing that it will strictly and meticulously adhere to international fair trial standards – particularly the rights of the defense...

3. Security and timing. The Tribunal’s development has been strongly affected by Iraq’s deteriorating security situation. Judges and SICT staff fear for their safety; the identity of almost all court officials has remained hidden... Many Iraqis are pressing for the trials to be held swiftly and feelings are running high. Some political figures believe a quick move to trial and punishment will publicly signal the end of the Ba‘athist regime, deterring any insurgent forces who wish for a return to the previous order. It is also possible that poorly handled trial may inflame the situation, raising accusations of bias and diminishing the development of Iraqi trust in post-Ba‘athist institutions. If the security situation deteriorates further, there may be a point of diminishing returns at which the SICT simply cannot conduct high-quality investigative work or a meaningful trial process at its current location or with current operating procedures...

4. Transparency and Outreach. ... No matter how impartial the proceedings, the Tribunal must develop an effective media and outreach strategy. It cannot rely on its actions being explained by osmosis, particularly because, for security reasons, ordinary Iraqis cannot physically access the place of trial and do not know the identity of the judges...

5. The Death Penalty. While Iraqis, when surveyed, have expressed support for the application of the death penalty as the most appropriate form of punishment for those responsible for the most serious abuses, the ICTJ believes that breaking from that tradition is in an important symbolic way for Iraqis to create a more just and fair society in the future. The CIST, as well as the leaders of the new state of Iraq, should seek to lead by example and avoid using capital punishment.

These concerns, and the ones listed by Human Rights Watch, are all serious and valid ones.  And yet, there is a huge degree to which, it seems to me, all these earnest commentaries urging the staging of a perfectly organized, perfectly fair, perfectly "legitimate" trial proceeding in a country in which basic issues of political organization remain fundamentally unresolved-- and which, indeed, is still the locus of considerable and very lethal political/civil strife-- are almost completely missing the mark.  Or rather, only the ICTJ came close to looking at the serious question of the political context within which the Saddam trial will be held-- and then, only by slipping its mention of that issue into their text under the slightly misleading rubric of "Security and timing."

But more broadly, how can we even start to talk about the "legitimacy" of the IST, when the legitimacy of both of its political sponsoring bodies-- the US military occupation, and the Iraqi transitional government that was established under rules prescribed by the US occupation forces-- remains highly contested within and beyond Iraq?  (Indeed, within the terms of the same body of international humanitarian law from which the IST seeks to draw its legitimacy, all the changes that the  US as occupying power has introduced into Iraq's form of governance, including its creation of entirely new judicial bodies like the IST, are themselves quite illegal... )

Above and beyond questions about the IST's "legality"-- as well as its"legitimacy", more broadly defined-- are many separate questions about what it is politically, and especially in terms of the sociopolitical reconstruction of the country, that one would hope that a successful transitional justice project inside Iraq would achieve.  That is, in terms of concrete goals like those enumerated by on Martha Minow's very useful list, mentioned above...  However, as of now, it seems far too early to start talking about sociopolitical reconstruction in Iraq, since the country clearly has not yet finished falling apart.  

What contribution will the trying of Saddam Hussein make to accelerating (or slowing?) Iraq's falling apart?  I guess we will see soon enough...

(In an upcoming post I plan to re-examine the political context within which the Nuremberg Tribunal did its work.  This is very relevant to the present situation inside Iraq; but most recent and present commentary on Nuremberg has focused almost solely on its procedural aspects, rather than on the broader politics of the US/Allied occupation forces of which it was a constituent part....)