Transitional Justice Forum

There's an elephant in this court room. It is the lying basis on which what you call the "ouster" of the legitimate govenment of Iraq was procured. This lie is still potent and its repudiation is therefore of far more consequesnce than the repudiation of a past and spent criminality.

Further, the repudiation of the lying occupation of the country leads straight back to the secular rights which the Ba'ath stood for in theory if not in practice, as against the confessional brandings which the corporatist occupation is trying to promote.

A truth commission under this occupation is impossible. All the trials are tainted beyond redemption.

Dominic is right to note that there's a large elephant in the SICT/IST court room-- or rather, a pachyderm that dominates its proceedings from behind the veil of the declared "Iraqification" of the proceedings... I would, however, characterize that beast not as the manner in which Saddam was ousted, per se, but the murky and continuing role of the occupation authorities in (more or less) controlling the whole venture from behind the scenes.

I wrote a little in this recent TJF post about the role the US "Embassy's" large and well-resourced Regime Crimes Liaison Office was playing in "supporting" the work of the SICT/IST. (Actually, that post contains a lot of useful background info that I'd gathered on the IST, and could be a useful resource for lots of people.)

In that post I also cited-- and gave a link to-- an important commentary by the Egyptian-American expert in international criminal law Cherif Bassiouni, in which he wrote:

vox populi is that the United States, viewed as the promoter of such trials [as the IST], 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.

I personally would caveat that observation by saying that it is among the (minority) Sunni Arab population in Iraq that the legitimacy of the IST is most strikingly contested, while among Iraqi Kurds and Shiites, inasmuch as the work of the IST is criticized, it is criticized for excessive restraint and slowness rather than for existing at all.

This merely underlines how strongly divisive and polarizing the work of the IST is within Iraq's still deeply conflicted political system... (I have sometimes thought that maybe the reason Saddam surrendered his person to the US forces without a fight was precisely because he calculated that his continuing presence under their control had the potential to be very destabilizing for the occupation regime on a continuing basis... )

The politics of control of the IST is an important subject that is almost completely unreported by most US MSM journos, who seem generally happy to go along with the official fiction that it is under totally Iraqi control. Once you dig a little, the key role played by the RCLO becomes evident; and this role should surely be highlighted by the responsible media of a democratic country. Who, physically, controls the evidence? Who controls the court's infrastructure, including its security and IT systems? Such questions should be asked, fully investigated, and written about.

Personally, I think that if Saddam and his henchpeople were to be put on trial, matters would have been a lot clearer, politically, if the occupation authority itself had undertaken the task, and had gotten it "out of the way" very rapidly (in both respects, following the Nuremberg precedent.) As it is, the involvement of a supposedly Iraqi judicial body in these trials-- which unavoidably are "political" trials, and indeed are treated as such by both the US and the transitional Iraqi authorities-- does not necessarily bode well for the longer-term prospects of building a robustly independent judiciary in the country.

Regarding Christopher's specific point about the need for public memorials to the victims of Saddam's atrocities, we should note that the Iraq Memory Foundation, founded by Kanaan Makiya has placed this item on the agenda of national reconstruction since before March 2003, and has pursued it with vigor since then.

One of the themes within the "Iraqi Voices" report to which I linked in my original post (by ICTJ and the UC Berkeley Human Rights Center) was that the Iraqis surveyed felt that transitional justice mechanisms must be indigenous, because there was no outside actor whom the population would trust to act in an "honest broker" role. The United States, the UK, and their allies were mistrusted for the occupation; the United Nations over sanctions and oil-for-food; European states for their eagerness to trade with SH while sanctions were in place; and Arab states for their support, or at least tolerance, for SH despite his myriad crimes.

Many of the participants in the survey also expressed the desire for indigenous transitional justice mechanisms in ownership terms, stating that because the value of truth-seeking can be as much in the process as in its result, Iraqis needed to be the ones to carry it out. I think that to the extent one questions the effectiveness of various transitional justice institutions, this sentiment has to play a large role in informing any conclusion.

Yes, I remember that strong theme in "Iraqi Voices". I also strongly agree with the general proposition that-- if transitional justice mechanisms are to have lasting worth-- they should be indigenous.

Meanwhile, in Iraq Saddam had been not only deposed-- through an act of war of highly contested legality-- but also captured alive. No doubt something had to be done with him. (Though there are hundreds of other detainess held by the US inside and outside Iraq for whom a trial is nowhere on the foreseeable horizon.) But I think we need to be aware that the trial as it is being conducted is far from an exemplary model of a good, sound TJ mechanism-- and possibly also far from an exemplary model of a trial.

Actually, in Iraq, one of the main problems seems to me to be the highly unfinished and uncertain nature of the political transition itself. It is probably far too early to think of implementing any exemplary kinds of TJ mechanisms at all, though doubtless they should be planned for.

Helena wrote:

"among Iraqi Kurds and Shiites, inasmuch as the work of the IST is criticized, it is criticized for excessive restraint and slowness rather than for existing at all"

That could be because their basic position is "Off with his (Saddam's) head!" as quickly as possible, a position which has nothing to do with transitional justice as I understand it. So I don't think they should be counted in this respect as supporters of the process.

I also don't think the US could have got away with a court of their own. The Nuremburg trials had behind them and enormous moral status, which the USA doesn't have, however hard they may have tried to paint Saddam as the new Hitler, and themselves as the new Roosevelds and Churchills. It would have been a clear case of "second time as farce".

This situation is going to put the credibility of "transitional justice" as such under pressure. Helena is correct that it is too early. Transitional justice is surely only a balm to sooth the hurts of a compromise already reached. In this case there is no settlement yet. What is the difference between this trial of Saddam and the old concept of a "show trial"? I can't see any.